Holding

Custody under Section 439 Cr.P.C. includes physical presence before the court and submission to its jurisdiction, so bail was lawfully granted as the accused had surrendered before the Sessions Court.

Summary

The petitioner, a complainant, alleged that police officers abducted and murdered his brother. A private complaint led to an inquiry under Section 202 Cr.P.C., after which non‑bailable warrants were issued. The accused police applied for bail; the Sessions Court granted bail with conditions, and the High Court added further conditions but did not set aside the bail. The petitioner challenged the bail, arguing that the accused were not in custody as required by Section 439 Cr.P.C. and that police officers facing serious charges should be suspended. The Supreme Court held that "custody" under Section 439 includes physical presence before the court and submission to its jurisdiction, which the accused had done by surrendering before the Sessions Judge, making the bail order valid. The Court also cautioned against detailed evidentiary examination in bail orders and urged the government to suspend police officers accused of grave offences, but it declined to overturn the lower courts' discretion.

Issues considered

Whether bail can be granted under Section 439 Cr.P.C. when the accused are not in physical custody.
What is the meaning of "custody" for the purpose of Section 439 Cr.P.C.
Whether detailed examination of the evidence is required in a bail order.
Whether police officers accused of serious offences should be placed under suspension pending trial.
Whether the High Court could impose additional conditions on bail without setting aside the bail order.

Legislation cited

Code of Criminal Procedure, 1973s. 202, s. 437, s. 438, s. 439(1)(a)
Indian Penal Code, 1860s. 120B, s. 302, s. 34, s. 341, s. 395, s. 404

Subjects

bailcustodySection 439police officerssuspensionintimidationCriminal Procedure CodeIndian Penal Codemurderhuman rights

Judgment

15

NIRANJAN SINGH & ANR.
v.
PRABHAKAR RAJARAM KHAROTE.& ORS.
Mqrch 10, 1980
(V. R. KRISHNA IYER AND A.P. SEN, JJ.] B

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, elabo-
rate documentation to be avoided. C
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 D
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.
E
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 G
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 sub-
mission to the jurisdiction and orders of the court. He can be in cust<X1y not
merely when the police arrests him., produces hin1 before a Magistrate and
gets a remand to judicial or other custody. He can be stated to be in juidic;ial H
cns.tody when he surrenders before the court and submits to its directions.
HY F-GJ
16 SUPREME COURT REP_ORTS [1980) 3 S.C.R.

A 2. A responsible Government, responsive to appearances of justice, would
have placed police officers against whom serious charges had betn framed by a
criminal c0urt, under suspension unless exceptional circumstances suggesting a
conaary course exist A gesIDre of justice to courts of jU.sticc is the least that
a government owes to the governed. [20 H-21 A]

3. Detailed examination of the evidence and elaborate documentation of the
B merits should be avoided while passing orders on bail applications. No party
should have the impression that his case has been prejudiced. To be satisfied
about a prin1a facie case is needed but it is not the same as an exhaustive
exploration of the merits in the order itself. [18 CJ

4. Grant of bail is within the jurisdiction of the Sessions Judge but the
court must not, in grave cases, gullibly dismiss the possibility of police-accused
.t C intimidating the witnesses with cavalier ease. Intimidation by polictmen,
when they are themselves accused of offences, is not an unknown phenomenon.
[18 D-El

CRIMINAL APPELLATE JURISDICTION Special Leave Petition
(Criminal) No. 393 of 1980.
From the Judgment and Order dated 25-9-1979 of the Bombay
High Court in Cr!. Appln. No. 607 of 1979.
Petitioner No. 1 in person.
P. R. Mridul, S. V. Deshpande and N. M. Ghatate for Respondents
l to 11.
E
0. P. Rana and M. N. Shroff for Respondent No. 13.
The Order of the Court was delivered by
KRISHNA IYER, J. ''No one shall be subjected to torture or to '
cruel, inhuman or degrading treatment or punishment" is a part of the
F Universal Declaration of Human Rights. The content of Art. 21
of our Constitution, read in the light of Art. 19, is similarly elevating.
But romance about human rights and rhetoric about constitutional
mandates lose credibility if, in practice, the protectors of law and
minions of the State become engines of terror and panic people into
fear. We are constrained to make these observations as our conscience
'G is in consternation when we read the facts of the case which have given
I
rise to the order challenged before us in this petition for special leave.
The petitioner, who has appeared in person is the complainant-in a
criminal case where the accused are 2 Sub-Inspectors and 8 Constables •
attached to the City Police Station, Ahmeanagar. The charges against
H them, as di,dosed in the private complaint, are of murder and allied
offences under ss. 302, 341, 395, 404 read with ss. 34 and !20B of the
Penal Code. The blood-curdling plot disclosed in the complaint is
NIRAN.JAN SINGH v. P. R. KHAROTE (Krishr;a Iyer, J.) 17

that ·pursuant to a conspiracy the brother of the complainant was way- A
' laid· by the police party on August 27, 1978 as he was proceeding to
Shirdi. He had with him some gold ornaments and cash. He was
· ca'ught and removed from the truck in which he was travelling, tied
·with a rope to a neem tree nearby, thus rendering him a motionless
·target to a macabre shooting. One of the Sub-lnspectors fired two
B
shots from bis revolver on the chest of the deceased at close range and
killed him instantaneously. The policemen, having perpetrated this
villainy, vanished from the scene. No action was taken by the State
against the criminals. How could they, when the preservers of the
peace and investigators of crime themselves become planned'executors
·Of murders? The victim's brother was an advocate and he filed a pri-
vate complaint. The learned m,;gistrate ordered an inquiry under s.
c
202 Cr. P.C., took oral evidence of witnesses "t scme length and held:
"Thus taking au overall survey of evidence produced before me, I am
.of the opinion that there are sufficient grounds to proceed against all
the accused for the offences undet es. 302, 323, 342;read with s. 34
I.P.C." Non-bailable warrants were issued for production of the D
accused and the magistrate who refused bail, stayed the issuance of the
warrants although we are unable to find any provision to enable him
to do so. The police-accused moved the sessions (conrt for bail and,
in an elaborate order the sessions court granted bail subject to certain
directions and conditions. The High Court, which was moved by
the complainant for reversal of the~order enlarging,the accused on bail, E
declined to interfere in revision but added additional conditions to
ensure that the bail was not abused and the course of justice was
not thwarted.

It is fair to state that the case in the complaint, verified under s.
·202 Cr. P.C. to have some veracity, does not make us leap to a conclu-
sion of guilt or refusal of bail. On the contrary, the accused policemen
have a version 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;even as some of the police
party sustained revolver wounds but survived. Maybe, the defence
1

·case, if reasonably true, may absolve them of the crime, although the G
story of encounters during arrest and unwitting injuries resulting in
'casualties, sometimes become a mask to hide easy liquidation of human
life by heartless policemen when[some one allergic to Authority resists

. . .
their vices. The police have the advantage that they prepared the
preliminary record which may 'kill' the case against them. This dis-
·(]meting syndrome of policemen committing crimes of killing and
B
,m 1 king up perfect paperwork cases of innocent discharge of duty
18 SUPREME COURT REPORTS [1980] 3 S.C.R.-

A should not be ruled out when courts examine rival versions. Indeed,
we must emphasise that the trial judge shall not be influenced by what
we have said and shall confine himself to the evidence in the case·
when adjudging the guilt of the accused. We were constrained to make·
the observations above because the Sessions !Judge, quite un·
warrantedly, discussed at prolix length the probabilities of police·
B
party's exculpatory case and held :
"So it is reasonable to hold that there was a scuflle
and resistance offered by the victim AmarjeefSingh before
shots were fired at his person by the accused No. !."

c Detailed examination of the evidence and elaborate documenta- · +
tion of the merits should be avoided while passing orders on bail
applications. No party should have the impression that his case has.
been prejudiced. To be satisfied about a prima facie case is needed
but it is not the same as an exhaustive exploration of the merits in,
the order itself.
D
Grant of bail is within the jurisdiction of the Sessions Judge but
the court must not, in grave cases, gullibly dismiss the possibility of·
police-accused intimidating the witnesses with cavalier ease. In our·
country, intimidation by policemen, when they are themselves accused .
of offences, is not an unknown phenomenon and the judicial process· .,_.
E will carry credibility with the community only if it views impartially
and with commonsense the pros and cons, undeterred by the psychic·
'pressure of police pres~nce as indictees.
Let us now get to grips with the two legal submissions made by
the petitioner. The first jurisdictional hurdle in the grant of bail,.
F argues the petitioner, is that the accused must fulfil the two conditions
specified in s. 439 Cr. P.C. before they can seek bail justice. That:
provision reads : ~
439. (l) A High Court or Court of Session may direct-
(a) that any person accu>ed of an offence, and in custody
G 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
or other police or allied authority or is under the control of the court
c:
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 F
with anticipatory bail under s. 438) is physical control or a1 least physical
presence of the accused in court coupled with submission to the juris-
diction 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 G
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, B
l'nabled the accused persons lo circumvent the principle of s. 439 Cr.P.C.
We might have taken a serious view cf such a course, indifferent to
20 SUPREME COURT REPORTS [J 980] 3 S.C.R.

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 cus-
tody 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
c 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.
·E It must be remembered that the allegations are that the deceased was
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
F make any implications for or against either version. The accused po-
licemen 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
G 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
H 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 of justice, 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 cir-
cumstances 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 coun-
tries 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."

The observations that we have made in the concluding portion
c
of the order are of such moment, not merely to the State of Maha-
rashtra 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 high-
lighted.

N.V.K.

\

1