The Allahabad High Court has allowed a bail application and clarified that if the accused is not in physicalcustody but his liberty is subject to conditions imposed by the court, then he can apply for bail.
A single-judge bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Jitendra @ Jitendra Kumar Singh.
The application has been filed seeking release of the applicant on bail in Case under Sections 420 and 120-B IPC, Police Station Noida Sector-39, District Commisionerate, Gautam Budh Nagar during pendency of trial.
The aforesaid case has been registered on the basis of an FIR dated 02-05-2021 lodged by an official of M/s CMS Infosystems Pvt Ltd against three named accused persons– (i) Vipendra Kumar, Custodian Employee, (ii) Suraj Singh, Custodian employee and (iii) Aayush, alleging that the company CMS Infosystems Pvt Ltd provides services of loading and unloading of cash in ATMs and withdrawal and deposit of cash to Bank of Baroda.
Between 18:30 and 20:15 on 22-03-2021, the accused persons took out Rs 2,95,000 deposited by Bank customers in a BNA Machine and they repeatedly deposited the same amount in several bank accounts and embezzled a total amount of Rs 26,63,500.
The incident was recorded in the CCTV camera and the company came to know about it through the Bank’s email dated 27- 04-2021.
Vikrant Rana, the counsel for the informant, has 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.
In reply, Senior Counsel Anoop Trivedi, appearing for the applicant, submitted that the applicant was taken into custody 21.06.2021 and he had been released on interim bail by means of an order dated 25.06.2021 passed by the Civil Judge (Senior Division), F.T.C, Gautam Budh Nagar in view of the order passed by the Supreme Court in Writ Petition No 01 of 2020 – In re: Contagion of Covid – 19 in Prisons, subject to certain restraints like the applicant accused will not indulge in any criminal activity, that he will not go outside the district without permission of the Court and he will surrender before the Court upon completion of the period of bail.
His submission is that the aforesaid order passed by the Supreme Court is still in operation and till date, the Supreme Court has not issued any order vacating the order and, therefore, the applicant has not surrendered till date.
He has submitted that the applicant 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 held that, in view of the law laid down in the aforesaid judgments, it is clear that for claiming release on bail, a person has to be in custody of the Court which is not necessarily required to be physical custody. As the applicant had been arrested on 21.06.2021 and he has been released on interim bail on 25.06.2021 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. Therefore, I do not find force in the preliminary objection raised by the counsel for the informant and the same is hereby rejected.
In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent and he has been falsely implicated in the case and that he has no criminal history.
The Court noted,
Thus the informant’s case is that in the BNA Machine, cash cannot be loaded by the custodian and the money which is being deposited by the customers in their respective account can only be withdrawn by any of the customers, and in case the cash runs in shortage or the machine becomes empty, an error is shown by the machine and the message of said error is communicated to MSPs, CMS Company as well as to the bank and only after deposition of money by a customer, the machine starts operating to withdraw the money. The co-accused persons being the custodians, were having access to the BNA machine but the applicant is neither an employee of the Bank nor of the informant and he had no access to the machine.
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As per the averment of the counter affidavit, the alleged wrong was committed by the co-accused– custodians on 22-03-2021 and an information of the same was sent by the Bank to the informant on 27-04-2021 and the FIR was lodged on 02-05-2021 and yet, the applicant has not been made an accused in the FIR.
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.
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.
“Having regard to the aforesaid facts and submissions and keeping in view the fact that FIR of the incident has been lodged after about 1 ½ months since the incident and yet the applicant is not named in the FIR; that the applicant is not an employee of the bank or the cash handling service provider company and he has no access to the BNA machine; that the name of the applicant surfaced during the course of investigation when the informant alleged that certain money has been deposited in his bank account; that there is absolutely no allegation of any act committed by the applicant which may amount to an offence; that the offences are triable by a Magistrate and the applicant has no criminal history, I am of the view that the applicant is entitled to be released on bail,” the Court observed while allowing the bail application.
The Court ordered,
Let the applicant Jitendra @ Jitendra Kumar Singh be released on bail in Case under Sections 420 and 120-B IPC, Police Station Noida Sector-39, District Commisionerate (Gautambudhnagar) on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not influence any witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.