Accused can directly approach the High Court and Sessions Court for regular Bail, not necessary that accused should apply to the Magistrate first: Supreme Court

In a path-breaking Judgment, a two-Judge Bench of the Supreme Court in Sundeep Kumar Bafna vs State Of Maharashtra AIR 2014 SC 1745 held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail.The case arises out of a Special Leave Petition seeking regular bail under Section 439 of the Code of Criminal Procedure (CrPC), which was declined by the High Court of Mumbai, with the observations that it is the Magistrate whose jurisdiction has necessarily to be invoked and not of the High Court or the Sessions Judge. The prayer by the accused before the High Court was to permit him to surrender to its jurisdiction, and thus by offering himself to custody, seeking grant of regular bail under Section 439 of the Code, on such terms and conditions as may be deemed fit and proper. According to the Single Judge, when the Accused's plea to surrender before the Court is accepted and he is assumed to be in its custody, the police would be deprived of getting his custody, which is not contemplated by law, and thus, the Accused "is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of CrPC by the Magistrate and that order cannot be passed at the High Court level."While setting aside the High Court Judgement, the Supreme Court has elaborated the scope of Section 437 and 439 of Cr.P.C. In Paragraph No-11, it holds; "Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts.""The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word 'custody' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of 'Committal of cases to the Court of Session' because of a possible hiatus created by the CrPC. Meaning of Custody:Since the terms 'custody', 'detention' or 'arrest' have not been defined in the CrPC, the Court, elaborately and eruditely discusses the meaning of 'custody'. The Court relies on Justice Iyer's decision in Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2 SCC 559 and quotes from the Judgment, thus ; "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 dubieties are unfair evasions of the straightforwardness of the law. " The Court comes to a conclusion that since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a Superior...

Accused can directly approach the High Court and Sessions Court for regular Bail, not necessary that accused should apply to the Magistrate first: Supreme Court

M.A.Rashid

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