Himachal Pradesh High Court

Unknown vs Prabhakar Rajaram Kharote And ... on 8 April, 2021

Bench: Vivek Singh Thakur

Cr.M.P. (M) No. 689 of 2021

8.4.2021 Present: Mr.Ravinder Singh Jaswal, Advocate, for the

petitioner.

Mr.Raju Ram Rahi, Deputy Advocate General, for the respondent.

Petitioner Kuldeep Singh, who is duly identified by

his counsel, has surrendered in the Court and submitted himself

to the jurisdiction and orders of this Court, in case FIR No. 49 of

2021, dated 6.3.2021, under Sections 354, 323, 504, 506, 34 of

Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in

Police Station Rampur, District Shimla, H.P.

2. The Apex Court in Niranjan Singh and another Vs.

Prabhakar Rajaram Kharote and others, reported in 1980 (2)

CC 559/AIR 1980 SC 785, has observed as under:-

"6. ............We agree that no person accused of an offence can move the court for bail under Section 439 CrPC unless

he is in custody.

7. When is a person in custody, within the meaning of Section 439 CrPC? 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 of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-andseek 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 dubiotics are unfair evasions of

the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge

and the jurisdiction to grant bail thus arose.

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

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. ........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............."

3. The Apex Court in Directorate of Enforcement Vs.

Deepak Mahajan and another, (1994) 3 SCC 440 has explained

the word 'arrest' as under:-

"46. The word 'arrest' is derived from the French word 'Arreter' meaning "to stop or stay" and signifies a restraint of the person. Lexicological, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N., 1984 Cri. L.J. 134, had an occasion to go into the gamut of the meaning of the

word 'arrest' with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's

.

Law of England, A Dictionary of Law by L.B. Curzon,

Black's Law Dictionary and Words and Phrases. On the basis of the meaning given in those textbooks and lexicons, it has been held that:

"The word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty.

The question whether the person is under arrest or not, depends not on the legality of the arrest, but on r whether he has been deprived of his personal liberty to go where he pleases. When used in the legal

sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to

answer a criminal charge or of preventing the commission of a criminal offence. The essential

elements to constitute an arrest in the above sense are that there must be an intent to arrest under the

authority, accompanied by a seizure or detention of the person in the manner known to law, which is so

understood by the person arrested."

4. In aforesaid pronouncement in Deepak Mahajan's

case, referring various Sections in Chapter-V of Cr.P.C., titled

'Arrest of Persons' particularly under Sections 41 to 44, it has

been concluded that Cr.P.C. gives power of arrest not only to

Police Officer and a Magistrate but also, under certain

circumstances or given situation, to private persons and further

that when an accused person appears before the Magistrate or

surrenders voluntarily, the Magistrate is empowered to take that

accused person into custody and deal with him according to law.

5. On the basis of pronouncement of the Apex Court in

Niranjan Singh's case, this High Court in Karam Dass and 91

others vs. State of H.P., 1995 (1) Siml. L.C. 363, has held that

appearance and surrender of accused person in the Court

amounts to his custody in the Court and thus, he has to be

considered to have been arrested.

6. In view of ratio of law laid down in aforesaid

judgments, the petitioner is ordered to be arrested and is taken in

custody of HASI Naresh Kumar No. 248 and LC Kaushlya No.

1071, deputed in the Security of the High Court.

7. Petitioner has preferred the present petition for grant

of bail under Section 439 Cr.P.C. seeking regular bail after his

surrender and arrest in the Court.

8. Notice. Mr. Raju Ram Rahi, learned Deputy

Advocate General, appears and waives service of notice on

behalf of the respondent.

9. It is stated in the petition as well as submitted by

learned counsel for the petitioner that petitioner along with his

friend co-accused Manoj Kumar was returning to Rampur from

Kinnaur but as the petitioner was aware that they could not reach

Rampur well in time and was not able to have bus to his native

place, as such on request of co-accused Manoj Kumar, they got

two rooms reserved for their stay at Rampur at Bhima Kali

Temple Trust. Petitioner along with his friend arrived at about

11:30 P.M. at Rampur and reached the office of Trust and

requested to open rooms for them, but the office bearer of the

Trust gave key of only one room which was the cause of

altercation between Manoj and office bearer, which came to be

ended with intervention of petitioner and daughter of office bearer

of Temple Trust. However later on FIR in question has been

lodged by the complainant.

10. Learned counsel for the petitioner has prayed for

bail. He has submitted that the petitioner is ready to join the

investigation and furnish bail bonds in accordance with the

directions of this Court. Learned Deputy Advocate General seeks

time for production of record and filing status report.

11. In the aforesaid circumstances, I find that the

petitioner has made out a prima facie case for enlarging him on

bail, at this stage, subject to further orders to be passed on bail

petition, after considering the status report and submissions of

the State. Hence, the petitioner is ordered to be released on bail,

at this stage, on his furnishing personal bond in the sum of

`30,000/- with one surety in the like amount, at this stage to the

satisfaction of Registrar (Judicial)/Additional Registrar (Judicial)

during the course of the day, subject to the following conditions:-

i. That the petitioner shall report at Police Station, Rampur, Tehsil Rampur, H.P, on 9.4.2021 at 11.00 A.M. for interrogation and shall thereafter join the investigation on each subsequent date(s) as and when required by the Investigating Agency, in accordance with law;

ii. That the petitioner shall not hinder the smooth flow of the investigation and shall join the investigation on each and every date, as and when called by the Investigating Agency;