Dhanendra Singh Bhadoriya vs The State Of Madhya Pradesh
2021 Latest Caselaw 829 MP

                 HIGH COURT OF MADHYA PRADESH
              1                                   M.Cr.C.No.1873/2021
         ( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

Gwalior Bench:
Dated -18/03/2021
     Shri Manish Dutt, learned senior counsel with Shri Vivek

Khedkar counsel for the applicant through Video Conferencing.

         Shri Pramod Pachauri, learned PP for       respondent No.

1/State.

Shri F.A.Shah, learned counsel for respondent No.

2/complainant.

Heard learned counsel for the parties. Perused the case

diary.

The applicant has filed this second bail application u/S.439

Cr.P.C (according to complainant this is first application) for

grant of bail.

At the outset, learned counsel for the

respondent/complainant opposed the prayer on the ground of

maintainability of the application filed under Section 439 of

Cr.P.C. because according to him, applicant is still at large and

not submitted himself to the course of justice or jurisdiction of

this Court and he is not in confinement.

Looking to the objection raised by counsel for the

complainant, matter is heard on preliminary objection so raised

regarding maintainability of application under Section 439 of HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

Cr.P.C.

According to learned senior counsel (appearing through

Video Conferencing) for the applicant, present application is

second application and while placing reliance over the course of

events, learned senior counsel for the applicant submits that

applicant is within the jurisdiction of this Court, although he is

not in custody but still, application under Section 439 of Cr.P.C. is

maintainable.

According to him, respondent No. 2 filed a private

complaint against the present applicant (who happens to be a

Police Officer) for alleged offence punishable under Sections 147,

323, 342, 365, 380, 458/149 of IPC and vide order dated

14/9/2016, Court of Judicial Magistrate First Class, Datia took

cognizance against eight accused persons and non-bailable

warrants were issued against all the accused persons including the

applicant. A petition under Section 482 of Cr.P.C. vide M.Cr.C.

No. 13924/2016 was preferred by some of the accused persons

but same got dismissed by this Court vide order dated 29/10/2018

and matter travelled up to Apex Court by way of SLP (Criminal)

No. 1926/2019 but same got dismissed vide order dated

12/02/2020 in which 10 days time was given to the said HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

applicants to surrender and seek regular bail.

Meanwhile, a petition under Article 226/227 of the

Constitution of Inida was preferred by the complainant vide

W.P.No. 13781/2020 for calling status report and vide order dated

13/10/2020, State gave undertaking to execute non-bailable

warrants as well as order of this Court.

It further appears that proceeding under Sections 82/83 of

Cr.P.C. against present applicant was initiated, therefore, a

petition under Section 482 of Cr.P.C. vide M.Cr.C.No.

43332/2020 was preferred by the present applicant which was

dismissed vide order dated 18/11/2020; whereby, liberty was

given to the applicant to surrender before the trial Court within

seven days with a further direction that if any adverse order is

passed on surrender, same shall not be given effect to for a period

of 15 days. It appears that applicant appeared before concerned

trial Court and moved application for bail but latter on applicant

withdrew the application filed under Section 439 of Cr.P.C. vide

order dated 11/12/2020.

Since, fresh warrant of arrest was issued against the

applicant and other co-accused, therefore, a petition under Section

482 of Cr.P.C. vide M.Cr.C.No. 50604/2020 was preferred again HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

and further seven days was given to the applicant vide order dated

6/1/2021 by this Court and in compliance thereof, an application

under Section 439 of Cr.P.C. was moved by the applicant but

same stood dismissed vide order dated 8/1/2021 and on

13/3/2021, perpetual warrant has been issued by the concerned

Court against all the absconding accused persons including

present applicant. Therefore, this application has been preferred

under Section 439 of cr.P.C. taking exception to order dated

8/1/2021 passed by Court below.

Learned senior counsel for the applicant further submits

that application is maintainable because breathing time was given

by this Court in the case referred above and during that time, he

tried to avail the benefit of bail but his application was rejected.

Still he has not absconded and is available within the jurisdiction

of this Court, although, he is not in custody. He relied upon

decision of Apex Court in the matter of Sundeep Kumar Bafna

Vs. State of Maharashtra and Anr., (2014) 16 SCC 623 and

submits that even if, the applicant is not in custody even then,

application under Section 439 of Cr.P.C. is maintainable.

On the other hand, learned counsel for the State and

complainant opposed the prayer and submit that unless the HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

applicant goes into custody, his application under Section 439 of

Cr.P.C. is not maintainable.

Heard learned counsel for the parties on the point of

maintainability of instant bail application.

In the case in hand, it is admitted position that applicant

was initially given some breathing time by this Court vide order

dated 18/11/2020 in M.Cr.C.No. 43332/2020 and thereafter vide

order dated 6/1/2021 in M.Cr.C.No. 50604/2020, but after lapse

of such period, applicant did not submit to the course of justice.

Further, he neither remained present before the Court of

competent jurisdiction or before this Court nor is in custody

thereafter. On the date of hearing of instant application also,

applicant was not present in the Court, therefore, it appears that

he has not in any manner submitted before the jurisdiction of trial

Court or of this Court.

This aspect has been dealt with by Apex Court in the case

of Niranjan Singh and Anr. Vs. Prabhakar Rajaram Kharote

and Ors., AIR 1980 SC 785 and relevant paragraphs (para 6 to 0)

are reproduced for ready reference:-

"6.Here the respondents were accused of offences but were not in custody, argues the petitioner. So no bail, since this basic condition of being in jail is HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged.

We agree that no person accused of an offence can move the court for bail under s. 439 Cr. P.C. unless he is in custody.

7. When is a person in custody, within the meaning of s.439 Cr. P.C. ? 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 s. 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 HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

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. 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 s. 439, (we are not, be it noted, dealing with anticipatory bail under s.438) is physical control or an 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. 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 maybe, enabled the accused persons to circumvent the HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

principle of s. 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 Art. 136 do not feel that we should interfere with a discretion exercised by the two courts below." Therefore, if the factual matrix of the case is tested on the

anvil of legal guidance referred above by Apex Court then it

appears that at present, applicant is not in custody or within the

jurisdiction of this Court, therefore, his application is not

maintainable.

So far as, the judgment over which applicant placed his HIGH COURT OF MADHYA PRADESH

( Dhanendra Singh Bhadoriya Vs. State of M.P. & Anr.)

reliance is concerned, said judgment reiterates the law laid down

by the Apex Court in the case of Niranjan Singh (supra).

Here, applicant despite availed of breathing time twice to

surrender and seek legal remedies, did not adhere to the directions

given by this Court, therefore, looses the sheen of arguments and

does not deserve consideration, however, in the interest of justice,

to give applicant a chance, applicant is directed to surrender on or

before 25th of March, 2021 before trial Court and if he surrenders

as per direction, then he shall be relegated to judicial custody/Jail,

thereafter this application shall be heard on merits on 26 th March,

2021. This would be a precondition for hearing the bail

application on merits. It is made clear that this direction is given

in the interest of justice so that matter can be heard and decided

on its own merits.

List on 26th March, 2021.

(Anand Pathak) Judge jps/-

JAI Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH

PRAKASH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf17 9cec865c7633f4cfb9e38ce14fcbb05b9522

SOLANKI a, cn=JAI PRAKASH SOLANKI Date: 2021.03.23 17:36:43 +05'30'