Himachal Pradesh High Court

Unknown vs Prabhakar Rajaram Kharote And ... on 23 March, 2021

Bench: Vivek Singh Thakur

Cr.M.P.(M) No. 560 of 2021

23.03.2021 Present: M/s Sunil Mohan Goel and Paras Dhaulta, Advocates, for the petitioner alongwith petitioner Puran Chand present in person.

Mr. Desh Raj Thakur, Additional Advocate General, for the respondent-State.

Petitioner Puran Chand, 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.22 of

2021 dated 21.03.2021, under Section 3 (1)(r)(s) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, and Sections 323, 504 and 506 read with

Section 34 of the Indian Penal Code (in short 'IPC), registered in

Police Station Janjheli, District Mandi, H.P.

2. 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 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. rThe 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 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 Constable Vishal No.738 and Lady Constable

Narvada Devi No.1593, under the supervision of ASI Nikka Ram,

Incharge, 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

their surrender and arrest in the Court.

8. Notice. Mr. Desh Raj Thakur, learned Additional

Advocate General, appears, waives and accepts service of

notice on behalf of the respondent-State.

9. It is submitted on behalf of the petitioner that as a

matter of fact an FIR has been lodged by the petitioner against

the complainant in present case, which has been registered as

FIR No.21 of 2021 in Police Station Janjheli and the FIR in

present case bearing No.22 of 2021 dated 21.03.2021 has been

registered thereafter in order to justify the act of the

complainant for which petitioner has lodged the FIR.

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 Additional 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 in his favour 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 furnishing his personal

bond in the sum of `50,000/- 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, Janjheli, District Mandi, H.P, on 24.03.2021 at 11.00 A.M. for interrogation and shall thereafter join the investigation on each subsequent date 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;