6 Sep 2022 5:00 AM GMT
The Madhya Pradesh High Court recently reiterated that an accused appearing before the trial court, pursuant to a notice served upon them by the police for filing of charge-sheet, is deemed to be under the custody of the court. Accordingly, their application under Section 439 CrPC would be maintainable and that the same should not be rejected on the technicality that they were never arrested...
The Madhya Pradesh High Court recently reiterated that an accused appearing before the trial court, pursuant to a notice served upon them by the police for filing of charge-sheet, is deemed to be under the custody of the court. Accordingly, their application under Section 439 CrPC would be maintainable and that the same should not be rejected on the technicality that they were never arrested by the police.
The bench comprising of Justice Vishal Dhagat further held that the application under Section 439 CrPC moved by the accused in the aforesaid circumstances ought to be decided on merits-
Trial Courts are directed that when an accused appear before the trial Court after receiving notice from police station for filing of charge-sheet, then on his appearance such accused person is deemed to be under custody of Court and his application under Section 439 Cr.P.C. is maintainable and he may not be sent to jail unnecessarily. Application filed under Section 439 Cr.P.C. shall be considered on merits in accordance with law and it may not be rejected on technical reason that he is not arrested therefore, not in custody. Appearance of accused before Court amounts to custody.
Facts of the case were that the Applicant was apprehending his arrest in connection with a FIR registered against him for offences punishable under Sections 294, 323, 354, 506 IPC. His application for anticipatory bail before the lower court was rejected. Thus, he moved another application under Section 438 CrPC before the Court.
The Applicant submitted that he was issued a notice under Section 41-A CrPC by the police to remain present before the trial court for filing of charge-sheet in his case. He then pointed out the ubiquitous practice in the trial courts, wherein cases, such as that of the Applicant, application for bail under Section 439 CrPC were being rejected on the ground that accused were not in police custody. He further submitted that in many of such cases, trial courts were sending the accused to jail. To bolster his grievance, he referred to the observations of the Apex Court in Siddharth v. State of Uttar Pradesh & Anr.
Stressing upon his apprehension of arrest, the Applicant asserted that he had filed the application for grant of anticipatory bail as he was worried that he could fall victim to the prevalent practice being followed by the lower courts since he was not in custody and could thus be sent to jail.
Examining the submissions of parties and documents on record, the Court deemed the case of the Applicant to be fit for grant of anticipatory bail. Accordingly, the application was allowed. The Court further directed the Registry to send copies of the order to district judges for circulation of the same in trial courts.
Case Title: CHANDRABHAN KALOSIYA VERSUS STATE OF MADHYA PRADESH
Citation: 2022 LiveLaw (MP) 201
Click Here To Read/Download Order