LexNIRMAL JEET KAUR versus THE STATE OF MADHYA PRADESH AND ANR.
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A B NIRMAL JEET KAUR v. THE ST ATE OF MAD HY A PRADESH AND ANR. SEPTEMBER I, 2004 [ARIJJT PASAYAT AND C.K. THAKKER, JJ.] Code of Criminal Proceedure, 197 3-Sections 439 & 438-Application in terms of s.439 pursuant to order passed on application under s.438- C Requirement of applicant being in custody-Held, protection given to accused by High Court while application under S. 439 was pending not sustainable-Accused to surrender to custody so that his application under s.439 can be taken for disposal-Penal Code, 1860-Section 498A & 506 r/ws 34-Dowry Prohibition Act, 1961-Sections 3 & 4. D Code of Criminal Procedure, 1973-Sections 438 & 439-Distinction E F between orders under S. 438 and S. 439. Constitution of India, 1950-Article 141-Rule of stare decisis- Relaxation of-In case of decision rendered per incuriam. Words and Phrases-"Custody"-Meaning of in context of Section 439 of Cr PC. Words and Phrases-"Incuria"-Meaning of Alleging physical and mental torture for not satisfying demand for dowry, complaint was lodged by Appellant against her husband, Respondent No. 2. She alleged commission of offences punishable under Sections 498A and 506 read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 against Respondent No. G 2 and some of his relatives. Respondent No. 2 filed application for protection in terms of Section 438 CrPC before High Court, which disposed of the application directing Respondent No. 2 to approach the appropriate court for regular bail. Respondent No. 2 applied for regular bail before Judicial Magistrate which was rejected. Prayer for H bail before Sessions Court was also rejected. Respondent No. 2 filed 1006 ( N.J. KAUR v. STATE OF MADHYA PRADESH 1007 application in terms of Section 439. CrPC before the High Court. Ad- A interim anticipatory bail was granted. In appeal to this Court, protection to Respondent No. 2 under Section 348 CrPC is assailed by the Appellant. Respondent No. 1, supported the stand of appellant. Respondent No. 2 submitted that for the purpose of making an application in terms of Section 439 CrPC, when the same is pursuant to an order passed on application under Section 438 CrPC, it is not necessary that the applicant should be in custody. Allowing the appeal, the Court B c HELD : 1.1. Unless a person is in custody, an application for bail under Section 439 CrPC would not be maintainable •. He who is under the control of the court or is in the physical hold to an officer with D coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. Terminological dubieties viz. the police has taken a man into informal custody but not arrested him, has detained him for interrogation but not taken him into formal custody are unfair E evasions of the straightforwardness of the law. [1014-C; 1014-E-G) 1.2. Since the expression "custody" though used in various provisions of CrPC, including Section 439, has not been defined in the CrPC, it has to be understood in the setting in which it is used and the F provisions contained in Section 437 which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as "in custody" in a generic sense. The expression "custody" as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused. Section G 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and consequential surrender to the jurisdiction of the Court of the Magistrate. (1014-G-H; 1015-A-BJ H 1008 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. A Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors., B AIR (1980) SC 785, relied on. Black's Law Dictionary by Henry Campbell Black (Sixth Edition), referred to. 2.1. "lncuria" 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" is avoided and ignored if it is rendered, "in C ignoratium of a statute or other binding authority". Same has been accepted, ap
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