Section 439 of the Code of Criminal Procedure, 1973 (CrPC) provides that "any person accused of an offence and in custody" may be released on bail. While the phrase "accused of an offence" is quite plain, what does it mean to be in custody?

It is clear from Justice Krishna Iyer's judgment in Niranjan Singh that is not necessary that a person may be in custody only when he is arrested by an investigating agency.  To quote from the judgment:

“...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…

...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…”

However, Niranjan Singh and later Sundeep Kumar Bafna both provide that custody in the context of Section 439 is physical control or at least the physical presence of the accused in court. This has now led to a peculiar circumstance for criminal defence lawyers, especially in economic offences.

The nature of economic offences means that courts in multiple jurisdictions may exercise jurisdiction over the same person in similar or related economic offences. This could mean that hypothetically:

a) Person X is arrested and is kept in judicial custody in Delhi NCR.

b) Investigation concerning certain offences for Person X is under process in Kerala, and Person X is still not arrested.

If it so happens that Person X is now to be arrested in Kerala, he may still be formally arrested despite already being in judicial custody in Delhi NCR. With this context, if we take a look again at the language of Section 439 of the CrPC as interpreted by the Supreme Court, Person X would have to be physically transported by the authorities in Delhi NCR to Kerala merely to “surrender” before the court in Kerala, while his presence has already been secured in another state. Not only would this lead to a tremendous waste of valuable resources, but also unnecessary harassment for Person X. Now if Person X wants a way out from this unfortunate conundrum, there could be two available approaches.

The first would be to argue that the interpretation of ‘custody’ in Niranjan Singh and Sundeep Kumar Bafna could be satisfied even if physical control has been exercised over Person X through another court in another offence. This may satisfy the language of Niranjan Singh which provides that “custody, in the context of Section 439….is physical control or at least physical presence of the accused in court”.

However, there may be myriad issues with this approach, and it would be somewhat at war with how the criminal justice system operates. A better, more practical approach would be to argue that in cases where a person is already in custody in another case, Section 439 could be interpreted liberally to enable surrendering before a court even through video conferencing. The court in Kerala could be requested to issue production warrants to direct Person X’s appearance before it through video conferencing, saving a huge amount of hassle and waste of valuable resources.

Would such an interpretation be advisable? With the advent of COVID-19, the Supreme Court had taken the step to allow all court proceedings to be conducted through video conferencing. It may obviously be argued that the same was only allowed to prevent the spread of COVID-19. However, the Supreme Court has as recently as February 2023 observed that the virtual method of appearing before a court is not to be abandoned post COVID-19, and is to be instead looked at as an alternative method of appearance.

The Model Video Conferencing Rules, which have been adopted almost verbatim by most High Courts in Rules 3 and 6 do also provide that video conferencing facilities may be used at all stages of judicial proceedings. Thus, for the mere purpose of surrendering under Section 439 when Person X is already in custody in other matters, Section 439 may be read harmoniously with the Supreme Court's liberal approach to defining 'custody'.

It would be a practical solution to an otherwise expensive conundrum.

Udipto Koushik Sarmah is a graduate of National Law University Odisha and is currently practicing in the Chambers of Stuti Gujral.