Voluntary surrender counts as custody, and the High Court can hear regular bail before committal.

For Section 439 CrPC, custody includes voluntary physical surrender before the court, because custody is not limited to formal arrest or police remand and extends to submission to the court's control. The Supreme Court held that such surrender before the High Court is sufficient custody for a regular bail plea. It also held that the High Court may entertain and decide regular bail before committal to the Court of Session, as the statutory scheme does not bar bail jurisdiction during the interval between cognizance and committal. The order directing the accused to first move the Magistrate was set aside and the bail request was to be considered on merits.

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Issues: (i) whether an accused who physically surrenders before the High Court can be treated as being in custody for the purpose of Section 439 of the Code of Criminal Procedure, 1973; (ii) whether the High Court has jurisdiction to entertain and decide a regular bail application before committal of the case to the Court of Session.

Issue (i): whether an accused who physically surrenders before the High Court can be treated as being in custody for the purpose of Section 439 of the Code of Criminal Procedure, 1973

Analysis: Section 439 requires custody, but custody is not confined to formal arrest and remand by the police or Magistrate. The expression is of elastic content and includes physical submission to the control and jurisdiction of the Court. The Court held that surrender before the Court, followed by submission to its directions, is sufficient to constitute custody. This understanding accords with the settled precedent that custody may arise when the accused appears before the Court and places himself within its control.

Conclusion: Yes. Physical surrender before the High Court amounts to custody for the purpose of Section 439.

Issue (ii): whether the High Court has jurisdiction to entertain and decide a regular bail application before committal of the case to the Court of Session

Analysis: The scheme of the Code creates a gap between cognizance by the Magistrate and committal to the Court of Session, but it does not prohibit the superior courts from considering bail during that interval. Section 193 bars the Court of Session from taking cognizance as a court of original jurisdiction before committal, but that restriction does not extend to bail jurisdiction. Reading Sections 437 and 439 with Article 21, the Court held that a pragmatic interpretation is required so that personal liberty is not left without a remedy. The High Court was therefore not justified in directing the accused to move the Magistrate as a condition precedent to regular bail.

Conclusion: Yes. The High Court can entertain a regular bail plea before committal, once the accused surrenders and is in custody.

Final Conclusion: The impugned order was set aside and the bail application was directed to be considered on merits after acceptance of surrender, thereby reaffirming that surrender before the High Court constitutes custody and that pre-committal bail jurisdiction is available to the High Court.

Ratio Decidendi: For the purpose of Section 439 of the Code of Criminal Procedure, 1973, custody includes voluntary surrender before the Court, and the High Court may entertain a regular bail application before committal where the accused is so in custody.

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