The Orissa High Court has recently ruled that an individual granted interim bail is considered to be in 'constructive custody' of the Court presiding over the case and hence, there is no requirement for the accused to surrender before the Court again in order to secure regular bail.

The Single Judge Bench of Justice V. Narasingh was dealing with a Writ Petition filed under Section 482 of the Code of Criminal Procedure seeking the quashing of an order passed by the Special Judge Vigilance remanding the Petitioners to Judicial custody.

Senior Advocate H.K. Mund appeared for the Petitioners while Advocate N. Maharana appeared for the Respondent.

Background: The Petitioners were accused of offences under Section 13(2) read with 13(1)(c) of the Prevention of Corruption Act 1988 and Sections 409/468/471/477-A/120-B of the Indian Penal Code. The petitioners, who are public servants, were alleged to have conspired with subordinate officials to commit criminal activities and were accused of misappropriating Rs.23,63,940, causing wrongful loss to the Government, and forging official documents.

Apprehending arrest in connection with the aforementioned vigilance case, the Petitioners filed an Anticipatory Bail application which was accordingly allowed by the Court in January 2022. Later upon the submission of the charge sheet against the Petitioners, the Special Court took cognizance of the offence and issued summons pursuant to which the Petitioners appeared and filed bail applications.

However, the Special Judge rejected the Petitioners prayer for bail and remanded the accused Petitioners to custody. Challenging this, they approached the High Court.

It was submitted before the High Court that the impugned order is ex-facie illegal and that the Special Judge lost sight of sub-section 3 of Section 438 of Cr.P.C. whereby, the learned Court was required to issue a bailable warrant in the face of the order passed by this Court under Section 438(1) of the Cr.P.C.

The High Court after considering the submissions noted that the Special Court in seisin referred to the judgment of the Apex Court in the case of Satender Kumar Antil vrs. Central Bureau of Investigation & another, reported in 2022 (10) SCC 51 and arrived at the finding that “in cases of category D offence (Economic Offences), the Court shall decide the bail application on merit on the appearance of the accused in Court pursuant to the process issued”.

The High Court further observed that the impugned order is ex-facie illegal in the light of the judgment passed by the Constitution Bench of the Apex Court in the case of Sushila Aggarwal & others Vrs. State (NCT Delhi) & another, AIR 2020 SC 831 wherein, the Apex Court has held that Anticipatory bail once granted shall normally continue till the end of the trial.

The High Court observed, "In the said case, question No.2 referred to constitution Bench was Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court at page-899 (para-77) and while answering such reference, the Apex Court held as under; (2) As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so."

The Court also observed that the word custody has not been defined in Cr.P.C.. yet there is no cavil that the accused who has been released on interim bail is deemed to be in the constructive custody of the Court in seisin. On the legality of the impugned order, the Court stated, "On the touchstone of the authoritative pronouncement of the Apex Court in the case of Sundeep Kumar Bafna (Supra), it is held that by virtue of the interim bail granted, Petitioners are deemed to be in the constructive custody of the Court in seisin and since for reasons already stated, the impugned order is set-aside, the interim order is made absolute till the conclusion of trial on the terms fixed, while releasing the Petitioners."

Further noting that the impugned order has been passed disregarding the order of anticipatory bail granted to the Petitioner, the Court stated, "The justice delivery module of this country follows hierarchical system. In such a system, the Court sub-ordinate in them hierarchy has the bounden duty to follow the direction is issued by the higher Court, otherwise, judicial discipline will go haywire."

Accordingly, the Court set aside the impugned order and made absolute the interim bail granted to the Petitioners.

Cause Title: Susanta Kumar Samantaray and another v. State of Odisha (VIG.) [CRLMC NO.1483 of 2023]

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