# Ram Prem & Ors v. State of U.P

- **Citation:** (2023) 7 ILRA 689
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-18
- **Case number:** Criminal Misc. Bail Application No. 12441 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prem-ors-v-state-of-u-p-50593
- **Pages:** 13

## Headnote

Law
-
Code
of
Criminal
Procedure,1973 - Section 437 -Application
under Section 439 Cr.P.C. cannot be entertained
for the reason that the applicants are not in
custody-applicants were granted liberty to
appear before the Magistrate and file a fresh
application under Section 437 Cr.P.C.-rejectedapplicants filed an application under Section 437
Cr.P.C. seeking their release on bail in the
aforesaid case-rejected after recording that the
applicants were not present before the Court.
The non-bailable warrants issued against the
applicants - returned by the police with a report
that the same could not be served upon the
applicants- evading service. mere appearance or
being brought before the Court is necessary for
his request for being released on bail and the
Section does not lay down any further
mandatory condition- granted liberty to file a
fresh application under Section 437 Cr.P.C.

Application disposed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,956 of 43,241. This is a partial read: ask again with offset=39956 for what follows._

7 All. Ram Prem & Ors. Vs. State of U.P.
689
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.
----------
(2023) 7 ILRA 689
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.07.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 12441 of
2022

Ram Prem & Ors. ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Ranjeet Kumar, Desh Mitra Anand

Counsel for the Opposite Party:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 437 -Application
under Section 439 Cr.P.C. cannot be entertained
for the reason that the applicants are not in
custody-applicants were granted liberty to
appear before the Magistrate and file a fresh
application under Section 437 Cr.P.C.-rejectedapplicants filed an application under Section 437
Cr.P.C. seeking their release on bail in the
aforesaid case-rejected after recording that the
applicants were not present before the Court.
The non-bailable warrants issued against the
applicants - returned by the police with a report
that the same could not be served upon the
applicants- evading service. mere appearance or
being brought before the Court is necessary for
his request for being released on bail and the
Section does not lay down any further
mandatory condition- granted liberty to file a
fresh application under Section 437 Cr.P.C.

Application disposed. (E-9)

List of Cases cited:
1. Satendra Kumar Antil Vs Central Bureau of
Investigation, (2021) 10 SCC 773

2. St. of Mah. Vs Ramdas Shrinivas Nayak,
(1982) 2 SCC 463

3. Bhavnagar University Vs Palitana Sugar Mills
Pvt. Ltd. Vs & anr., (2003) 2 SCC 111

4. Niranjan Singh Vs Prabhakar Rajaram
Kharote, (1980) 2 SCC 559

5. Sundeep Kumar Bafna Vs St. of Mah., (2014)
16 SCC 623

6. Gurcharan Singh Vs St. (Delhi Admn.), (1978)
1 SCC 118 : 1978 SCC (Cri) 41

7. St. of Haryana Vs Bhajan Lal, 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426

8. Satender Kumar Antil Vs CBI, (2021) 10 SCC 773

9. Siddharth Vs St. of U.P., (2022) 1 SCC 676 :
(2022) 1 SCC (Cri) 423

10. Satender Kumar Antil Vs Central Bureau of
Investigation Vs& anr., 2023 SCC OnLine SC
452/SC 758

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri. Desh Mitra Anand
Advocate, assisted by Sri. Utkarsh Anand
Advocate, the learned Counsel for the
applicants, Sri. Kuldeep Pati Tripathi, the
learned Additional Advocate General, who
is assisted by Sri. Rao Narendra Singh, the
learned A.G.A.-I and Sri. Chinmay Shukla
for the State.

2. By means of the present application,
the applicants have prayed for grant of bail to
them in Case Crime No. 105/2021 under
Sections 147, 148, 149, 308, 323, 325, 427,
452, 504 and 506 I.P.C., Police Station
Nagram, District Lucknow.

3. The F.I.R. was lodged by the
informant Rajaram at 14:04 on 05.05.2021
690 INDIAN LAW REPORTS ALLAHABAD SERIES
against four persons - (1) Ram Pal, (2)
Sandeep, (3) Shyamlal and (4) Shyamdeo
alleging that at about 7 a.m. on the
aforesaid date, the aforesaid four named
persons had abused and beaten up the
informant with sticks and when his wife ran
to save him, she was also beaten with a
stick causing an injury on her head. The
accused persons thrown away the goods of
the informant shop and they had beaten up
some other persons also.

4. In the statement of the informant
recorded under Section 161 Cr.P.C., he
reiterated the F.I.R. version that the
incident was caused by the four persons
named in the F.I.R. All the four named
accused persons were arrested at 3:20 on
06.05.2021.

5. The Investigating Officer recorded
in the case diary on 09.05.2021 that eight
persons, including the informant, had
received injuries in the incident. The
investigating officer recorded statements of
all the injured persons and all of them
stated that the four persons named in the
F.I.R. had beaten them. After recording
their statements, the investigating officer
added Section 308 IPC.

6. On 10.05.2021, the investigating
officer recorded statements of two persons,
who claimed to be eyewitnesses of the
incident and they stated that besides the
four named persons, all the applicants and
one Satguru, where also involved in
causing the incident and they stated that
police force from the police station and 112
had reached the spot of the incident.

7. Thereafter the investigating officer
recorded
additional
statement
of
the
informant wherein he also implicated the
applicants and Satguru, besides the named
accused persons.

8. In the affidavit filed in support of
the bail application it has been stated that
the applicants were not served with any
notice under Section 41 A Cr.P.C. and they
were not arrested during trial.

9. The applicants had filed application
under Section 482 Cr.P.C. No. 1735 of
2022 for quashing of the proceedings.
While dismissing the aforesaid application,
this Court observed that in case the
applicants
move
an
application
for
discharge within a period of 15 days, the
same shall be considered and disposed of
expeditiously in accordance with the law.
Liberty was granted to the applicants to file
an application under Section 205 Cr.P.C.
for exemption from appearance.

10. The Application under Section
205 Cr.P.C. filed by the applicants was
rejected by the Magistrate on the ground
that the offences alleged are triable by the
Sessions Court and the Magistrate is not
empowered to decide the plea of discharge
and to frame charges. The Magistrate
rejected another application filed by the
applicants for accepting their undertaking
in terms of the direction of the Hon'ble
Supreme Court in the case of Satendra
Kumar Antil Versus Central Bureau of
Investigation, (2021) 10 SCC 773, on the
ground that the Hon'ble Supreme Court has
conferred a discretion to be exercised in
respect of the persons who are intending to
participate in the trial of the case whereas
the applicants are not appearing before the
trial Court and they are not co-operating
with the trial.

11. The applicant challenged the
aforesaid order passed by the Magistrate by
filing another Application under Section
482 No. 3564 of 2022, which was disposed
off by means of an order dated 08.06.2022
by issuing a direction to the Magistrate that
7 All. Ram Prem & Ors. Vs. State of U.P.
691
if any regular bail application is moved by
the
applicants
within
15
days,
the
Magistrate shall be under an obligation to
dispose off the same after providing an
opportunity of hearing to the parties,
strictly in accordance with the law laid
down by the Hon'ble Supreme Court in
Satender Kumar Antil (supra), specially the
procedure provided in the above case for
offences described under Category 'A'
without fail. This Court further noted that: -

"It is recalled that when the
applicants were litigating bonafidely by filing
an application under Section 482 Cr.P.C.
before this Court and has also moved certain
applications before the Magistrate concerned
under the orders of this Court, the Magistrate
concerned should not be in a hurry to issue
coercive process against them. Thus this Court
hope and trust that the Magistrate concerned
or the trial Court as the case may be shall act
strictly in accordance with the law laid down
by Hon'ble Supreme Court in Satender Kumar
Antil (supra)"

12. The applicants filed an application
under Section 437 Cr.P.C. seeking their release
on bail in the aforesaid case. The application
bears the thumb impressions of the applicants.
The application was rejected by the Additional
Chief Judicial Magistrate IV, Court No. 28,
Lucknow, by means of an order dated
16.06.2022 after recording that the applicants
were not present before the Court. The nonbailable warrants issued against the applicants
have been returned by the police with a report
that the same could not be served upon the
applicants are evading service. The applicants
are charged with commission of cognizable,
non-bailable,
non-compoundable
offence
which is triable by the Session Court.

13. On 21.06.2022 the applicants filed
an application under Section 439 Cr.P.C.
before the Session Court for their release
on bail. This application also bears the
thumb impressions of the applicants. This
application too has been rejected by means
of an order dated 12.07.2022 passed by the
Additional District and Session Judge,
Court No. 3, Lucknow. Thereafter the
applicants have filed the instant Application
for grant of bail under Section 439 Cr.P.C.

14. Sri. Kuldeep Pati Tripathi, the
learned Additional Advocate General, has
raised a primary objection against the
application
stating
that
the
instant
application has been filed under Section
439 Cr.P.C., which empowers the Court to
direct release of a person on bail who is
accused of an offence and in custody. The
applicants are not in custody and, therefore,
their application under Section 439 Cr.P.C.
is not maintainable. Shri Tripathi has
submitted that although the word custody
has been interpreted in a broad sense, still,
at least physical presence of the accused in
the Court is necessary for consideration of
an application under Section 439 Cr.P.C.
Sri. Tripathi has further submitted that in
case an accused person has the liberty to
seek bail under Section 439 Cr.P.C. without
even his physical presence in the Court,
there will be no distinction between a bail
application under Section 439 Cr.P.C. and
application for anticipatory bail under
Section 438 Cr.P.C. and the purpose of
regular bail under Section 439 Cr.P.C.
would be frustrated.

15. Per contra, the learned counsel for
the applicant has submitted that the
applicants were present in the Court of the
Magistrate at the time of submission of the
bail application, which fact is evident from
the fact that the applicants have put their
thumb impressions on the application. He
has submitted that the applicants were
present at the time of the hearing on the
692 INDIAN LAW REPORTS ALLAHABAD SERIES
application. Relying upon the law laid
down by the Hon'ble Supreme Court in
Satender Kumar Antil supra, the learned
Counsel for the Applicants has submitted
that there is no need for the applicants been
taken into custody and their physical
presence in the Court was sufficient for
consideration of their bail application.

16. Section 437 of the Cr.P.C., which
provides for grant of bail in non-bailable
offences, provides that "When any person
accused of, or suspected of, the commission
of any non-bailable offence is arrested or
detained without warrant by an officer-incharge of a police station or appears or is
brought before a Court other than the
High Court or Court of Session, he may be
released on bail"

17. Thus mere appearance or being
brought before the Court is necessary for
his request for being released on bail being
considered and the Section does not lay
down any further mandatory condition.

18. The applicants claim that they
were present in the Court of the Magistrate
at the time of submission of the bail
application but what is relevant is that the
applicants
must
appear
before
the
Magistrate at the time when the application
under Section is being considered. The
mere fact that the applicants have put their
thumb impressions on the application does
not prove that the applicants were present
before the Magistrate at the time of
consideration of their bail application.

19. The Magistrate has specifically
recorded in this order that the applicants
were not present before the Court at the
time
of
consideration
of
the
bail
application. The learned Counsel for the
applicant has disputed the correctness of
this fact recorded by the Magistrate in his
order.

20. In State of Maharashtra v.
Ramdas Shrinivas Nayak, (1982) 2 SCC
463, the High Court had recorded that the
Counsel had made a concession before the
Court, which fact was disputed by the
Counsel before the Hon'ble Supreme
Court. The Hon'ble Supreme Court held
that: -

"4....We are afraid that we
cannot launch into an enquiry as to what
transpired in the High Court. It is simply
not done. Public policy bars us. Judicial
decorum restrains us. Matters of judicial
record are unquestionable. They are not
open to doubt. Judges cannot be dragged
into the arena. "Judgments cannot be
treated as mere counters in the game of
litigation." [ Per Lord Atkinson in
Somasundaram Chetty v. Subramanian
Chetty, AIR 1926 PC 136 : 99 IC 742] We
are bound to accept the statement of the
Judges recorded in their judgment, as to
what transpired in Court. We cannot allow
the statement of the Judges to be
contradicted by statements at the Bar or by
affidavit and other evidence. If the Judges
say in their judgment that something was
done, said or admitted before them, that
has to be the last word on the subject. The
principle is well-settled that statements of
fact as to what transpired at the hearing,
recorded in the judgment of the Court, are
conclusive of the facts so stated and no one
can contradict such statements by affidavit
or other evidence. If a party thinks that the
happenings in Court have been wrongly
recorded in a judgment, it is incumbent
upon the party, while the matter is still
fresh in the minds of the Judges, to call the
attention of the very Judges who have made
the record to the fact that the statement
made with regard to his conduct was a
statement that had been made in error. [
Per Lord Buckmaster in Madhu Sudan
7 All. Ram Prem & Ors. Vs. State of U.P.
693
Chowdhri v. Chandrabati Chowdhrain, AIR
1917 PC 30 : 42 IC 527] That is the only
way to have the record corrected. If no such
step is taken, the matter must necessarily
end there. Of course a party may resile and
an appellate Court may permit him in rare
and appropriate cases to resile from a
concession
on
the
ground
that
the
concession
was
made
on
a
wrong
appreciation of the law and had led to
gross injustice; but, he may not call in
question the very fact of making the
concession as recorded in the judgment."

21. The aforesaid decision has been
followed in Bhavnagar University versus
Palitana Sugar Mills Pvt. Ltd. and
another, (2003) 2 SCC 111.

22. Therefore, the fact recorded by the
Magistrate in his Order that the applicants
were not present before the Court at the
time
of
consideration
of
the
bail
application, cannot be disputed and it has to
be accepted that the applicants had not
appeared before the Magistrate at the time
of consideration of their application under
Section 437.

23. However, when the Magistrate
found that the applicants were not present
before him and their application could not
be
considered
for
this
reason,
the
Magistrate ought not have discussed the
merits of the applications and he ought to
have rejected the application in limine on
this ground alone. While recording the
reasons for rejection of the application, the
Magistrate has stated that the application
was being rejected for the reason that the
applicants did not fulfill the conditions laid
down by the Hon'ble Supreme Court in
Satender Kumar Antil, the offences are
cognizable,
non-bailable,
noncompoundable and triable by a Session
Judge and the applicants were not present
at the time of submission of the application.
Therefore, the Magistrate has considered
the merits of the bail application also and
the application has not been rejected for the
sole reason of non-appearance of the
applicants. It was not proper for the
Magistrate to have discussed the merits of
the application after he found that the
application could not be entertained due to
non-appearance of the accused persons.

24. The offence being non-bailable, is
no ground to reject an application for grant
of bail, as Section 437 has been enacted for
the purpose of granting bail in non-bailable
offences only. The offence is triable by a
Session Court is also not a valid ground to
reject an application under Section 437
Cr.P.C., which provides that: -

"437.When bail may be taken in
case of non-bailable offence.-(1) When
any person accused of, or suspected of, the
commission of any non-bailable offence is
arrested or detained without warrant by an
officer in charge of a police station or
appears or is brought before a Court other
than the High Court or Court of Session, he
may be released on bail, but-

(i) such person shall not be so
released if
there appear reasonable
grounds for believing that he has been
guilty of an offence punishable with death
or imprisonment for life;

(ii) such person shall not be so
released if such offence is a cognizable
offence and he had been previously convicted
of an offence punishable with death,
imprisonment for life or imprisonment for
seven years or more, or he had been
previously convicted on two or more
occasions of a cognizable offence punishable
with imprisonment for three years or more
but not less than seven years:
694 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that the Court may
direct that a person referred to in clause (i)
or clause (ii) be released on bail if such
person is under the age of sixteen years or
is a woman or is sick or infirm:

Provided further that the Court
may also direct that a person referred to in
clause (ii) be released on bail if it is
satisfied that it is just and proper so to do
for any other special reason:

Provided also that the mere fact
that an accused person may be required for
being
identified
by
witnesses
during
investigation shall not be sufficient ground
for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an
undertaking that he shall comply with such
directions as may be given by the Court:

Provided also that no person
shall, if the offence alleged to have been
committed by him is punishable with
death,
imprisonment
for
life,
or
imprisonment for seven years or more, be
released on bail by the Court under this
sub-Section without giving an opportunity
of hearing to the Public Prosecutor.

(2) If it appears to such officer or
Court at any stage of the investigation,
inquiry or trial, as the case may be, that
there are not reasonable grounds for
believing that the accused has committed a
non-bailable offence, but that there are
sufficient grounds for further inquiry into
his guilt, the accused shall, subject to the
provisions of Section 446-A and pending
such inquiry, be released on bail, or, at the
discretion of such officer or Court, on the
execution by him of a bond without sureties
for his appearance as hereinafter provided.

(3) When a person accused or
suspected of the commission of an offence
punishable with imprisonment which may
extend to seven years or more or of an
offence under Chapter VI, Chapter XVI or
Chapter XVII of the Penal Code, 1860 or
abetment of, or conspiracy or attempt to
commit, any such offence, is released on
bail under sub-Section (1), the Court shall
impose the conditions-

(a) that such person shall attend
in accordance with the conditions of the
bond executed under this Chapter,

(b) that such person shall not
commit an offence similar to the offence of
which he is accused, or suspected, of the
commission of which he is suspected, and

(c) that such person shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence,

b. and may also impose, in the
interests of justice, such other conditions as
it considers necessary.

(4) An officer or a Court
releasing any person on bail under subSection (1) or sub-Section (2), shall record
in writing his or its reasons or special
reasons for so doing.

(5) Any Court which has released
a person on bail under sub-Section (1) or
sub-Section (2), may, if it considers it
necessary so to do, direct that such person
be arrested and commit him to custody.

(6) If, in any case triable by a
Magistrate, the trial of a person accused of
any non-bailable offence is not concluded
within a period of sixty days from the first
date fixed for taking evidence in the case,
such person shall, if he is in custody during
the whole of the said period, be released on
7 All. Ram Prem & Ors. Vs. State of U.P.
695
bail to the satisfaction of the Magistrate,
unless for reasons to be recorded in
writing, the Magistrate otherwise directs.

(7) If, at any time after the
conclusion of the trial of a person accused
of a non-bailable offence and before
judgment is delivered, the Court is of
opinion that there are reasonable grounds
for believing that the accused is not guilty
of any such offence, it shall release the
accused, if he is in custody, on the
execution by him of a bond without sureties
for his appearance to hear judgment
delivered."

25. The Magistrate cannot grant bail
under Section 437 of the Cr.P.C. only if
there are reasonable grounds for believing
that the applicant has been guilty of an
offence
punishable
with
death
or
imprisonment for life. In the present case
there is not even an allegation that the
applicants
have
committed
offences
punishable with death or imprisonment for
life, and there is no occasion for a
reasonable ground for believing that the
applicants have committed such an offence.
The Section does not provide that a
Magistrate cannot grant bail in case of an
offence triable by a Session Court. Thus a
Magistrate has the jurisdiction to decide
applications for grant of bail in cases
involving allegation of commission of
offences which are triable by Session
Court.

26. Now I proceed to consider the
objection that the application Section 439
of the Cr.P.C. is liable to be rejected as the
applicants are not in custody. Section 439
(1) (a) Cr.P.C. provides as follows: -

"439. Special powers of High
Court or Court of Session regarding
bail.-(1) A High Court or Court of
Session may direct-

(a) that any person accused of
an offence and in custody be released on
bail, and if the offence is of the nature
specified in sub-Section (3) of Section 437,
may impose any condition which it
considers necessary for the purposes
mentioned in that sub-Section;"

27. The term 'custody' has been
explained by the Hon'ble Supreme Court in
Niranjan Singh v. Prabhakar Rajaram
Kharote, (1980) 2 SCC 559, the Hon'ble
Supreme Court explained the phrase "in
custody" in the following words:-

"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 not
fulfilled. This submission has been rightly
rejected by the Courts below. We agree
that, in one 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 Section
439 Cr.P.C. unless he is in custody.

7. When is a person in custody,
within the meaning of Section 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
696 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
Section 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."
(Emphasis supplied)

28. In Sundeep Kumar Bafna v.
State of Maharashtra, (2014) 16 SCC
623, the applicant, who was not in custody,
had moved an application under Section
439 Cr.P.C. in the High Court for grant of
bail and it was requested that the applicant
be allowed to surrender before the High
Court itself. The High Court rejected the
application on the preliminary objection
that the accused has to surrender before the
Magistrate. Reversing the order of the High
Court in Appeal, the Hon'ble Supreme
Court held that: -

"3.
While
accepting
the
preliminary
objection,
the
dialectic
articulated in the impugned order [Sundeep
Kumar Bafna v. State of Maharashtra,
Criminal Bail Application No. 206 of 2014,
order dated 6-2-2014 (Bom)] is that the
law postulates that a person seeking
regular bail must perforce languish in the
custody of the Magistrate concerned under
Section 167 Cr.P.C.. The petitioner had not
responded to the notices/summons issued
by the Magistrate concerned leading to the
issuance of non-bailable warrants against
him, and when even these steps proved
ineffectual in bringing him before the
Court, measures were set in motion for
declaring him as a proclaimed offender
under Section 82 Cr.P.C.. Since this was not
the position obtaining in the case i.e. it was
assumed by the High Court that the
petitioner
was
not
in
custody,
the
application for bail under Section 439
Cr.P.C. was held to be not maintainable.
This conclusion was reached even though
the petitioner was present in the Court and
had pleaded in writing that he be permitted
to surrender to the jurisdiction of the High
Court.
* * *

8. Some poignant particulars of
Section 437 Cr.P.C. 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 v. State
(Delhi Admn.) [Gurcharan Singh v. State
7 All. Ram Prem & Ors. Vs. State of U.P.
697
(Delhi Admn.), (1978) 1 SCC 118 : 1978
SCC (Cri) 41] , there is no provision in the
Cr.P.C. 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
legislature
could
have
easily
enunciated, by use of exclusionary or
exclusive terminology, that the superior
Court of Session and High Court are bereft
of this jurisdiction or if they were so
empowered under the old Code now stood
denuded thereof. Our understanding is in
conformity
with
Gurcharan
Singh
[Gurcharan Singh v. State (Delhi Admn.),
(1978) 1 SCC 118 : 1978 SCC (Cri) 41] ,
as perforce it must. The scheme of the
Cr.P.C. plainly provides that bail will not
be extended to a person accused of the
commission of a non-bailable offence
punishable with death or imprisonment for
life, unless it is apparent to such a Court
that it is incredible or beyond the realm of
reasonable doubt that the accused is guilty.
The enquiry of the Magistrate placed in this
position would be akin to what is envisaged
in State of Haryana v. Bhajan Lal [State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] , that is, the
alleged complicity of the accused should,
on the factual matrix then presented or
prevailing, lead to the overwhelming,
incontrovertible and clear conclusion of his
innocence. Cr.P.C. severely curtails the
powers of the Magistrate while leaving that
of the Court of Session and the High Court
untouched and unfettered. It appears to us
that this is the only logical conclusion that
can
be
arrived
at
on
a
conjoint
consideration of Sections 437 and 439
Cr.P.C.. Obviously, in order to complete
the picture so far as concerns the powers
and limitations thereto of the Court of
Session and the High Court, Section 439
would have to be carefully considered.
And when this is done, it will at once be
evident that Cr.P.C. has placed an
embargo against granting relief to an
accused, (couched by us in the negative),
if he is not in custody. It seems to us that
any persisting ambivalence or doubt
stands dispelled by the proviso to this
section, which mandates only that the
Public Prosecutor should be put on notice.
We have not found any provision in
Cr.P.C. or elsewhere, nor have any been
brought to our ken, curtailing the power
of either of the superior Courts to
entertain and decide pleas for bail.
Furthermore, it is incongruent that in the
face of the Magistrate being virtually
disempowered to grant bail in the event of
detention or arrest without warrant of any
person accused of or suspected of the
commission of any non-bailable offence
punishable by death or imprisonment for
life, no Court is enabled to extend him
succour. Like the science of physics, law
also abhors the existence of a vacuum, as
is adequately adumbrated by the common
law maxim viz. "where there is a right
there is a remedy". The universal right of
personal liberty emblazoned by Article 21
of our Constitution, being fundamental to
the very existence of not only to a citizen
of India but to every person, cannot be
trifled with merely on a presumptive
plane. We should also keep in perspective
the fact that Parliament has carried out
amendments to this pandect comprising
Sections 437 to 439, and, therefore,
predicates
on
the
well-established
principles of interpretation of statutes that
what is not plainly evident from their
reading, was never intended to be
incorporated into law. Some salient
features of these provisions are that whilst
Section 437 contemplates that a person
698 INDIAN LAW REPORTS ALLAHABAD SERIES
has to be accused or suspect of a nonbailable offence and consequently arrested
or detained without warrant, Section 439
empowers the Sessions Court or High
Court to grant bail if such a person is in
custody. 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 Cr.P.C.
* * *

24. In this analysis, the opinion in
the impugned judgment [Sundeep Kumar
Bafna v. State of Maharashtra, Criminal
Bail Application No. 206 of 2014, order
dated
6-2-2014
(Bom)]
incorrectly
concludes that the High Court is bereft or
devoid of power to jurisdiction upon a
petition which firstly pleads surrender and,
thereafter, prays for bail. The High Court
could
have
perfunctorily
taken
the
appellant into its custody and then
proceeded with the perusal of the prayer
for bail; in the event of its coming to the
conclusion that sufficient grounds had not
been disclosed for enlargement on bail,
necessary orders for judicial or police
custody could have been ordained. A
Judge is expected to perform his onerous
calling impervious of any public pressure
that may be brought to bear on him.
(Emphasis supplied)

29. Therefore, the application under
Section 439 Cr.P.C. cannot be entertained
for the reason that the applicants are not in
custody.

30. The application under Section 439
of Cr.P.C. could have been entertained in
case the applicants had surrendered before
this Court, but it has not been done by
them. Therefore, the applicants may appear
before the Magistrate concerned and file a
fresh bail application.

31. However, the Court cannot lose
sight of the facts that while deciding the
earlier bail application under Section 437
Cr.P.C., although the Magistrate has taken
into consideration the merits of the
application, he has not adverted to certain
material facts and circumstances of the
case. The F.I.R. of the incident that took
place at 07:00 a.m. on 05.05.2021 was
lodged by one of the victims himself, after
7 hours since the incident, categorically
stating that 4 persons named in the F.I.R.,
viz. (1) Ram Pal, (2) Sandeep, (3) Shyamlal
and (4) Shyamdeo, had caused the incident.
In their statements recorded under Section
161 Cr.P.C., all the 8 injured persons,
including the informant himself, have
reiterated the F.I.R. version stating that the
aforesaid 4 named persons had beaten
them. The F.I.R. or the statements of any of
the injured persons recorded under Section
161 Cr.P.C. do not mention the presence of
any eye-witness at the time of the incident.
All the 4 named persons were arrested on
7 All. Ram Prem & Ors. Vs. State of U.P.
699
06.05.2021 and the arrest memo mentions
that upon seeing the police team, they tried
to escape. Upon being asked about the
reason for making the attempt to escape,
they told that they had entered into a
quarrel with the family members of the
informant Raja Ram. The Investigating
Officer has recorded that on 10.05.2021,
two persons, namely, Parashuram son of
Bhogai and Smt. Ponam wife of Umesh
told that they had witnessed the incident
and besides the 4 persons named in the
F.I.R., (1) Ram Prem son of Ramaasrey, (2)
Shatrohan son of Gurudeen, (3) Ram
Kumar son of Gurudeen, (4) Ajay Kumar
son of Nanhey Ram, (5) Ayodhya Prasad
son of Sripal and (6) Sant Ram son of
Bhogai (the applicants) and one Satguru
son of Ram Shankar, were also involved in
committing the offence. Thereafter the
Investigating
Officer
recorded
the
additional statement of the informant, in
which he added the names of 6 persons, but
even in his additional statement, the
informant did not mention the name of Sant
Ram son of Bhogai (the applicant no. 6).

32. In Satender Kumar Antil v. CBI,
(2021) 10 SCC 773, the Hon'ble Supreme
Court laid down the following guidelines
for grant of bail to persons accused of
various category of cases, and the present
case falls within Category A, regarding
which the following guidelines have been
made: -

"Categories/Types of Offences

(A) Offences punishable with
imprisonment of 7 years or less not falling
in Categories B & D.

(B) Offences punishable with
death,
imprisonment
for
life,
or
imprisonment for more than 7 years.

(C) Offences punishable under
Special
Acts
containing
stringent
provisions for bail like NDPS (Section 37),
PMLA (Section 45), UAPA [Section 43D(5)], Companies Act, [Section 212(6)],
etc.

(D)
Economic
offences
not
covered by Special Acts.

REQUISITE
CONDITIONS

(1)
Not
arrested
during
investigation.

(2) Cooperated throughout in the
investigation including appearing before
investigating officer whenever called.

(No need to forward such an
accused along with the charge-sheet
(Siddharth v. State of U.P. [Siddharth v.
State of U.P., (2022) 1 SCC 676 : (2022) 1
SCC (Cri) 423] )

CATEGORY A

After
filing
of
chargesheet/complaint taking of cognizance

(a) Ordinary summons at the 1st
instance/including permitting appearance
through lawyer.

(b) If such an accused does not
appear despite service of summons, then
bailable warrant for physical appearance
may be issued.

(c) NBW on failure to appear
despite issuance of bailable warrant.

(d) NBW may be cancelled or
converted into a bailable warrant/summons
without insisting physical appearance of
the accused, if such an application is
moved on behalf of the accused before
execution of the NBW on an undertaking of
700 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused to appear physically on the
next date/s of hearing.

(e) Bail applications of such
accused on appearance may be decided
without the accused being taken in physical
custody or by granting interim bail till the
bail application is decided."

33. Thus the Hon'ble Supreme Court
has merely reiterated the law which was
already settled, that the bail application
may be decided without the accused being
taken in physical custody.

34. However, it came to light that
several of the Courts, including to a large
extent the Courts in Uttar Pradesh, are not
following the law laid down in Satender
Kumar Antil
(Supra). Therefore,
the
Hon'ble Supreme Court issued the some
further directions in Satender Kumar
Antil
Versus
Central
Bureau
of
Investigation and Another, 2023 SCC
OnLine SC 452, which are as follows: -

"4. Counsels have produced
before us a bunch of orders passed in
breach of the judgment in the case of
Satender Kumar Antil v. CBI only as
samples to show how at the ground level
despite almost 10 months passing, there
are a number of aberrations. It is not as if
these judgments have not been brought to
the notice of the trial Courts and in fact
have even been noted, yet orders are being
passed which have a dual ramification i.e.,
sending people to custody where they are
not required to be so sent and creating
further
litigation
by
requiring
the
aggrieved parties to move further. This is
something which cannot be countenanced
and in our view, it is the duty of the High
Courts to ensure that the subordinate
judiciary under their supervision follows
the law of the land. If such orders are
being passed by some Magistrates, it may
even
require
judicial
work
to
be
withdrawn and those Magistrates to be
sent
to
the
judicial
academies
for
upgradation of their skills for some time.

5.
Amongst
the
illustrative
orders, very large number of them
happens to be from Uttar Pradesh and we
are informed that orders passed specially
in Hathras, Ghaziabad and Lucknow
Courts seem to be in ignorance of this law.
We call upon the counsel for the High
Court of Allahabad to bring this to the
notice of the Hon'ble the Acting Chief
Justice so that necessary directions are
issued to ensure that such episodes don't
occur, including some of the suggestions
made by us above."

35. Yet again, in Satender Kumar
Antil
Versus
Central
Bureau
of
Investigation and Another, 2023 SCC
OnLine SC 758, the Hon'ble Supreme
Court had to reiterate that: -

"5. The judgment of this Court
including the one in Satender Kumar
Antil's case (supra) is the law of the land.
There is no question of anyone violating
the principles laid down. Suffice for us to
say that wherever this judgment is
applicable,
it's
principles
must
be
followed.

6.