Allahabad High Court: In an application filed for seeking bail for offences under Sections 420 and 120-B of Penal Code, 1860, Subhash Vidyarthi, J. observed that to claim release on bail, a person must be in custody of the Court which is not necessarily required to be in physical custody.
The informant had raised a preliminary objection that the applicant had been arrested on 21-06-2021 and he was released on short term bail on 25-06-2021 and presently the applicant is not in custody and a person’s bail application can only be considered when he is in custody. Thus, the instant application seeking release of the applicant on bail is not maintainable.
The applicant submitted that he was in physical custody, and although he has been released on interim bail, he is subject to the direction issued by the Court and, therefore he is in constructive custody of the Court.
The Court cited Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, wherein the meaning of the word ‘custody’ was discussed, as the concept that is created is the controlling of a person’s liberty in the course of a criminal investigation or curtailing in a substantial or significant manner a person’s freedom of action. The Court also referred to the decision in Ranveer Singh v. State of U.P., Criminal Misc. Bail Application No. 12715 of 2020, wherein the applicant on being enlarged on interim bail, the applicant filed for regular bail application under Section 439 Code of Criminal Procedure (CrPC) and this Court considered his application for grant of regular bail and the same was allowed. Further, it also took note of the ruling in Satender Kumar Antil v. CBI, 2022 SCC OnLine SC 825, wherein it was held that bail application in a case under Section 420 IPC can be decided without the accused being taken into physical custody.
The Court observed that to claim release on bail, a person must be in custody of the Court which is not necessarily required to be in physical custody. Therefore, as the applicant was arrested and then released on interim bail subject to the condition imposed by the Court, he remains subject to the directions issued by the Court, and he shall be deemed to be in constructive custody of the Court.
The Court further observed that the sole allegation against the applicant is that a certain amount has been deposited in his bank account and to support that allegation, merely a chart has been annexed with the counter affidavit and not even a statement of his account issued by the Bank has been filed. Thus, a mere deposit of an amount in the applicant’s account, without any act of commission having been alleged to have been committed by him, does not prima facie make out the commission of the offence alleged by the applicant.
Further, the Court noted that the First Information Report (FIR) of the incident was lodged after 1 ½ months since the incident and yet the applicant is not named in the FIR.; that he is not an employee of the bank or the cash handling service provider company and has no access to the money deposit machine (BNA) and his name was surfaced during investigation when the informant alleged that certain money has been deposited in his bank account; moreover, there is no allegation of any act committed by the applicant which may amount to an offence and the offences are triable by a Magistrate and he has no criminal history, therefore the Court granted him bail.
[Jitendra Kumar Singh v. State of UP, 2022 SCC OnLine All 674, decided on 30.9.2022]
Advocates who appeared in this case :
Counsel for Applicant:- Advocate Abhijeet Singh
Advocate Anupam Dubey
Counsel for Opposite Party:- Government Advocate Vikrant Rana
