Full Judgment
A.K. Saxena, J.
1. This order shall dispose of M.Cr.C. Nos. 3184/05 and 3584/05, as common legal point is involved in both the cases.
2. The short facts of both the cases are that the accused/applicants Sunil Gupta and Takeshwar Sahu had filed the applications under Section 438 of the Code of Criminal Procedure, 1973 (for short 'Cr.PC'), before this Court, as they apprehended their arrest in connection with Crime No. 31/2005 registered at Police Station, Bahoriband, Distt. Katni for the offences punishable under Sections 294, 341 and 327 of the Indian Penal Code, and in Crime No. 359/2004 registered at Police Station, Dindori, Distt. Dindori, for the offences punishable under Sections 420, 409 read with Section 34 of the Indian Penal Code, respectively.
3. The applications for anticipatory bail of applicants Takeshwar Sahu and Sunil Gupta, were allowed on 29-3-2005 and 30-3-2005 respectively, with these directions that the order shall remain in force for a period of 45 days and during this period, they may surrender and apply for regular bail before the Competent Court.
4. The application filed by Sunil Gupta under Section 439 of the Cr.PC, was considered and dismissed by Additional Sessions Judge, Katni on 19-4-2005 whereas, the application for bail of applicant Takeshwar Sahu was firstly rejected by Chief Judicial Magistrate, Dindori, vide order dated 26-4-2005 and the other application under Section 439 of the Cr.PC was rejected on 30-4-2005 by Additional Sessions Judge, Dindori.
5. The applicants have filed these applications before this Court under Section 439 of the Cr.PC after rejection of their applications under Section 439 of the Cr.PC by the respective Additional Sessions Judge.
6. The only point for consideration in these cases is whether an application under Section 439 of the Cr.PC is maintainable in this Court before the expiration of the period granted under anticipatory bail order, where the applicants were not present in the Subordinate Court or moved out of the custody of the Court after rejection of their respective bail applications.
7. It is submitted by the learned Counsels for the applicants that a conditional order was passed in favour of these applicants while considering their bail applications under Section 348, Cr.PC, wherein a period of 45 days was given to them to file their regular bail applications before the concerning Courts. The applications so moved by them, were rejected and before expiration of this period, the applicants have applied in this Court for regular bail under the provisions of Section 439, Cr.PC.
8. It is argued on behalf of the applicants that before the expiration of period of anticipatory bail, the applicants have filed their bail applications under Section 439 of the Cr.PC and the applicants were in custody when their applications were rejected by the Additional Sessions Judge, therefore, they should be treated in custody at present also and therefore, these applications filed under Section 439 of the Cr.PC are maintainable in this Court.
9. It is apparent from perusal of the orders of the Additional Sessions Judges dated 19-4-2005 and 30-4-2005 that when the applications under Section 439, Cr.PC were dismissed, the applicants were not physically present before the concerning Courts. It is submitted by the learned Counsel for the applicant that Takeshwar Sahu was present in the Court of Chief Judicial Magistrate when his application was rejected, therefore, he should be treated to be in custody at present also. The learned Counsel appearing on behalf of accused/applicant Sunil Gupta has submitted that the presence of Sunil Gupta was not marked in the order passed by the Additional Sessions Judge, Katni, but he was present in his Court on that date, therefore, he may also be treated to be in custody at present.
10. The applicants were released on anticipatory bail by this Court and it was directed that the order shall remain in force for a period of 45 days and during this period, the applicants may surrender and apply for regular bail. But, it does not mean that where before expiration of period of anticipatory bail, application for regular bail is filed before the Competent Court and the same is rejected by that Court, even thereafter, the order of anticipatory bail shall remain in force. Two bail orders can not remain in force simultaneously. Where an application under Section 439, Cr.PC is presented before the Court, and the same is allowed by that Court, it means the operation of order of anticipatory bail comes to an end because a person can no remain on bail under Sections 438 and 439, Cr.PC, simultaneously. The moment an application filed under Section 439, Cr.PC is allowed or dismissed, the order passed under Section 438, Cr.PC will become inoperative and the applicant would not be able to get the benefit of the umbrella which was provided by the order passed under Section 438, Cr.PC.
11. The learned Counsels for the applicants have placed their reliance on Vinod Kumar v. State of M.P., 1998 (2) MPLJ 689, in which it has been held as follows :-
'The aforesaid observation was clarified in the case of K.L. Verma (supra) wherein the Apex Court registered the view as under :-
'To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory bail ends even if the Court is yet to decide the question of bail on merits. The decision in Salauddin's case, has to be so understood.'
12. It has been held in Kalachand Patel v. State of M.P., reported in 1998 (II) MPWN Note 120, that-
'If the Court is satisfied that the case is fit for granting regular bail to such applicant/accused, then it would so direct and on submission of personal and bail bond the accused would be let off, but in case where the Court does not consider it to be a fit case for grant of an order under Section 439, Cr.PC then while rejecting the application, it can not take the accused in actual physical custody if the protective order remains in force on that date. To clarify it further, though the Court has taken the accused in custody for the purpose of Section 439, Cr.PC but while rejecting his application for grant of regular bail, he can not be taken in actual physical custody because the order passed under Section 438, Cr.PC protects him and directs the police and the said Court that he should not be taken in custody or if taken in custody such man would immediately be released.'
13. The cases of Nirmal Jeet Kaur v. State of M.P. and Anr., reported in 2004 Supreme Court Cases (Cri.) 1989, and Sunita Devi v. State of Bihar and Anr., : AIR 2005 SC498 , lay down the law in this regard. It has been held in these cases that the judgment of K.L. Verma v. State, : (1998)9SCC348 , is per incuriam as there was no indication in the case of Salauddin Abdulsamad Shaikh v. State of M.P., : 1996 CriLJ1368 , 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 case of Vinod Kumar (supra) is based on the principles laid down in K.L. Verma's case (supra) and therefore considering the latest pronouncements of the Apex Court, the principle laid down in this case does not apply to present case and so is the position with the Kalachand Patel's case (supra).
14. It has been submitted by the learned Counsels of the applicants that it is not necessary for the accused to remain present physically before that Court who deals with the application under Section 439, Cr.PC and therefore, if the applicants were not present or any of the applicant was present before the Court of CJM, they should be treated under custody and therefore, these applications filed under Section 439 of the Cr.PC are maintainable.
15. When is a person in custody This point was dealt with in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors., : 1980 CriLJ426 , as follows :-
'When is a person in custody, within the meaning of Section 439, Cr.PC 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 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.'
16. The same view is also expressed in the cases of Nirmal Jeet Kaur and Smt. Sunita Devi (supra) in respect of the word custody. Therefore, it is a condition precedent for consideration of an application under Section 439, Cr.PC that the accused of an offence must be in custody. It is further held in these cases that-
'For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin case the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant.'
In the present cases, it is an interesting position that when the applications under Section 439 of the Cr.PC of the applicants were rejected by the respective Additional Sessions Judge, the applicants were not present physically in the Court, though the applicant Takeshwar Sahu, was physically present in the Court of CJM. But whether a person, who filed an application under Section 437 or 439 of the Cr.PC, is present physically before the Court, can he move out of the custody of that Court after the rejection of the application In the opinion of this Court, once a person is physically present and he is in custody of that Court, he can not move out of the custody of that Court, if the application of regular bail is rejected. No doubt, that when a person surrenders before the Competent Court for consideration of his bail application moved under Section 439, Cr.PC, he remains in custody at that time but after rejection of his application, if he is allowed to go out of custody, how can a person be said to be in custody who is totally free The said person can not be said to be in custody and therefore his application for regular bail under Section 439, Cr.PC shall not be maintainable in this Court.
17. It is submitted by the learned Counsels for the applicants that considering the principles laid down in Gurbaksh Singh Sibbia v. The State of Punjab, : 1980 CriLJ1125 , pronounced by five Judges Bench, the judgment pronounced in Nirmal Jeet Kaur (supra), becomes per incuriam. This Court is unable to agree with the above arguments advanced by the learned Counsels. It has been held in the case of Nirmal Jeet Kaur (supra) thus :-
'20. In Salauddin case also this Court observed that the regular Court has to be moved for bail. Obviously, an application under Section 439 of the Code must be in manner in accordance with law and the accused seeking remedy under Section 439 must ensure it would be lawful for the Court to deal with the application. Unless the applicant is in custody his making application only under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made. The view regarding extension of time to 'move' the higher Court as culled out from the decision in K.L. Verma case shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in Section 439 requiring the accused to be in custody. In State v. Ratan Lal Arora, it was held that where in a case the decision has been rendered without reference to statutory bars, the same can not have any precedential value and shall have to be treated as having been rendered per incuriam. The present case stands at par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of.'
21. 'Incuria ' literally means 'carelessness'. In practice per incuriam is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law', as held in Young v. Bristol Aeroplane Co. Ltd., is avoided and ignored if it is rendered 'in ignoratium of a statute or other binding authority'. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India (in short 'the Constitution') which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. v. Synthetics and Chemicals Ltd. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.'
18. The ideal test to ascertain whether a particular judgment is per incuriam is that the latter case was decided without referring to earlier case and the point in issue must be the same in both the cases which was discussed and decided in both the cases. Here what the legal points were involved in the case of Gurbaksh Singh Sibbia (supra), were not ignored in the case of Nirmal Jeet Kaur (supra). These are not contradictory judgments on any common issue, therefore, the judgment pronounced in Nirmal Jeet Kaur's case is not per incuriam.
19. Since the applicants Sunil Gupta and Takeshwar Sahu were not in custody when their applications under Section 439, Cr.PC were decided by the respective Additional Sessions Judges or they did not remain in continuous custody at the time when they filed their applications before this Court, therefore, the present applications are not maintainable under Section 439 of the Code of Criminal Procedure, 1973.
20. In view of the aforesaid discussion, the present applications filed under Section 439 of the Code of Criminal Procedure, 1973, are not maintainable. Hence they are rejected.