Unarrested accused cannot be jailed for not seeking bail: HC

The petitioner was never arrested during the investigation, but he appeared before the court over the summons. We fail to understand on what basis the special judge formed an opinion that he ought to have applied for bail, the court said

MUMBAI: The Bombay High Court has held that an accused cannot be remanded to judicial custody merely for not applying for bail, particularly when he was never arrested during the investigation and had consistently appeared before the court in response to summons.

Bombay High Court (Anshuman Poyrekar/HT PHOTO)

The ruling came in a case stemming from a 2023 FIR alleging that partners of a firm, AS Agri and Aqua Limited Liability Partnership, cheated its investors of ₹350 crore by promising high returns. Offences under sections 406 (criminal breach of trust), 420 (cheating), 427 (mischief causing damage), 120B (criminal conspiracy) of the Bharatiya Nyaya Sanhita and relevant provisions of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999.

The petitioner, Santosh Nandgaonkar, who was involved in the management of the LLP, was not named as an accused in the original chargesheet filed on August 28, 2023, before a Thane sessions court. His name was later added through a supplementary chargesheet filed on January 29, 2024.

Nandgaonkar was never arrested during the investigation and claimed to have cooperated fully with the probe, appearing before the court whenever summoned. However, on November 4 this year, a special judge ordered his arrest on the grounds that he had not obtained a bail order and remanded him to judicial custody.

After his bail application was rejected on November 25, Nandgaonkar approached the high court, challenging what he termed his remand as “unlawful and arbitrary detention”.

Appearing for him, senior advocate Abad Ponda argued that since Nandgaonkar was neither arrested nor in custody during the investigation, and the investigating agency never sought his remand, there was no legal basis to detain him. “When an accused appears before the court, who is neither arrested nor in custody, no question of remand arises”, he said.

Similarly, Additional public prosecutor S.R. Agarkar submitted that the state had never sought Nandgaonkar’s custody.

Quashing the remand order, a division bench of Justices Bharati Dangre and Shyam C. Chandak observed on December 8 that no question of detention arose, as the petitioner was not in custody and had always responded to summons. The court added that it failed to understand on what basis the special judge concluded that Nandgaonkar was required to apply for bail.

“The petitioner was never arrested during the investigation, but he appeared before the court over the summons. We fail to understand on what basis the special judge formed an opinion that he ought to have applied for bail”, the bench said.

Holding that the special judge was “completely unjustified” in remanding Nandgaonkar to custody merely for not seeking bail, the high court noted that custodial interrogation was unnecessary as the chargesheet had already been filed, and directed jail authorities to release him immediately.