A bail application cannot be entertained if the applicant is not in custody despite having surrendered before the lower court; the Bombay High Court observed denying the bail to the applicant- accused of an offence under Section 498-A of the Indian Penal Code and abetment of suicide under Section 306 IPC.
Justice Prakash D Naik observed that prima facie the applicants provoked the deceased to an extreme degree and hence their custody was paramount for the purpose of facilitating investigation.
“The applicants are seeking bail without undergoing custody. It would be mockery of the justice to grant bail to the applicants by entertaining the application in the peculiar facts of this case”, the Court observed.
Factual Background
Three applicants- the mother, and her two daughters were accused of abetting the suicide of the daughter-in-law/sister-in-law. As soon as the case was registered against them, the applicants approached the court seeking anticipatory bail which was denied in every court till the Apex Court directed the woman to “surrender and apply for regular bail” within 4 weeks.
In accordance with the same, they approached the Judicial Magistrate First Class at Shirur to surrender and apply for bail at the same time. The JMFC rejected their bail application, pursuant to which the applicants approached the Sessions Court. After being rejected from there, they approached the High Court.
Case of the Applicants
The applicants submitted that they had surrendered before the JMC, as stated via the Supreme Court order but their surrender was not accepted. They contended that they are ladies, and the case is falsely fabricated against them and need not be in custody as the investigation is complete.
Case of the Prosecution
The State Government refused the plea by stating that:
“without undergoing custody, the applicants are repeatedly making applications that they should be released on bail. They were not subjected to custody for a single day”.
Observation of the Court
Justice Naik observed that seeking bail right after surrendering without subjecting themselves to serious investigation is an abuse of the process of law and thus denied the bail application. After taking into consideration, the Court concluded that the applicants were trying to mislead the Court by contending that the Magistrate was not ready to hear the application from the Investigating Officer.
The Court was pertinent to note that there was nothing illegal in waiting for a response from the IO, the applicants, however, showed their refusal to undergo custody by not pressing for the application only because the Supreme Court had granted them time to surrender.
The High Court also observed that procedural inconsistency on the part of the JMFC. After the rejection of the bail application by the JMFC, the applicants moved for temporary bail till the next hearing date, which was granted by the Magistrate. The Court observed that the application did not state that under what provision of law relief was sought before the same Court which had rejected the application for bail with taking into consideration the merits. The order did not specify the period of bail.
Justice Naik stated that the applicants moved the Sessions Court for regular bail without being in custody and without stating that they are surrendering. After the rejection of the application, the applicants moved to the High Court.
“This application is wholly misconceived and circumventing principle of Section 439 of Cr.P.C. The applicants had surrendered before the learned J.M.F.C. on 18th January 2021. They were taken in custody. The applicants cannot prefer the application for surrender and bail before this Court”.
The Court also noted that the applicants had surrendered before the JMFC which meant the applicants were already in judicial custody. Hence, the question of “again surrendering” before the Sessions or the High Court did not arise. It was further observed that the JMFC has issued a remand warrant and, therefore, directed the applicants to appear before the JMFC, and in pursuance to subjecting the applicants to custody, the applicants were granted leave to file for bail before the JMFC, which will be dealt as per the law.
Case Details
Before: Bombay High Court
Case Title: Kausalya Dnyaoba Dhemdhere
Coram: Hon’ble Justice Mr. Prakash D Naik
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