Section 3(1)(R)(Y) Of The ... vs Prabhakar Rajaram Kharote And ...
2021 Latest Caselaw 1951 HP

CRMPM No.469/2021

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10.3..2021 Present: Mr. Manohar Lal Sharma, Advocate, for the petitioner.

Mr. Desh Raj Thakur, Additional Advocate

General, for the respondent-State.

Petitioner Shakti Swaroop, 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.64 of 2021, dated 27.2.2021, registered under

Section 3(1)(r)(y) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 read with Section

34 of the Indian Penal Code, in Police Station Nalagarh,

District Solan, Himachal Pradesh.

12. The Apex Court in Niranjan Singh and another

Vs. Prabhakar Rajaram Kharote and others, reported in 1980

(2) SCC 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-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

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

13. 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

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one's personal liberty. The question whether the person is under arrest or not, depends not

on the legality of the arrest, but on 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 r person in the manner known to law, which is so understood by the person arrested."

14. 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.

15. 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.

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

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judgments, the petitioner is ordered to be arrested and is

taken in custody of HHC Ramesh No.352, Constable Vijender

Singh No.721, under the supervision of ASI Nikka Ram,

Incharge, deputed in the Security of the High Court.

17. Petitioner has preferred the present petition for

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r to grant of bail under Section 439 Cr.P.C. seeking regular bail

after his surrender and arrest in the Court.

Notice. Mr. Desh Raj Thakur, learned Additional

Advocate General, appears and waives service of notice on

behalf of the respondent.

19. It is submitted in the petition as well as by

learned counsel for the petitioner that the petitioner is an

innocent person and has been falsely implicated in the

present case, having no connection with the alleged offence.

20. 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 Additional Advocate

General seeks time for production of record and filing status

report.

21. 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

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be released on bail, at this stage, on his furnishing personal

bond in the sum of `50,000/- to the satisfaction of Registrar

(Judicial)/Additional Registrar (Judicial)/Deputy Registrar

(Judicial) during the course of the day, subject to the

following conditions:-

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(vii) That the petitioner shall report at Police Station, Nalagarh, District Solan, H.P, on 11.3.2021 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;

(viii) 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;

(ix) That the petitioner shall not jump over the

bail and also shall not leave the State of Himachal Pradesh without prior information of the Court;

(x) That the petitioner shall not tamper with the prosecution evidence or, in any manner, try to overawe or influence the prosecution witnesses; and

(xi) It is clarified that violation of any of the conditions imposed shall disentitle the petitioner to continue on bail.

(xii) That the petitioner shall not leave India without permission of the Court.

List for consideration on 18th March, 2021.

Dasti copy on usual terms.

                                              ( Vivek Singh Thakur )
    March 10, 2021                                   Judge.
       (sd)