Accused On Interim Bail Deemed To Be In 'Constructive Custody' Of Court; Need Not Surrender To Avail Regular Bail: Orissa High Court

The Orissa High Court has recently held that the accused released on interim bail is deemed to be in 'constructive custody' of the Court in seisin over the matter and hence, he need not surrender before it again to be released on regular bail.

While granting bail to two accused persons, the Single Bench of Justice V. Narasingh observed:

“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.”

The Court was hearing a petition filed by two persons under Section 482 of the CrPC accused of misappropriating government funds and thereby, causing wrongful loss to the government exchequer.

Apprehending their arrest, they had initially approached the High Court seeking anticipatory bail which was allowed on certain conditions. However, after the charge sheet was submitted before the trial Court, they were summoned and remanded to police custody.

Assailing such an order of the trial Court, they had sought protection from the High Court and were granted interim bail.

The question which arose for consideration before the High Court is whether the accused persons need to surrender before the trial Court in order to avail regular bail.

To answer the question, the Court placed reliance on the decision of the Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra & Anr. wherein the term 'custody' was elaborately discussed. Further, the Court relied upon the judgment authored by Justice VR Krishna Iyer in Niranjan Singh v. Prabhakar Rajaram Kharote which has held as follows:

“He (the accused) can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial/custody when he surrenders before the court and submits to its directions.”

Having regard to the above observation of the top Court, the High Court was of the considered view that by virtue of interim bail, the accused persons shall be deemed to be in 'constructive custody' of the Court and therefore, they need not surrender again to avail regular bail.

Accordingly, the interim bail granted to the accused persons was made absolute till the conclusion of the trial.

Case Title: Susanta Kumar Samantaray and another v. State of Odisha (Vigilance)

Case No: CRLMC No. 1483 of 2023

Date of Judgment: December 18, 2023

Counsel for the Petitioners: Mr. H.K. Mund, Senior Advocate

Counsel for the State: Mr. N. Maharana, Standing Counsel (Vigilance)

Citation: 2023 LiveLaw (Ori) 119

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