Full Text
JUDGMENT
VIJAY SINGH ..... Petitioner
Through Mr.Pradeep Kumar and Ms.Kiran, Advs.
Through Mr.Panna Lal Sharma, APP with SI Jaibir, PS Alipur.
AND
VIJAY SINGH ..... Petitioner
Through Mr.Pradeep Kumar and Ms.Kiran, Advs.
Through Mr.M.S. Oberoi, APP with SI Bijender, PS Swaroop Nagar.
1. The present applications under Section 439 read with Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr. P.C.) have been filed by the petitioner for seeking regular bail in a FIR No.14/2016, under Sections 363/365/368/370/ 346/310/120- B/34 IPC, Police Station Alipur (Bail Appln. 28/2016) and in FIR No.50/2016, under Sections 363/367/368/372/373/34 IPC, Police Station Swaroop Nagar (Bail Appln. 26/2017).
2. Perusal of orders passed by the trial court shows that a prayer was made by the accused to grant him interim bail for a period of three months, but the same was not considered rather he was granted interim bail for two months vide order dated 27.08.2016. After considering the request of the accused for the grant of three months’ interim bail and granting him interim bail for two months and then further considering his request for extension of interim bail firstly vide order dated 02.11.2016 and then vide order dated 09.11.2016 tantamounts to review of its own order which is not permissible under the criminal law.
3. The provisions of the grant of bail are contained in Sections 437, 438 and 439 IPC. Section 437 is reproduced as under:
4. Bail under Section 437 Cr.P.C. is to be sought in a case where the accused is arrested or detained in case of non-bailable offence and produced before a Magistrate. As per Section 437 Cr.P.C, in nonbailable cases in which the person is not guilty of an offence punishable with death or imprisonment for life, the court will exercise its discretion in favour of granting bail subject to sub-section (3) of section 437 if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the court which may defeat the proper investigation and fair trial, the court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. The jurisdiction under this Section is discretionary but it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general.
5. Section 438 Cr.P.C. reads as under:
6. Section 438 Cr.P.C. provides for the grant of bail in the matters where an accused is apprehending arrest and he can be granted bail after taking into consideration various factors. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a chargesheet, would not by itself prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail.
7. Section 439 Cr.P.C. is quoted here below:
8. Section 439 Cr.P.C. makes it abundantly clear that an application for the grant of regular bail can be moved by an accused while he is “in custody”. It is only while “in custody” an application under Section 439 Cr.P.C. can be moved for the grant of bail. In the present matter, what appears that the application under Section 439 Cr.P.C. was moved by the accused before the trial court on 16.11.2016 when he was not in custody rather he was outside the jail on that day. It is apparent from the record that the application for the grant of regular bail under Section 439 Cr.P.C. was moved by the accused before the trial court on 16.11.2016. For that reason, the bail application moved by the accused/petitioner before the Court of Session was not maintainable.
9. Hon’ble Apex Court in the case of Sunita Devi v. State of Bihar and Anr. AIR 2005 SC 498 observed as under: “In view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh and Anr. V. Prabhakar Rajaram Kharote and Ors. 1980 CriLJ 426, there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision.”
10. Similarly, in D.K. Ganesh Babu v. P.T. Manokaran and Ors. AIR 2007 SC 1450, it was observed that: “In Nirmal Jeet Kaur v. State of M.P. and Anr. (2004 7 SCC 558 and Sunita Devi v. State of Bihar and Anr. Criminal Appeal arising out of the case of AIR 2005 SC 498 disposed of on 6.12.2004, certain grey areas in the case of K.L. Verma’s case (supra) were noticed. The same related to the observation “or even a few days thereafter to enable the accused persons to move the Higher Court, if they so desire”. It was held that the requirement of Section 439 of the Code is not wiped out by the above observations. Section 439 comes into operation only when a person is “in custody”. In K.L. Verma’s case (supra) reference was made to Salauddin’s case (supra). In the said case there was no such indication as given in K.L. Verma’s case (supra), that a few days can be granted to the accused to move the higher Court if they so desire. The statutory requirement of Section 439 of the Code cannot be said to have been rendered totally inoperative by the said observation.”
11. In view of the above discussion and in view of the law laid down in the case of Sunita Devi (supra) and D.K. Ganesh Babu (supra), this Court is of the considered that the application for the grant of bail under Section 439 Cr.P.C. can be moved by an accused only in the case while he is “in custody” and none else.
12. Now coming to the facts of the instant case. As per the allegations leveled in FIR No.14/2016, Police Station Alipur, it is alleged against the accused that a child aged about 1 or 1½ years was kidnapped from the custody of his father. Accused was arrested in the present case and he was found involved in other cases of human trafficking of children of tender age. During the course of investigation, role of the accused was found in the kidnapping of the child and kidnapped child was recovered. It was also revealed that accused had conversation with his co-accused Rehan about the child kidnapped in the instant case and such recording is available with the police.
13. As per the allegations leveled in FIR No.50/2016, Police Station Swaroop Nagar, it is alleged against the accused that the complainant Md.Shakeel had made a statement to the police that his son Md.Hasim aged 1½ years was playing in front of his house. Two unknown persons came on a motorcycle and kidnapped the son of the complainant. During investigation, accused/petitioner along with coaccused persons was apprehended and kidnapped child was recovered at the instance of co-accused Kundan and others.
14. The allegations leveled against the accused/petitioner is serious in nature to the effect that above mentioned two FIRs have been registered against him for his alleged involvement in the case of kidnapping of children of tender age. It is also alleged against the accused that he is involved in several such cases of human trafficking.
15. The provision of Section 439 of the Cr.P.C. is restricted to be invoked by the person already “in custody”.
16. Keeping in view the seriousness of the allegations and the specific role assigned to the petitioner in the commission of crime alleged against him, this Court is not inclined to grant bail to the accused/petitioner.
17. Both the bail applications are accordingly dismissed.
18. Before parting with the order, this court would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the petitioner. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the Trial Court seized of the trial.
19. Keeping in view the observations made in para 15, a copy of this order be sent to all the District & Sessions Judges of Delhi with a direction to circulate the order amongst all the criminal courts under their respective jurisdiction for information.
JUDGE JANUARY 18, 2017 dd