CRP No.05 (A.P) 2010 - Gauhati High Court, Itanagar Permanent ...

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8question, is holding the post of learned Judicial Magistrate, FirstClass. It is also to be noted that the respondent accused is alsoholding the post of Judicial Magistrate-cum-Circle Officer, atYupia. Moreover, as stated earlier, the respondent accused wasadmitted in Heema Hospital on 13.05.2010 and there is norecord to show that he was released from the said Hospital on13.05.2010 before 1200 hrs.. Under such circumstances, itcannot be accepted that the respondent accused could appear orcould have appeared at 1200 hrs. on 13.05.2010, before thecourt of Judicial Magistrate concerned and hence, there issufficient room for doubt on the veracity of the aforesaid orderdated 13.05.2010(Annexure-I to the counter affidavit filed by therespondent accused) and as such, it is natural to come to aconclusion that the said order was passed subsequently to orderdated 13.05.2010(Annexure-IV to the criminal revision petition)after realization of the mistake committed by the said Magistrateand the consequence of passing an order granting bail to therespondent accused without having the said accused personsurrendered/appeared before his court.9. The decision in Niranjan Singh(supra) as relied uponby the learned counsel for the respondent accused is of noassistance to him rather it goes against the respondent accusedinasmuch as it has been reiterated in the said decision that noperson accused of an offence can move the court for bail underSection 439, unless he is in custody. As held therein, custody, in
9the context of Section 439 Cr.P.C., means physical control or atleast physical presence of the accused in court coupled withsubmission to the jurisdiction and orders of the court. Theaccused person may be in custody not merely when the policearrest him, produces him before a Magistrate and gets a remandto judicial or other custody. He can be stated to be in judicialcustody when he surrenders before the court and submit to itsjurisdiction.10. In the present case, the respondent accused wasnever arrested by the police and he never surrendered to thejurisdiction of the court and as such, he was never in custodywithin the meaning of Section 439 of the Code of CriminalProcedure, 1973. The respondent accused having been enlargedon bail by the court of learned Judicial Magistrate, First Class,Yupia, without having him produced or surrendered before thesaid court, as directed by this court or under the provision ofsection 439 Cr.P.C., such order granting bail to the respondentaccused, cannot be sustained in law. The bail order, in question,as granted by the court of learned Judicial Magistrate, FirstClass, Yupia, is liable to be cancelled and it is accordinglycancelled.11. The police shall take necessary steps to have therespondent accused Sri Chichung Chuku arrested immediately.The respondent accused is also directed to surrender before thecourt of learned Judicial Magistrate, First Class, Yupia, within a
Page 2 and 3: 2BEFORETHE HON’BLE MR. JUSTICE P.
Page 4 and 5: 4not present before the court of le
Page 6 and 7: 6medical report, the petitioner was
Page 10: 10period of 7(seven) days from toda

CRP No.05 (A.P) 2010 - Gauhati High Court, Itanagar Permanent ...

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