Roop Chand Bajaj vs State
2009 Latest Caselaw 88 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        BAIL APPLN. 2042/2008

         ROOP CHAND BAJAJ                         ..... Petitioner
                   Through: Mr. Aman Lekhi, Senior Advocate
                    with Mr. Jaspreet S. Rai, Advocate.

                               versus

         STATE                                                ..... Respondent
                                  Through: Mr. Sunil Mittal, Advocate.
                                  Mr. Pawan Behl, APP for State.

         CORAM:
         HON'BLE DR. JUSTICE S. MURALIDHAR


         1.       Whether Reporters of local papers may be
                  allowed to see the order?                           No

         2.       To be referred to the Reporter or not?              Yes

         3.       Whether the judgment should be reported
                  in Digest?                                           Yes

                                         ORDER

15.01.2009

1. This is a petition seeking regular bail in FIR No. 366 of 2007

under Sections 420,467,468,471 read with 34 IPC registered at Police

Station Kalkaji. The complainant and the Petitioner accused are real

brothers. The Petitioner is one year younger than the complainant.

2. Two facts which are not in dispute need to be stated at the outset.

The Petitioner had already undergone six months' of judicial custody.

Further, the charge sheet in the case has already been filed on 1 st July

2008.

3. Keeping in view the fact that the complainant and the Petitioner

Bail Appln. No. 2042 of 2008 page 1 of 9 are real brothers, an attempt was made by the parties to settle their

disputes and in that context the following order was passed in this

Court on 31st October 2008.

"After some arguments, Mr. Sunil Mittal concedes that the petitioner be granted interim bail in order to enable this court to explore the possibility of a comprehensive settlement between the petitioner and the complainant. In this view of the matter, pending disposal of the present application, which is for regular bail, the petitioner shall be released on interim bail on his furnishing personal bond in the sum of Rs.20,000/- and one surety in the like amount to the satisfaction of the trial court. The petitioner shall remain on interim bail for a period of one month from the date of his release. During this period, he shall not leave Delhi without the permission of the court.

It is made clear that the grant of interim bail shall not in any way affect the merits of the case of the petitioner or of the complainant/State.

The petitioner and the complainant shall remain present in court on the next date.

List on November 24, 2008.

Dasti."

4. The Court was informed on the subsequent date i.e. 24th November

2008 that the attempt at arriving a settlement had failed. In that

context the bail application was directed to be heard and the interim

Bail Appln. No. 2042 of 2008 page 2 of 9 bail was extended.

5. Mr. Lekhi, learned Senior counsel appearing for the Petitioner

submits that the Petitioner has during the pendency of the present

petition undergone a heart surgery and has been convalescing. He

submits that when the charge sheet has already been filed there is no

question of Petitioner interfering with the investigation. Given the

age of the Petitioner, the nature of the allegations and the fact that he

has already undergone six months' of judicial custody there is,

according to him, no justification in denying regular bail to the

Petitioner.

6. Mr. Behl, learned APP for the State however opposes the grant

of bail. He refers to the judgment of the Supreme Court in Sunita

Devi v. State of Bihar AIR 2005 SC 498 and Naresh Kumar Yadav

v. Ravindra Kumar AIR 2008 SC 218 to urge that the Petitioner

should first surrender and be "in custody" at the time of the court

granting him regular bail. It is submitted that without this condition

being satisfied the Petitioner cannot seek regular bail.

7. Mr. Sunil Mittal, learned counsel for the complainant has also

been heard at length. Apart from reiterating the aforementioned

objection to the grant of regular bail he submits that the grant of

regular bail should not come in the way of the parties exploring the

possibility of a settlement. He states that the bank accounts of the

Petitioner should be attached pending the trial and that some Bail Appln. No. 2042 of 2008 page 3 of 9 directions should be given concerning the absconding accused Rajesh

Bajaj. He further submits that the grant of bail to the accused

petitioner in the present case should not create a precedence for other

co-accused.

8. This Court will first deal with the technical objection raised by

learned APP for the State on the strength of the judgment in Sunita

Devi. It is seen from the said judgment that the Supreme Court first

referred to the earlier decision in Niranjan Singh v. Prabhakar

Rajaram Kharote AIR 1980 SC 785 and observed in para 14 (of

Sunita Devi) that "in view of the clear language of Section 439 and

in view of the decision of this Court in Niranjan Singh v. Prabhakar

Rajaram Kharote, there cannot be any doubt that unless a person is

in custody, an application for bail under Section 439 of the Code

would not be maintainable."

9. It is seen from the judgment of the Supreme Court in Niranjan

Singh that the said judgment was given in the context of an

application for regular bail and the Supreme Court explained what

was meant by accused having to be in judicial custody. The

observations in para 8 and 9 of the said judgment which are relevant

in the present context read as under:

"Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section

438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.

Bail Appln. No. 2042 of 2008 page 4 of 9

9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of Section 439 Cr.P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below."

10. It is clear from the above directions that an accused can be said

to be in judicial custody "when he surrenders before the Court and

Bail Appln. No. 2042 of 2008 page 5 of 9 submit to its directions." Reverting to the decision in Sunita Devi

the Supreme Court further expanded on the aforementioned judgment

in Niranjan Singh and held as under:

"15. The crucial question is when a person is in custody, within the meaning of Section 439 of the Code? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold to an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.

16. Since the expression "custody" though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in setting in which it is used and the provisions contained in Section 437 which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances Bail Appln. No. 2042 of 2008 page 6 of 9 which can be characterized as "in custody" in a generic sense. The expression "custody" as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate."

The subsequent decision in Naresh Kumar Yadav reiterated the

above position in law.

11. As far as the present case is concerned there can be no manner

of doubt that the requirement of the accused having to surrender to

the Court would, in the context of Section 439, included the High

Court as well. Where the interim bail has been granted by the High

Court pending consideration of the regular bail, no doubt the High

Court would have to ensure that the accused surrenders before his

prayer for a regular bail can be entertained. It is clear from the

reading of Section 438 that an application for regular bail could be

made as much to the High Court as to the subordinate court and there

is nothing in the judgments referred to hereinabove which indicate

that the surrender by the accused can be only to the subordinate court

and not to the High Court before which the main application for Bail Appln. No. 2042 of 2008 page 7 of 9 regular bail is pending consideration. As observed in Niranjan

Singh, the present proceedings concern the grant of regular bail and

not anticipatory bail. The order dated 31st October 2008 granting

interim bail was passed in an application for regular bail which was

filed at a time when the Petitioner was still in custody.

12. The Petitioner is present in Court. He has been identified not

only by his counsel but by the IO. The requirement of the law that the

Petitioner should surrender to the Court before regular bail can be

granted to him, therefore, stands satisfied. The technical objection is

therefore rejected.

13. As regards the merits of the case, given the fact that the charge

sheet has already been filed and the Petitioner has already undergone

six months' pre-trial custody, this Court is satisfied that a case has

been made out by the Petitioner for grant of bail. Further, Mr.

Lekhi, learned Senior counsel for the Petitioner on instructions states

that the Petitioner is still willing to explore the possibility of

settlement in future as well as long as the failure to arrive at a

settlement is not used as a ground to seek cancellation of the bail.

Mr. Sunil Mittal for the complainant adds that the complainant will

not use the failure to arrive at a settlement as a ground to seek

cancellation and that he would also advise his client to further

explore the possibility of a settlement. Both counsel assure the Court

that the parties being real brothers, a genuine attempt will be made to

solve the disputes amicably.

Bail Appln. No. 2042 of 2008 page 8 of 9

14. In the facts and circumstances, it is directed that the Petitioner be

released on bail on the same terms and conditions on which the

interim bail was granted by the order dated 31 st October 2008 to the

satisfaction of the trial court. The Petitioner will appear before the

trial court and a formal order will be passed by the trial court in terms

of today's order. The Petitioner will appear before the trial court on

every date the case is listed there and will not seek any unnecessary

adjournment. He will ensure that the fair progress of the trial is not

impeded in any manner whatsoever. He shall not leave India without

the permission of the trial court.

15. The petition is disposed of.

16. A copy of this order be given dasti to learned counsel for the

parties.

S. MURALIDHAR, J.

JANUARY 15, 2009
dn




Bail Appln. No. 2042 of 2008                                 page 9 of 9