NIRANJAN SINGH & ANR. v. PRABHAKAR RAJARAM KHAROTE & ORS

Citation: [1980] 3 S.C.R. 15

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, A.P. SEN

Case summary

I rise to the order challenged before us in this petition for special leave. (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

Judgment text

NIRANJAN SINGH & ANR. v. PRABHAKAR RAJARAM KHAROTE. & ORS. Mqrch 10, 1980 (V. R. KRISHNA IYER AND A. P. SEN, JJ. ] Criminal Procedure Code 1973, Section 439(1) (ai)-Enlargement on bail- PerSOff to be accused of an offence and in custody-Wiren is a person in custndy. Bait. --Orders on bail application-Detailed examination of evidence, elaborate documentation to be avoided. Suspension-Police Officers-Serious charges framed by a criminal court- Placing such officers under suspension-Necessity of. The petitioner was the complainant in a criminal case where the accused were two sub-inspeetorn and eight police constables (respondents l to 10). The case of the complainant was that in pursuance to a conspiracy his brother was way laid by a police party consisting of these respondent•.

It was alleged that he was caught and removed from the truck in which he was travelling, tied with a rope to a tree and one of the sub-inspectors fired two shots from his revolver on the chest of the deceased at close range which killed him instantaneously. Having perpetrated this villainy the policemen vanished from the scene. The respondents' version was that the victim was himself a criminal and was sought to be arrested. An encounter ensued, both sides sustained injuries and the deceased succumbed to a firearm shot. I The State not having taken any action, the petitioner was constrained to file the private complaint.. The Magistrate who ordered an inquiry under section 202 Cr. P. C. took oral evidence of the witnesses and found that there was sufficient ground to proceed against all the respondents under sections 382, 341, 395 and 404 read with section 34 IPC.

Non-bailable warrants were issued for production of the accused and the Magistr:ite who refused the bail I' litayed the issuance of the warrants. The respondents moved the Sessions Court for bail which granted bail subject to certain directions and conditions. Feeling aggrieved, the petitioner moved the High Court but it declined to interfere in revision but imposed additional conditions to ensure that the bail was not abused and the course of justice was not thwarted. In the special leave petition, the petitioner contended that the respondents could not be released on bail asi they were not in custody and being on bail they were abusing their freedom by threatening the· petitioner. lia. D : I. Cutody, in the context of section 439 Cr. P. C. is physical control or at least physical presence of the accnsed in court coupled with submission to the jurisdiction and orders of the court.

He can be in cust ed of an offence, and in custody be released on bail, and if the offence is of the nature , specified in rnb-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section: (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified. R Here the respondents were accused of offences but were not in> custody, argues the petitioner. So no bail, since this basic condition. NIRANJAN SINGH v. P. R. KHAROTE (Krishna Iyer, !. ) 19 of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in our 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 Session~ Judge.

Judicial jurisdiction arises only when persons are already in custody and seek the precess of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under s. 439 Cr. P. C. unless he is in custody. When is a person in custody, within the meaning of s. 439 Cr. P. C. ? When he is in duress either because he is held by the investigating agency c: or other police or allied authority or is under the control of the court having been nmanded by judicial order, or having offered himself to the court's jutisdiction 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 s. 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 foqnal 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. Custody, in the context of s. 439, (we are not, be it noted, dealing with anticipatory bail under s. 438) is physical control or a1 least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. 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 surrrndus before the ccmt and submits to its directions. In, the present case, the police offic¢rs applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, l'nabled the accused persons lo circumvent the principle ofs. 439 Cr. P. C. We might have taken a serious view cf such a course, indifferent to mandatory provisions by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons ,. mentioned by it, exercised its jurisdiction in favour of grant of bail.

The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused bad submitted to the custody of the court. We therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but sitting under Art. 136- do not feel that we should interfere with a discretion exercised by the two courts below. We are apprehensive that the accused being police officers should not abuse their freedom and emphasise that the Inspector General of Police of the State of Maharashtra will take particular care to take two steps.

He should have a close watch on the functioning of the concerned police officers lest the rule of law be brought into discredit by officers of the law being allowed a larger liberty than other people especially because the allegations in the present case are grave and even if a fragment of it be true, does little credit to the police force. It must be remembered that the allegations are that the deceased was ·E dragged out of a truck to a secluded place later tied to a tree and shot and killed by the police officers concerned. We hasten to make it clear that these are one-sided allegations and the accused have a counter-version of their own and we do not wish to make any implications for or against either version. The accused policemen are entitled to an unprejudiced trial without any bias against the 'uniformed' force which has difficult tasks to perform. We conclude this order on a note of anguish. The complainant has been protesting against the State's bias and police threats.

We must remember that a democratic state is the custodian of people's interests and not only police interests. Then how come this that the team of ten policemen against whom a magistrate after due enquiry found a case to be proceeded with and grave charges including for murder were framed continue on duty without so much as being sus- . I pended from service until disposal of the pending sessions trial? On whose side is the State? The rule of law is not a one-way traffic and the authority of the State is not for the police and against the people. A responsible Government responsive to appearances ofjustice, would NIRANJAN SINGH v. P. R. ICHAROTE (Krishna Iyer, J. ) 21 have placed police officers against whom serious charges had been A. framed by a criminal court under suspension unless exceptional circumstances suggesting a contrary course exist. After all- a gesture of justice to courts of justice is the least that a government owes to the governed. We are confident that this.

inadvertance will be made good and the State of Maharashtra will disprove by deed(Henry Clay's famous censure : Bo "The arts of power and its minions are the same in all countries and in all ages. It marks its victim denounces it; and excites the public odium and the public [hatred to conceal its own abuses and encroachments. " c The observations that we have made in the concluding portion of the order are of such moment, not merely to the State of Maharashtra but also to the other States in the country and to the Union of India, that we deem it necessary to direct that a copy of this judgment be sent to the Home Ministry in the Government of India for suitable sensitized measures to pre-empt recurrence of the error we have highlighted. N. V. K. \