Bombay High Court: In the instant case, the applicant was arrested for offences under Sections 420 [Corresponding Section 318, Nyaya Sanhita (“BNS”)] and 120-B [Corresponding Section 61(2), BNS] of the Penal Code, 1860 (“IPC”), Sections 3 and 4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978, and Section 3 of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 (“MPID”) on 29-05-2015. Subsequently, he was granted bail but re-arrested in 2017 till date for another offence. The applicant submitted that cumulating his previous incarceration and the one since 2017, it exceeded the maximum sentence period of seven years imposable for the offences charged against him. The single-Judge Bench of Manish Pitale, J.*, referred to a Supreme Court decision that explained the meaning of custody; and rejected the respondent’s contention that the applicant’s incarceration period had not exceeded the maximum sentence, since the applicant was not in formal custody for some time. The Court held that the applicant deserved to be granted bail for having suffered incarceration beyond the maximum sentence period.
Background
Against his first arrest, the applicant had applied for bail that was rejected by the instant Court. Thereafter, the applicant approached the Supreme Court that passed an order for his release on, and he was released on 10-06-2016. The bail granted by the Supreme Court was later cancelled when the applicant violated the bail conditions. The applicant was arrested again on 16-04-2017 for the offences charged against him under the MPID and was produced before the MPID designated Court (“designated Court”) on 09-10-2017.
The applicant prayed for bail before the designated Court that rejected to afford him the benefit of Section 436-A of the Code of Criminal Procedure, 1973 (“CrPC”), on the ground that the applicant was arrested in connection with the MPID offence and had not been formally taken into custody in the instant case.
The applicant contended that since he had not only undergone one-half of the maximum incarceration period imposed upon him, but in fact undergone imprisonment for more than the maximum sentence period imposed. He submitted that the cumulating the period served between 29-05-2015 to 10-09-2016, and thereafter from 16-04-2017 till the date of decision, stood at seven years and ten months.
The respondent contended that the decision of the designated Court was correct, and the applicant could not be said to have been in custody on 09-10-2017, as claimed by the applicant, vis-a-vis the instant case.
Court’s analysis and decision
The Court said that the period of incarceration undergone by the applicant could not be disputed, and a rough calculation of that period added up to seven years and ten months, and the same could not be disqualified.
The Court found the submission of the respondent that the second period of incarceration could not be related to the instant case as hyper-technical approach and had to be rejected. Since the applicant was arrested the second time on 16-04-2017, he was in custody thereon.
The Court referred to Niranjan Singh v. Prabhakar Rajaram Kharote (1980) 2 SCC 559, wherein the Supreme Court explained when a person in custody under the meaning of Section 439 of CrPC, which was as follows, “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…its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-and-seek niceties sometimes heard in the court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.”
The instant Court opined that the applicant was in custody the second time at least from 09-10-2017 onwards, and adding the same to the previous incarceration, it stood at a total period of seven years and ten months. The Court noted that even if the applicant wereconvicted for the offences charged against him, he had already suffered an incarceration period more than the maximum sentence period that could be imposed upon him.
Therefore, the Court was convinced that the applicant deserved to be released, and therefore the respective authorities were directed to release the applicant.
[Shekhar Chandrashekhar v. State of Maharashtra, 2024 SCC OnLine Bom 2092, decided on 04-07-2024]
*Order by: Justice Manish Pitale
Advocates who appeared in this case:
For the Applicant: Vikram Sutaria, Sharvari Joshi, Agastya Desai, Advocates
For the Respondent: Mayur S. Sonavane, APP
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