Sakina Tashrifwala
Published on: October 4, 2022 at 19:49 IST
The Allahabad High Court recently ruled that an accused does not have to be in physical custody while submitting a bail application.
The Court explained that if the accused is not in physical custody but his liberty is subject to the terms established by the Court, he can petition for normal bail.
The bench of Justice Saurabh Vidyarthi made this observation while granting regular bail to Jitendra, who is charged under Sections 420 and 120B of the IPC.
The Court noted that he was not identified in the FIR and that his identity came to light during the inquiry.
CMS Infosystems Pvt. Ltd., according to the facts of the case, is a corporation that provides services for loading and unloading cash in ATMs, as well as cash withdrawal and deposit.
The firm filed a FIR against three of its workers, accusing them of embezzling around 26 lakh 63 thousand five hundred rupees by withdrawing money from the BNA ATM.
Though the petitioner was not identified in the FIR, it was discovered during the inquiry that a portion of the withdrawn sum was put in his bank account, implicating him in the crime.
He was arrested on June 21, 2021, and was released on short-term bond on June 25, 2021. The applicant is now not in detention.
He applied to the High Court for ordinary bail.
The counsel for the informant firm submitted a preliminary objection at the beginning, stating that the applicant is not currently in detention and that a person’s bail application may only be examined when he is in custody.
As a result, he contended that the current application seeking the applicant’s release on bail is not maintainable.
On the other hand, the applicant’s senior counsel, Anoop Trivedi, stated that the Civil Judge (Senior Division), F.T.C., Gautam Budh Nagar, had granted him interim bail on June 25, 2021, in light of the Supreme Court’s order in Writ Petition No. 01 of 2020 – In re: Contagion of COVID-19 in Prisons, subject to certain restraints.
Senior Advocate Trivedi further contended that because the Supreme Court’s order is still in effect because it has not been vacated, the petitioner did not submit to date before the Court.
Finally, it was argued that the applicant was in physical custody, and that even though he had been released on interim bail, he is subject to the Court’s direction, and so he is in constructive custody of the Court, and thus he might be given regular bail.
Observation of the Courts:
The Court stated at the outset that in order to claim release on bail, a person must be in the custody of the Court, which does not have to be physical custody, and since, in the instant case, the applicant was arrested on June 21, 2021 and released on interim bail on June 25, 2021 subject to the conditions imposed by the Court, he remained subject to the Court’s directions, and thus, he shall be deemed to be in constructive custody.
As a result, the Court dismissed the preliminary objection submitted by the informant’s counsel because it lacked merit.
Furthermore, the Court noted that the applicant’s sole allegation is that a certain amount was deposited in his bank account, and thus the Court opined that a mere deposit of an amount in the applicant’s account, without any act of commission alleged to have been committed by him, does not prima facie make out the commission of the offence alleged by the applicant.
Given this, and noting that the applicant is not an employee of the bank or the cash handling service provider company, and that he has no access to the BNA machine, and that the applicant’s name surfaced during the course of the investigation when the informant alleged that certain money had been deposited in his bank account.
The Court granted him bail on the provision of a personal bond and two sureties, each in the like amount, to the satisfaction of the court concerned.