Applying for bail without being in custody an abuse of process of law: Bombay High Court

A bail application cannot be entertained if the bail applicant is not in custody despite having surrendered before the lower court, the Bombay High Court observed refusing to grant bail to the applicants, accused of subjecting a woman to cruelty under Section 498-A of Indian Penal Code and abetment of suicide under Section 306 IPC (Kausalya Dnyanoba Dhemdere & Ors. v. State of Maharashtra). .Justice Prakash D Naik observed that prima facie the applicants seek to have instigated the deceased to take the extreme steps and hence their custody is required to conduct interrogation.."The applicants are seeking bail without undergoing custody. It would be mockery of the Justice to grant bail to the applicants by entertaining this application in the peculiar facts of this case," the Court observed..The factual matrix of the case was that the three applicants, mother and her two daughters, were accused of abetting suicide of the daughter-in-law/ sister-in-law. As soon as a case was registered against them, they moved applications for anticipatory bail which was rejected in every court till finally the Supreme Court directed the woman to "surrender and apply for regular bail" within 4 weeks..Accordingly they moved before 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 the Sessions Court also rejected their bail application, the applicants approached the High Court. .Advocate Ajinkya Udane for the applicants submitted that they had surrendered before the JMFC in view of the Supreme Court order but their surrender was not accepted. They contended that they are ladies, falsely implicated and need not be in custody as the investigation is complete..The State opposed the plea 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." .Justice Naik held that the conduct of the applicants to apply for bail immediately after surrendering without subjecting themselves to questioning in a serious offence was an abuse of process and hence rejected their bail application..After perusing the records, the Court deduced that the applicants were trying to mislead the Court by contending that the Magistrate was not ready to hear the application without a reply from the Investigating Officer. The Court held that while there was nothing illegal in waiting for a response from the IO, the applicants showed their disinclination to undergo custody by not pressing for the application only because the Supreme Court had granted them time to surrender. .The High Court also noted a procedural error on the part of the JMFC. After 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 point out under what provision of law the relief was sought before the same Court which had rejected the application for bail with the observations on merits. The order also did not indicate the period of bail..Justice Naik reasoned that the applicants moved the Sessions Court for regular bail without being in custody and without stating that they are surrendering. After rejection of that application, the applicants approached the High Court. "This application is wholly misconceived and circumventing principle of Section 439 (bail) of Cr.P.C. The applicants had surrendered before learned J.M.F.C. on 18th January 2021. They were taken in custody. The applicants cannot prefer 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. .The Court further noted that the JMFC has issued remand warrant and, therefore, directed the applicants to appear before the JMFC and pursuant to subjecting the applicants to custody, the applicants were granted leave to file for bail before the JMFC, which will be dealt with as per law.[Read Judgment]