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Bombay High Court has noted that a bail application cannot be entertained if the bail applicant is not in custody despite having surrendered before the lower court. The court has refused to grant bail to the three applicants who were accused of subjecting a woman to cruelty.

The three accused, the mother and her two daughters, are accused of subjecting a woman to cruelty under Section 498-A and abetment of suicide under Section 306 of the Indian Penal Code.

Justice Prakash D Naik noted that the crime is serious and therefore custody of the accused is required. “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,” said the court.

The three applicants including the deceased’s mother-in-law and two sisters-in-law. As soon as a complaint was lodged against them, they started moving bail applications. After their applications were rejected by every court, finally the Supreme Court directed them to surrender and apply for regular bail within four weeks.

Following the directions, the accused moved Judicial Magistrate First Class at Shirur to surrender and also applied for bail. Their application was rejected in JMFC and then they moved Session Court. They approached the High Court after Session Court rejected their application.

The three accused submitted that they had surrendered before the JMFC but their surrender was not accepted. They argued that they are ladies, falsely implicated, and need not be in custody as the investigation is complete.

The State government opposed the plea stating “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.”

The High Court bench noted 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.

Going through all the records, the court found that the applicants were trying to mislead the Court while arguing that the Magistrate was not ready to hear the application without a reply from the Investigating Officer.

“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,” Justice Naik observed.

The High Court also discovered a procedural error on the part of JMFC. The applicants, when denied bail by JMFC, moved for temporary bail which was granted by the Magistrate till the next date of hearing.

The court noted 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 period of bail was also not mentioned on the bail order.

“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 High Court said.

As the applicants have already surrendered before JMFC, there was no question of again surrendering before Session Court and High Court.

The High Court bench noted that JMFC has issued a warrant against the applicants and the investigation will be conducted as per law.


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