2018] Notes and Comments 427

NOTES AND COMMENTS

IN THE CUSTODY OF LAW: WITHERING JURISDICTION OF

A MAGISTRATE
Abstract
This article discusses the scope of the power of a ‘magistrate’ under the Code of
Criminal Procedure. Specifically, the article argues that the widely held belief and
the dicta of the Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra
(2014) 16 SCC 623 that the Magistrate is not empowered to grant bail in cases
involving offences punishable by death or imprisonment for life is not correct. The
author discusses whether the approach of accused to simply ‘appear’ before the
High Court at the time of hearing bail application under Section 439 of the Code
of Criminal Procedure, 1973 can be treated as a legally correct approach. It is
argued that even a Magistrate is empowered to grant bail in ‘serious offences’, and
urges that such power should be highlighted and must be exercised to prevent
avoidable pre-trial detention and docket-explosion at Sessions Court and the High
Court.
I Introduction
THE FULCRUM of error committed by the Supreme Court in Sundeep Kumar Bafna v.
State of Maharashtra1 (“Bafna”) rests on the following quote from the judgment:
“…The regimes regulating the powers of the Magistrate on the one hand and the two
superior Courts are decidedly and intentionally not identical, but vitally and drastically
dissimilar…”2
The error lies in not appreciating the true scope and meaning of the aforestated
sentence, as a consequence of which the Supreme Court has held that it is open for an
accused (or even a fugitive) to simply ‘appear’ before the High Court or the Sessions
Court and seek bail under Section 439 of the Code of Criminal Procedure, 1973 (“the
Code”) which mandatorily requires the applicant to be in ‘custody’.
While there is no dispute regarding the judgment in Bafna being a progressive one,
which endeavours to alleviate the misery of persons accused of heinous offences by
not subjecting them to ‘compulsory’ jail before moving an application for bail; it is,
however, concerning that the judgment attempts to locate ‘inherent powers’ of the
superior courts in the ‘procedure established by law’. 3 It is submitted that the judicial
intent is indeed laudable, but does not seem to be grounded in the statutory provisions.

1 (2014) 16 SCC 623.

2 Id., Para. 8.
3 In Natabar Parida v. State of Orissa, (1975) 2 SCC 220, para. 5, the Supreme Court has held that
“… It may be emphasized here that the Court will have no inherent power of remand of an accused to any
custody unless the power is conferred by law.”
428 Journal of the Indian Law Institute [Vol. 60: 4

In this article, I argue that the judgment rendered by the Supreme Court in Bafna is
erroneous. After setting out the facts in brief, I argue that the Supreme Court has
failed to appreciate the scope of a magistrate’s jurisdiction which is the court of first
instance under the Code and is empowered to regulate custody of an accused. I further
argue that far from supporting the premise that an accused directly appear before the
Sessions Court and seek bail, the judgment in Niranjan Singh & Anr. v. Prabhakar Rajaram
Kharote & Ors.4 (“Niranjan Singh”) reinforces the procedure that an accused person has
to appear and surrender before a Magistrate and seek bail from a Magistrate in the first
instance.
II Brief Facts and Background
The Petitioner, Sundeep Kumar Bafna was accused of manipulating the foundation
of ‘A Wing’ of Aftab Manzil, a building in Mumbai that collapsed resulting in death of
family members of Respondent No.2, the Complainant. Non-bailable warrant issued
against the Petitioner remained non-executed, resulting in issuance of proclamation.5
Petitioner’s application for anticipatory bail was rejected by the High Court as well as
the Supreme Court; however, the Supreme Court was pleased to grant a limited
protection of two weeks to the Petitioner to apply for regular bail. Probably
apprehending expiry of two weeks while pursuing the bail applications, the Petitioner
chose to apply for bail straight to the High Court, without approaching the Sessions
Court or the jurisdictional Magistrate. In fact, the Petitioner did not formally surrender
before the trial court, a procedure ubiquitously known and observed by all before
applying for regular bail. This fact is significant because of the language used in Section
439 of the Code provides that a bail application is maintainable only when accused is
in custody.6 It is also settled law that application under Section 439 of the Code can be
made only and only when the accused is in custody.7

4 (1980) 2 SCC 559.

5 The Code of Criminal Procedure, 1973, Sections 82-83.
6 The Code of Criminal Procedure, 1973, “Section 439. Special powers of High Court or Court
of Session regarding bail.— (1) A High Court or Court of Session may direct—
(a) that any person accused of an offence and in custody be released on bail, and if the offence
is of the nature specified in sub-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:
Provided that the High Court or the Court of Session shall, before granting bail to a person
who is accused of an offence which is triable exclusively by the Court of Session or which,
though not so triable, is punishable with imprisonment for life, give notice of the application
for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion
that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail
under this Chapter be arrested and commit him to custody.”
7 See Adri Dharan Das v. State of W.B., (2005) 4 SCC 303, para. 13. “In view of the clear language of
Section 439 and in view of the decision of this Court in Niranjan Singh v. Prabhakar Rajaram Kharote
2018] Notes and Comments 429

Therefore, the Supreme Court is correct in observing that in Bafna “A neat legal nodus of
ubiquitous manifestation and gravity has arisen before…” 8 it, as the Petitioner had straight
away approached the High Court and by being ‘present’ in the High Court and
consenting to subject himself to the directions of the High Court, he ought to be
deemed in ‘custody’.
Before the High Court, the Petitioner had prayed that “the High Court may permit the
Petitioner to surrender to its jurisdiction” and secondly, to enlarge him on regular bail under
Section 439 of the Code. The High Court had rejected the Petitioner’s application
holding that the Petitioner “is required to be arrested or otherwise he has to surrender before the
Court which can send him to remand either to the police custody or to the Magisterial custody and this
can only be done under Section 167 of Cr. P. C. by the Magistrate and that order cannot be passed
at the High Court level.” 9 Thus, the High Court had dismissed the Petitioner’s bail
application on the jurisdictional issue, i.e. since the Petitioner was not in ‘custody’ and
the High Court could not accept the Petitioner’s custody, the bail application was not
maintainable. In the words of the Supreme Court, the result in law was “that a person
seeking regular bail must perforce languish in the custody of the concerned Magistrate under Section
167 Cr. P. C.”10
It is in this backdrop that question arose before the Supreme Court as whether it is
permissible for a person to personally appear before the High Court seeking to surrender
himself and on the premise that he has subjected himself to the custody of the court,
to apply for bail.
III Meaning of ‘Arrest’ and ‘Custody’
One of the earliest cases, where the meanings of the words ‘arrest’ and ‘custody’ has
been exhaustively considered is the decision of Full Bench of Madras High Court in
Roshan Beevi v. Joint Secretary to Government of Tamil Nadu11. It was, thus summarised by
Justice S. Ratnavel Pandian, speaking for the Court that the terms ‘custody’ and ‘arrest’
are not synonymous even though it is true that in every arrest there is a custody, but
not vice versa.12

(1980) 2 SCC 559 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.” See also, Nirmal Jeet Kaur v. State of M.P. (2004) 7
SCC 558 and Sunita Devi v. State of Bihar, (2005) 1 SCC 608.
8 Supra n.1, para.2.
9 Supra n.1, para. 3.
10 Id., para. 4.
11 1983 SCC OnLine Mad 163: 1984 Cri LJ 134. The case was decided in the context of Sections
107 and 108 of the Customs Act, 1962.
12 Id., para. 37.
430 Journal of the Indian Law Institute [Vol. 60: 4

While Sections 41 to 44 of the Code deal with arrest, the word ‘arrest’ has not been
defined in the Code. The courts have understood the word ‘arrest’ to mean “restraint of
a man’s person, obliging him to be obedient to law.”13 Section 46(1) and (2) of the Code,
however, suggests that in order to make an arrest the police officer or other person
making the same shall actually touch or confine the body of the person to be arrested,
unless there be submission to the custody by word or action.14 Black’s Law Dictionary
defines ‘arrest’ as:
“arrest, n. (14c) 1. A seizure or forcible restraint. 2. The taking or keeping of a
person in custody by legal authority, esp. in response to a criminal charge; specif., the
apprehension of someone for the purpose of securing the administration of the law,
esp. of bringing that person before a court.”15
Therefore, arrest would imply, firstly, the overt act of seeking submission16 and secondly,
the act of submission, either physically or by words or by being overpowered. However,
in the Constitutional direction17 requiring time bound production of a person arrested
before a Magistrate18, implicit is the legal policy that arrest is to be translated into
custody as soon as possible. It is relevant to note that once a person is produced
before a Magistrate, the Magistrate can either decide to admit the person accused to
bail or remand him to custody which could either be custody of the police or judicial
custody.19
The word ‘custody’ has also not been defined under the Code. Black’s Law Dictionary
defines ‘custody’ as “custody, n. (15c) 1. The care and control of a thing or person for inspection,

13 Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305, para. 20.
14 State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222, para. 14.
15 Black’s Law Dictionary, (9th ed. 2009), Arrest.
16 Section 37 of the Code provides that every person is bound to assist a Magistrate or a Police
Officer to arrest. effecting arrest of persons such Magistrate or Police Officer is authorised. In
other words, the power of arrest is vested both in the police and in the Magistrate.
17 The Constitution of India, Article 22(2) and the Code of Criminal Procedure, Section 57. It is
not without significance that Article 22(2) also uses the word ‘magistrate’. Article 22(2) provides:
“(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.”
18 Section 56 of the Code provides that a police officer who arrests without warrant can take the
person either to the officer in charge of a police station or send the person arrested before a
Magistrate having jurisdiction in the case.
19 It is submitted that one of the reasons for why common law courts have come down heavily
upon ‘custodial violence’ is because they view it as violence upon a powerless persons whilst he
is under the care of the court. In fact, courts regard ‘custodial violence’ and ‘torture’ as affecting
their own reputation and lowering their majesty.
2018] Notes and Comments 431

preservation, or security.”20 Thus, custody not only implies control, but also puts the person
in the care of the person/authority. The Supreme Court has rightly explained that:
“Needless to emphasize that the arrest of a person is a condition precedent for taking
him into judicial custody thereof. To put it differently, the taking of the person into
judicial custody is followed after the arrest of the person concerned by the Magistrate
on appearance or surrender…… Though ‘custody’ may amount to an arrest in
certain circumstances but not under all circumstances….”21
It is significant to note that Section 44 of the Code provides that, “….subject to the
provisions herein contained as to bail….. commit the offender to custody…..” Upon interpretation
of Section 167 of the Code, it is apparent that the expression ‘in custody’ therefore, is
either relatable to custody of the police or custody authorised by the Magistrate, and
given that the Magistrate is empowered to put the accused either in the police custody
subject to a maximum period of 15 days, or judicial custody, implies that the law
regards accused to be under care of a Magistrate whilst he is under the protection of
the law for the purposes of investigation or trial. The law further obliges the Magistrate
to record reasons for ordering detention of a person.22
IV Role of Magistrate under The Code
Section 6 of the Code provides for the hierarchy of courts in addition to the High
Court and special courts as under:
(i) Courts of Session;
(ii) Judicial Magistrates of the First Class and, in any Metropolitan area,
Metropolitan Magistrates;
(iii) Judicial Magistrates of the Second Class; and
(iv) Executive Magistrates
Section 15 of the Code provides that every Chief Judicial Magistrate shall be subordinate
to the Sessions Judge and every other Judicial Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. It follows
that the Code vests the Magistrate with ‘Original Jurisdiction’. ‘Complaint’ is defined
as any allegation made orally or in writing to a Magistrate.23 ‘Inquiry’ as every inquiry,
other than a trial, conducted under the Code by a Magistrate or a Court.24 ‘Investigation’

20 Supra n.15, Custody.

21 Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440, para. 48.
22 Supra n.5, Section 167(3).
23 Supra n.5, Section 2(d).
24 Supra n.5, Section 2(g).
432 Journal of the Indian Law Institute [Vol. 60: 4

is defined as all proceedings under the Code for collection of evidence conducted by
a police officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf,25 and unless so authorised a police officer cannot investigate
into non-cognizable offences26. ‘Local jurisdiction’ is defined as as the local area within
which the Court or Magistrate may exercise all or any of its powers under the Code.27
A police report has been defined as a report forwarded by a police officer to a Magistrate
under sub-section (2) of Section 173.28 The scheme of definitions suggests that
investigation into a case is done by the police under the judicial oversight of the local
Magistrate. Police is required to turn up the arrestee or detainee before a magistrate
who can pass necessary orders in respect of his custody29.
Detention after the period of 24 hours is to be authorised by the Magistrate who is
required to be provided with necessary documents.30 Any further custody is regulated
by him for a maximum prescribed period depending upon the nature of the offence.31
Subsequently, the final report is to be submitted to a Magistrate32 and it is a Magistrate
who is expected to take cognizance.33 Thus, it is the Magistrate who sets the criminal
proceedings in motion. In fact, during the period of investigation, it is the Magistrate
alone who is the competent to authorise detention.
From the aforesaid indicators as also from Section 193 of the Code34, it is rather clear
that Magistrate is the court of original jurisdiction in respect of all offences even if
triable by Sessions Court, and the Sessions Court cannot exercise jurisdiction unless
the case is committed to it in terms of Section 209.35 The Supreme Court has held that
“It can be discerned from the hierarchical settings of criminal courts that the Court of
Session is given a superior and special status. Hence we think that the legislature would
have thoughtfully relieved the Court of Session from the work of performing all the
preliminary formalities which Magistrates have to do until the case is committed to the

25 Supra n.5, Section 2(h).

26 Supra n.5, Section 155(2).
27 Supra n.5, Section 2(j).
28 Supra n.5, Section 2(r).
29 Supra n.5, Sections 56 and 57.
30 Supra n.5, Section 167(1)
31 Supra n.5, Section 167(2).
32 Supra n.5, Section 173.
33 Supra n.5, Section 190.
34 Supra n.5, Section 193. “Cognizance of offences by Courts of Session— Except as otherwise
expressly provided by this Code or by any other law for the time being in force, no Court of
Session shall take cognizance of any offence as a Court of original jurisdiction unless the case
has been committed to it by a Magistrate under this Code.”
35 Kishun Singh v. State of Bihar, (1993) 2 SCC 16, paras. 13, 14 and 16.
2018] Notes and Comments 433

Court of Session.”36 It is therefore submitted that the Code does not contemplate any
other court other than a magistrate’s Court to be accepting custody and remanding a
person to custody. The powers exercised by the High Court and Sessions Court, as
superior Courts, is a special power which by relieving them of preliminary formalities
also disables them from exercising power in respect of ‘custody’.
V Power of Magistrate and Existence of a Legal Vacuum
In Bafna, the Supreme Court has held that:
“Furthermore, it is incongruent that in the face of the Magistrate being virtually
disempowered to grant bail in the event of detention or arrest without warrant of any
person accused of or suspected of the commission of any non-bailable offence punishable
by death or imprisonment for life, no Court is enabled to extend him succour. Like
the science of physics, law also abhors the existence of a vacuum, as is adequately
adumbrated by the common law maxim, viz. ‘where there is a right there is a
remedy’….. The difference of language manifests the sublime differentiation in the
two provisions, and, therefore, there is no justification in giving the word ‘custody’ the
same or closely similar meaning and content as arrest or detention”37
It is submitted that the aforestated conclusion reached by the Supreme Court that
there exists a legal vacuum as the Magistrate is virtually disempowered to grant bail to
persons accused of commission of offences punishable by death or imprisonment for
life is not entirely correct for the reasons set out below.
An accused has a legal right to apply for bail under Section 437 of the Code exists
whenever the accused person is brought before the Magistrate. Section 437 of the
Code contemplates two jurisdictional conditionals to be fulfilled:
Firstly,
(a) a person must be accused of the commission of any non-bailable office; OR,
(b) a person must be suspected of the commission of any non-bailable offence;
Secondly,
(a) such a person must be arrested or detained without warrant by a police officer;
OR,
(b) the must be brought before the Magistrate in fulfilment of Article 22(2) of the
Constitution read with Section 57 of the Code ; OR,

36 Moly v. State of Kerala, (2004) 4 SCC 284, para. 12.

37 Supra note 1, para. 8.
434 Journal of the Indian Law Institute [Vol. 60: 4

the accused may have been reanded by the Magistrate under Section 167 of the
Code but upon the expiry of 15 days or the period fixed by the Magistrate is
brought before the Court; OR,
(c) the accused appears pursuant to a summons or a warrant of arrest issued by
the Magistrate.
In all the above cases, the accused is strictly before the Magistrate as a result of the
control exercised by the Magistrate and it is in respect of such cases that he can be
released on bail.
The observations of the Supreme Court regarding existence of a vacuum are premised
on the submissions of the accused who had contended before the Supreme Court that
since the offence for which he was charged fell in the category of offence covered
under Section 437(1)(i)38, the Magistrate was disabled from even considering the issue.
It is respectfully submitted that the contention is not tenable. Section 437(1)(i) of the
Code provides that if there appears reasonable grounds for believing that the accused
has been guilty of committing such offence punishable with death or imprisonment
for life shall not be released. Therefore, a Magistrate is enabled by the Code to exercise
his judicial mind to examine if there are reasonable grounds for believing that the
accused has been guilty of committing such offence. In Gurcharan Singh v. State (Delhi
Admn.)39 (“Gurcharan Singh”), the Supreme Court has held that:
“22…It is also clear that when an accused is brought before the Court of a Magistrate
with the allegation against him of an offence punishable with death or imprisonment
for life, he has ordinarily no option in the matter but to refuse bail subject, however, to
the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains
a reasonable belief on the materials that the accused has not been guilty of such an
offence. This will, however, be an extraordinary occasion since there will be some
material at the stage of initial arrest, for the accusation or for strong suspicion of
commission by the person of such an offence.”
It is clear from the above quote extract that a Magistrate is not altogether disabled
from exercising of jurisdiction, contrary to the findings of the Supreme Court. In fact,
notwithstanding the limited restriction on exercise of jurisdiction under Section
437(1)(i), a magistrate can still grant bail if the accused is a woman or below 16 years
of age or is sick or is infirm. Given that restriction imposed by Section 437(1) is
relaxed by a further proviso, it necessarily follows that there is no absolute legislative

38 Section 437(1)(i) of the Code provides that “such person shall not be so released if there appear
reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for
life.”
39 (1978) 1 SCC 118, at 127.
2018] Notes and Comments 435

vacuum as has been held by the Supreme Court in Bafna but a conscious legislative
policy. It must further be understood that for a Magistrate to determine whether the
accused is a woman or a child under 16 years of age or is sick or infirm, the accused
would have to apply for and make himself available in the custody of the Magistrate
court. The Magistrate is the court of first instance, and it is the Magistrate alone40
that is empowered to regulate custody in the first instance41 in all categories of cases42.
Section 439 of the Code confers ‘special powers’ upon the High Court and the Sessions
Court, but does not either recognize the absence of power of a Magistrate or dwindle
the power of a Magistrate under Section 437 of the Code. It is submitted that the
jurisdiction of the Court of Session and the High Court under Section 439 is ‘co-
extensive’ with that of the Magistrate under Section 437 of the Code43 which is also
evident by presence of sub-section (2) of Section 439 which provides for cancellation
of bail granted under “this Chapter”. Whereas, Section 437 of the Code contemplates

40 It may be noted that Section 437 of the Code was substantially amended from its predecessor
provision, namely, Section 497 of the Code of Criminal Procedure, 1898 which did not contain
the words “other than the High Court or Court of Session”. Thus, the new Code does not consider
the High Court or the Court of Session to be treated as a Court of first instance under Section
437 of the Code. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, the Supreme
Court has held that, “24. Section 439(1) CrPC of the new Code, on the other hand, confers
special powers on the High Court or the Court of Session in respect of bail. Unlike under Section
437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the
Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is,
however, legitimate to suppose that the High Court or the Court of Session will be approached
by an accused only after he has failed before the Magistrate and after the investigation has
progressed throwing light on the evidence and circumstances implicating the accused. Even so,
the High Court or the Court of Session will have to exercise its judicial discretion in considering
the question of granting of bail under Section 439(1) CrPC of the new Code”
41 Section 437 (2) of the Code empowers the Court to release the accused on bail if at any stage
of the investigation or inquiry or trial there are no reasonable grounds for believing that he
accused has committed a non-bailable offence. This again goes to show that even during
investigation or trial if the Magistrate so considers it he may allow the accused to be released on
bail.
42 Therefore, it is submitted that in the hiatus between remand and committal of the case, the
Magistrate has the power to consider bail applications for all offences; however, the Magistrate
cannot grant bail only when he applies his mind and reaches to a conclusion that the accused
“has been guilty” of having committed an offences punishable with death or imprisonment for
life, but he can grant bail in all other cases even if they are triable by Court of Sessions.
43 In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, the Supreme Court has observed that,
“….Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section
437 of the Code in respect of a person who is suspected of the commission of such an offence, arrested and
detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for
believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for
life.”
436 Journal of the Indian Law Institute [Vol. 60: 4

only ‘arrest’, ‘detention’ and ‘brought before a Court’, Section 439 is attracted when
the accused is in ‘custody’.44 It can be well be stated that Parliament’s use of different
phrases is not without any consequence, and it is intended that one will approach the
Sessions Court or the High Court only after having approached a magistrate.45
Regard may also be had to Section 438(1B)46 of the Code and Section 438(4) of the
Code47 which provide that upon application of the public prosecutor the Court may
direct (physical)48 presence of the accused at the time of final hearing. Hence, the
word ‘custody’ appearing in Section 439 of the Code cannot be equated with mere
‘presence’ as contemplated under Section 438 of the Code, which is the effect of the
judgment in Bafna as it permits the accused to be present before a High Court or a
Sessions Court and request the court to ‘accept’ its custody.
VI Scope of Magistrate’s Jurisdiction to Grant Bail
It is submitted that an accused in the first instance is to be brought before a Magistrate
who, irrespective of the nature of offence committed, regulates his custody until the
committal takes place under Section 209 of the Code. Even if a case is triable by
Sessions, the Magistrate has complete jurisdiction over the case. The Magistrate takes
cognizance in the first instance under Section 190, directs the supply of the chargesheet,
the First Information Report and other relevant documents in compliance with Section
207 and 208 of the Code and then proceeds to perform the act of committal under
Section 209 of the Code. It is irreconcilable with scheme of the Code to say that any
judicial officer vested with judicial powers has to act only as a ‘post box’ and is barred
from applying its mind to the case.
In fact, there are 12 such offences under the Indian Penal Code49, which even though
punishable with imprisonment for life are triable by Magistrate and therefore, there is

44 It is submitted that in the instant case, the accused had been physically present before the
Supreme Court on every day of the hearing.
45 It is submitted that even under Section 437(1)(i) of the Code it is only when magistrate applies
his mind and concludes that the person accused ‘has been guilty’ of an offence punishable with
death or life imprisonment that he is disempowered from granting bail. A reading of Section
437 and Section 439 makes it clear that the power of the Sessions Court to grant bail will arise
only after the Magistrate has refused to grant bail. See Gurcharan Singh v. State (Delhi Administration),
(1978) 1 SCC 118, para. 14 wherein the Supreme Court observed that “Since the Sessions Judge or
the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible
to hold that the mandate of the law of bail under Section 437, Cr. P. C. for the Magistrate will be ignored by
the High Court or by the Sessions Judge.”
46 Not yet notified.
47 Notified on 28.07.1993 in State of Maharashtra.
48 See State of W.B. v. Pranab Ranjan Roy, (1998) 3 SCC 209.
49 Indian Penal Code, 1860, Sections 326, 377, 388, 389, 394, 409, 467, 472, 474, 475, and 477.
2018] Notes and Comments 437

no general bar that the Magistrate cannot deal with ‘a heinous crime’, and it is untenable
to content that in respect of ‘heinous crimes’ the Magistrate is merely a ‘post-box’.
It may be that the law does not empower the judicial officer to exercise his discretion
in certain situations, but even then the judicial officer will need to apply his mind to
see whether the situation or the case before him falls in that category of cases in which
he is not permitted to exercise discretion by law. In Sanjay Narhar Malshe v. State of
Maharashtra50, the Hon’ble Bombay High Court held that:-
“… Nevertheless the fact remains that there is no total prohibition against grant of
bail merely because a person is accused of commission of offence of serious nature.
Besides, if we peruse Section 209 of the Code which deals with the committal
proceedings, it is apparent that even in the course of the committal proceedings there
is no bar imposed upon the powers of Magistrate in the matter of grant or refusal of
bail. Clause (b) of Section 209 clearly provides that while dealing with the accused
persons appearing and brought before the Magistrate having committed the matter as
the same is triable exclusively by the Court of Sessions, while the Magistrate is
enjoined to commit the proceedings to the Court of Sessions or the Special Court
constituted under any special statute, the accused may be remanded to the custody
until such committal proceedings are complete, subject to the provisions of the Code
relating to the bail. In other words while the Magistrate is empowered to remand the
accused to the custody until the conclusion of the committal proceedings, that is to say,
till the proceedings are placed before the Court of Sessions or the Special Court, as
the case may be, the powers of the Magistrate either to grant the bail if asked for or
to refuse the same are not restricted in any manner.”
Similar view has been taken by Allahabad High Court in Ram Bharoshi v. State of U.P.51
wherein it has been held that:
“13. It is imperative that the Judicial Magistrates give up the negative tendency to
treat an application for bail in a sessions triable case as an ‘untouchable’ subject, and
to consider and even grant bail, if a case for bail is made out on merits, in the light of
settled principles granting bail, in those cases where the Code of Criminal Procedure
has not prohibited grant of bails by the Magistrates.
15. The result of this unhealthy practice is that a person against whom an F.I.R. is
lodged relating to any Sessions triable offence, which on a plain reading appears to be
a case of false or malicious prosecution, uncorroborated by any independent material,
the accused is left at the mercy of the police, in whose favour the Magistrate has
virtually abdicated his jurisdiction. An accused may have to remain in jail for some

50 2005 Cri LJ 2984, para. 8.

51 2004 (3) Crimes 651.
438 Journal of the Indian Law Institute [Vol. 60: 4

time before his bail application is heard and granted by the Sessions Court, after the
Magistrate’s routine rejection of his prayer for bail even in those minor Sessions
triable offences where there may be no need for taking an accused in custody for the
purpose of investigation, or where palpably he appears to have been implicated falsely,
and there are no other attendant circumstances disentitling the accused from an order
of bail.”
The aforesaid judgment reiterates and develops the view taken by the Allahabad High
Court in Vijay Kumar & Ors v. State of U.P. & Ors.52 Similar view has been taken by
Kerala High Court in Shanu v. State of Kerala53.
In fact, even at the stage of committal, it is clear that for the purposes of committal
the accused has to be produced before a Magistrate and at that stage the Magistrate
can either remand the accused to custody until committal has been made, or remand
the accused to custody until the conclusion of the trial, but the same is subject to the
provisions of the Code relating to bail. Thus, even at the stage of committal, it is open
for an accused person to apply for bail before the committing Magistrate and the
Magistrate, in a fit case, is empowered to consider and grant bail to the accused. In
fact, a Magistrate exercises control over remand even after a charge-sheet is filed and
the trial has commenced by virtue of Section 309(2) of the Code54.
VII Surrendering before the High Court
In Bafna, while the Bombay High Court rejected the Petitioner’s bail application on the
ground that it had no jurisdiction to accept the custody of the accused, the Supreme
Court directed the High Court to accept the custody and decide the bail application
on merits, on the basis that “no provision categorically prohibits the production of an accused
before either of these Courts”. The Supreme Court further strengthened its reasoning that
as the Magistrate is prohibited from considering and granting bail to a person accused
of committing a non-bailable offence punishable with death or imprisonment for life
or seven years or more55, there has to be some court which grant bail to an accused in

52 (1989) 1 AWC 569. However, in Rajendra Nath Srivastava v. State of UP, (1997) A. Cr. R 676, the
Allahabad High Court has held that “… for the safer side while considering bails under Section 437 Cr.
P. C. , it is always better for the Magistrate to first look into the First Schedule appended to Cr. P. C. which
classifies the offence. The column 3 of the Schedule provides the punishment. No sooner the Magistrate finds
that the offence is punishable with death or imprisonment for life, he should refrain from granting bail, except in
cases which fall within the ambit of the proviso added to sub-section (1) of Section 437 Cr. P. C.” and
further directed that the copy the judgment be circulated to all Chief Judicial Magistrates in
Uttar Pradesh. See also, Shreenath Upadhyay v. State of U.P., (2005) 2 UPLBEC 1822.
53 (2001) 1 Crimes 292.
54 State of UP v. Lakshmi Brahman, (1983) 2 SCC 372, para. 13.
55 See Supra n.5, Section 437(1)(ii).
2018] Notes and Comments 439

the first instance without the accused having to languish in custody. And, in absence
of a specific bar upon exercise of jurisdiction by the High Court or the Supreme
Court, such a power can be exercised by the High Court or the Supreme Court. The
Supreme Court reasoned that “…while Section 437 severally curtails the power of the Magistrate
to grant bail in context of the commission of non-bailable offences punishable death or imprisonment
for life, the two higher Courts have only the procedural requirement of giving notice of the Bail
application to the public prosecutor….”56 It is submitted that such an interpretation is not
legally sustainable.
It is submitted that the Code contemplates that matters of custody in the first instance
are to be decided by a Magistrate and not by the Sessions or the High Court. In respect
of bail application under Section 439 of the Code, where the High Court and the
Sessions Court enjoy concurrent jurisdiction, it has been held that that “since the
High Courts enjoy concurrent jurisdiction it would be a salutary practice to direct the
petitioners to approach the Sessions Judge first, but that would remain a self-imposed
constraint, akin to the exercise of the extraordinary jurisdiction reposed in it by virtue
of Article 226 of the Constitution”57.
The Supreme Court has held in Gurcharan Singh58, that “… Under the new as well as the old
Code an accused after being arrested is produced before the Court of a Magistrate. There is no
provision in the Code whereby the accused is for the first time produced after initial arrest before the
Court of Session or before the High Court…” It is submitted that if the Code does not
contemplate production of an accused before the High Court or the Sessions Court
for the first time59, it follows that the Code does not also contemplate a situation
where the accused would himself appear before the High Court and seek that he be
taken into custody and be released on bail under Section 439(1) of the Code. The
accused in the instant case, who was also a proclaimed offender, ought to have appeared
before a Magistrate and surrendered in the first instance.
In fact, the practice of surrendering before the Court of Sessions and the High Court
has been deprecated by several High Courts. In Basanta Sahu v. Padma Charan Sahu,60
the Orissa High Court has held that :
“We deprecate the practice which is developing in some quarters of seeking bail under
Section 439, Cr.P.C from the learned Sessions Judge in proceedings Under Section
488, Cr. P.C. by-passing the Magistrate who should ordinarily deal with the matter

56 Supra n.1, para. 8.

57 Avnish Bajaj v. State (NCT) of Delhi, 2005 (79) DRJ 576, para. 4. See also Hajialisher v. State of
Rajasthan, 1976 Crl LJ 1658 (Raj).
58 Supra n.39.
59 Smt Rani Bala Dey v. State of West Bengal, (2004) 2 Cal LJ 413.
60 (1991) 1 OLR 138.
440 Journal of the Indian Law Institute [Vol. 60: 4

as the Court of first instance. Since under the procedure, the Magistrate is to be
approached first, by-passing him should not be encouraged.”
In Seroman Singh v. State of U.P.61, after having considered Niranjan Singh, the Allahabad
High Court held that there is no provision in the Code allowing the accused to surrender
before the High Court.
“…The High Court, apart from the fact that there is no provision for surrender in
the scheme of the Code of Criminal Procedure before the High Court, the High
Court after accepting the surrender cannot remand the accused to custody…”62
Thus, for the sake of argument even if one assumes that the High Court has not been
disabled by law to accept the custody , and the High Court accepts the custody of the
accused but rejects the bail application, then in that situation the High Court is powerless
under the Code to remand the accused to custody as the said power is exercisable by
Magistrate. It follows that the conclusion reached by the Supreme Court in Bafna is
not the correct position in law.
Attention is also drawn to Basheer v. State of Karntaka63, wherein the accused relied on
Bafna and attempted to surrender before the High Court. However, the High Court
dismissed the Bail Application and directed the accused to surrender before Sessions
Court and seek bail. The Karnataka High Court reasoned that:
“5. There is no gain saying about the proposition enunciated by the Apex Court in
the above case. The petitioners are not showing the special circumstance for not working
out their remedy at the preliminary level before approaching this court, I am of the
considered opinion that instead of disposing of this case on merits, it shall be adjudicated
by the concerned court itself ”.
It appears that the High Court have begun to ‘balance’ the law laid down by the
Supreme Court in Bafna by requiring ‘special circumstance’ to be pleaded. Similar view
was taken by Karnataka High Court in Malappa v. State of Karnataka64 and Delhi High
Court in Dilip Kumar v. State of Haryana65. Some other accused have relied upon Bafna
to seek permission to surrender before the Sessions Court.66 However, the Bombay
High Court in Aihaana Acharya Sharma v. State of Maharashtra67 accepted the custody
of the accused and considered the bail application on merits.

61 MANU/UP/0516/1983.
62 Id., para. 7.
63 2016 SCC OnLine Kar 7295.
64 Id., 7296.
65 2016 SCC OnLine P&H 2787.
66 Hameer Moitheen v. State of Kerala, 2016 SCC OnLine Ker 31885.
67 2015 SCC OnLine Bom 2672.
2018] Notes and Comments 441

VIII Law in Niranjan Singh

Much reliance was placed by the Petitioner and the Supreme Court on the decision of
the Supreme Court in Niranjan Singh68 wherein Krishnya Iyer, J., in his inimitable style
had held that:
“7. When is a person in custody, within the meaning of Section 439 CrPC? 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.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with
anticipatory bail under Section 438) is physical control or at least physical presence
of the accused in court coupled with submission to the jurisdiction and orders of the
court.
9. 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 surrenders before the court and submits to its directions. In
the present case, the police officers 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, enabled the accused persons to circumvent the principle
of Section 439 CrPC. We might have taken a serious view of 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

68 Supra n. 4.
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mentioned that the accused had 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 overselves we might not have granted bail but, sitting under Article 136, do not
feel that we should interfere with a discretion exercised by the two courts below.”
It was on the basis of the aforesaid paragraphs, particularly, paragraph 8, that the
Petitioner accused had argued before the Supreme Court that by being physically present
before the High Court and requesting the High Court to take him into custody, the
accused had fulfilled the condition of being in ‘custody’ in terms of jurisdictional
requirement of Section 439(1) of the Code. Even in passing the judgment in Bafna,
the Supreme Court relied on Niranjan Singh. It is submitted that reliance placed by the
Supreme Court was erroneous. In fact, Niranjan Singh furthers the case that the High
Court ought not to have accepted the Petitioner’s custody as there was no remand or
other order passed by the court of first instance, i.e. a Magistrate.
It is respectfully submitted that in Niranjan Singh, there was a private complaint which
was lodged alleging that two Sub-Inspectors and eight Constables of Ahmednagar
City Police Station had murdered the brother of the complainant when he was
proceeding to Shirdi. As State had taken no action, a private complaint was lodged by
brother of the deceased who was an advocate. An enquiry was ordered by the Magistrate
under Section 202 of the Code and he took oral evidence of witnesses. The Learned
Magistrate found that there are sufficient grounds to proceed against all the accused
for the offences under Sections 302, 323, 342 read with Section 34 of the Indian Penal
Code. Thus, process was issued under Section 204 of the Code and non-bailable
warrants of arrest were issued as process to secure the presence of the accused persons.
The accused persons applied for bail before the Magistrate. The application for bail
before the Magistrate, was obviously relatable to Section 437 of the Code which implied
that they had appeared and were in ‘custody’ at the time of seeking bail fulfilling the
pre-conditions of Section 437 of the Code. The application for bail was rejected by
the Magistrate, who did not compel that the accused person should surrender (which
is the natural consequence of rejection of bail application under Section 437 of the
Code). The Magistrate, however, stayed the issuance of arrest warrants enabling the
accused persons to move to the Sessions Court under Section 439(1) of the Code.
It is submitted that when a person applies for bail under Section 439 of the Code
before the Court of Session after the application for bail is rejected under Section 437
of the Code, he is necessarily subjecting himself to a possible direction of being
remanded to custody (or restrain/detention) and that is why this Hon’ble Court held
that the accused had appeared and surrendered before the Sessions Judge. Thus,
contrary to the facts in Bafna, the condition of appearance before the Magistrate
(pursuant to the process) in the first instance was satisfied in Niranjan Singh, and
consequently the condition of appearance before the Sessions Judge to enable a
2018] Notes and Comments 443

direction to be suffered for being taken into custody was equally satisfied. It is trite
law that even when a person is enlarged on bail he is deemed to be in custody, notionally.
Thus, even while the stay granted by the Magistrate operated, the accused persons in
Niranjan Singh, it could be argued remained in ‘custody’. Merely because the accused
policemen had not been physically detained would not change the legal effect of
appearing before a Magistrate and applying for bail. Regard may be had to paragraph
9 of the Niranjan Singh, wherein the Supreme Court held that:
“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 surrenders before the court and submits to its directions…..”
Hence, having submitted to directions of the Magistrate Court, enabling the accused
to approach the Sessions Court, the accused can well be deemed to be in custody. It is
also submitted that in fact, the Magistrate, upon recording of the evidence came to the
conclusion that offence punishable with life or death sentence was disclosed and legally
all the Magistrate could have done was to reject the bail application in view of the
specific bar under Section 437(1). The observation by the Supreme Court in paragraph
9 that the Magistrate “enabled the accused persons to circumvent the principle of Section 439 Cr.
P. C.” also reaffirms the conclusion. It is submitted that the said judgement on the
contrary, overemphasised the mandatory nature of the requirement under Section
439(1) of the Code of being ‘in custody’. It is pertinent to mention that Niranjan Singh
was decided upon its own facts69 and does not notice the previous judgment in Gurcharan
Singh.
IX Conclusion
‘Court’ is an agency created pursuant to sovereign powers for the purposes of
administering justice in accordance with law. An advantage of dispensing justice in
‘accordance with law’, i.e. the procedure regulating the conduct of proceedings is the
promise of equal treatment that is implicit in it. This promise of equal treatment
brings about certainty and predictability, which form the nucleus rule of law. Therefore,
while the judgment in Bafna is a progressive judgment in so far as civil liberties are
concerned, but it falls short of expectation when judgment from the vantage point of
justice in accordance with law and the right of prosecution to have custody over an
accused. The judgment may result in tilting the balance in favour of the accused,
always wanting to escape the custody. It also results in divesting of power from the
Magistrate, especially at time when the High Court and the Sessions Court are
burgeoning with case-load.
Talha Abdul Rahman*

69 For a similar interpretation see Ram Kishan Misra v. State of U.P., 1986 (10) ACR 8.
* B.A.,LL.B. (Hons.) (NALSAR), B.C.L. (Oxon), Advocate on Record, Supreme Court of India.
The author had the privilege of assisting the Supreme Court in Bafna.