Conditions Imposed During Interim Bail U/S 439(1) Cannot Be Construed To Mean "In Custody" While Reckoning Period For Default Bail : J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that conditions imposed by the court Section 439(1)(a) CrPC while granting bail cannot by any stretch of imagination be construed to mean that accused person is in custody so as to claim the computation of such period in reckoning the period of 180 days of detention to acquire the statutory right of default bail under proviso to sub-section (2) of Section 167 CrPC read with Section 36A(4) of the NDPS Act.

The observations were made by a bench of Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had challenged the order passed by Principal Sessions Judge, Srinagar, whereby the petitioner's application for grant of default bail had been dismissed.

The primary ground on which the petitioner challenged his bail rejection by the District Judge Srinagar was that the period during which he was released on interim bail should be treated as period under custody for the purpose of counting the total period for which the petitioner had been in custody, whereafter his plea for grant of default bail should be considered. The petitioner further contended that the Sessions Judge had fallen into an error by excluding the period during which the petitioner was released on interim bail.

The petitioner argued that the custody of an accused released on bail is deemed to be the custody of the Court and, as such, the whole period, without excluding the period during which the petitioner was on interim bail has to be taken into account while considering his application for grant of default bail.

Perusal of the record revealed the petitioner had moved an application for grant of default bail before the Principal Sessions Judge, Srinagar, on 04.08.2021, contending therein that the investigating agency had failed to produce the charge sheet against him despite lapse of 180 days and, as such, he

is entitled to compulsive bail. Record further revealed that the Sessions Judge, after considering the matter came to the conclusion that even though the charge sheet was not produced by the investigating agency within the stipulated period of 180 days from the date of arrest of the petitioner, yet because the petitioner was on interim bail with effect from 24.05.2021 to 08.07.2021, as such, after excluding the said period, the petitioner had been in custody only for 140 days, thus was not entitled to grant of default bail. It was this order which was being impugned by the petitioner before the bench.

Deciding the matter in controversy Justice Dhar observed that a Court while exercising the discretion of granting bail even for a limited period imposes conditions under Section 439(1)(a), then an accused is released from custody on execution of bonds but imposition of such conditions cannot by any stretch of imagination be construed to mean that an accused person is in custody.

"By imposition of such conditions, the physical custody of the accused does not vest with the Court as his movement is not in any way restricted. It cannot be stated that he was in physical custody of the Court so as to claim the computation of such period in reckoning the period of 180 days of detention to acquire the statutory right under proviso to sub-section (2) of Section 167 Cr. P. C read with Section 36A(4) of the NDPS Act", Justice Dhar explained.

Expounding further the bench also placed reliance on a Judgement of the Supreme Court in Gautam Navlakha vs. National Investigation Agency, 2021 wherein SC observed,

"Broken periods of custody have to be counted while computing the total period of custody undergone by an accused for the purpose of considering his default bail plea, which in other words means that the period during which an accused has not been in custody or has been enlarged on bail cannot be computed while  calculating the period of custody for the purposes of considering the default bail plea".

While dismissing the petition the bench upheld the order of bail rejection by the Principal District and Sessions Judge Srinagar and thereby maintained the petitioner in the instant case cannot be treated to be in detention or custody for the period he was released on temporary bail.

Case Title : Amir Hassan Mir Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 147

Click Here To Read/Download Judgment