Unarrested Accused Cannot Be Jailed for Not Seeking Bail: Bombay High Court Reaffirms Due Process

Introduction

In a significant reaffirmation of personal liberty and criminal procedure safeguards, the Bombay High Court has held that an accused cannot be remanded to judicial custody merely for not applying for bail, particularly when the individual was never arrested during investigation and consistently appeared before the court pursuant to summons. The ruling underscores the constitutional limits on judicial power and reinforces the settled principle that custody is a legal status, not a procedural assumption.

Background of the Case

The ruling arose from a criminal case registered in 2023, involving allegations that partners of AS Agri and Aqua Limited Liability Partnership defrauded investors of approximately ₹350 crore by promising unusually high returns.

Alleged Offences

The FIR invoked the following provisions:

  • Section 406, Bharatiya Nyaya Sanhita, 2023 – Criminal breach of trust

  • Section 420, Bharatiya Nyaya Sanhita, 2023 – Cheating

  • Section 427, Bharatiya Nyaya Sanhita, 2023 – Mischief causing damage

  • Section 120B, Bharatiya Nyaya Sanhita, 2023 – Criminal conspiracy

  • Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999

Status of the Petitioner During Investigation

The petitioner, Santosh Nandgaonkar, was involved in the management of the LLP. Crucially:

  • He was not named in the original chargesheet filed on August 28, 2023

  • His name was added only through a supplementary chargesheet filed on January 29, 2024

  • He was never arrested during investigation

  • The investigating agency never sought his custodial remand

  • He consistently appeared before the trial court whenever summoned

The Impugned Remand Order

Despite the above facts, on November 4, a special judge ordered Nandgaonkar’s arrest and remanded him to judicial custody, solely on the ground that he had not obtained a bail order.

Subsequently:

  • His bail application was rejected on November 25

  • He approached the Bombay High Court, challenging the remand as unlawful and arbitrary detention

Arguments Before the High Court

Submissions on Behalf of the Petitioner

Senior Advocate Abad Ponda contended that:

  • An accused who is neither arrested nor in custody cannot be remanded

  • When an accused appears pursuant to summons, no question of bail arises

  • The remand order violated settled principles of criminal procedure and personal liberty

Stand of the State

Additional Public Prosecutor S.R. Agarkar fairly conceded that:

  • The prosecution never sought the petitioner’s custody

  • There was no request for remand at any stage of the investigation

High Court’s Findings and Ruling

A Division Bench comprising Justice Bharati Dangre and Justice Shyam C. Chandak, by its order dated December 8, quashed the remand order and directed the immediate release of the petitioner.

The Court categorically held:

  • There was no legal basis to remand the petitioner to custody

  • The petitioner was never arrested and was not in custody

  • The trial court was completely unjustified in directing remand merely because bail was not sought

  • Custodial interrogation was unnecessary, particularly as the chargesheet had already been filed

The Bench observed:

“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.”

Statutory Framework Governing Arrest and Custody

Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023

  • Section 41 CrPC / Corresponding BNSS provision – Arrest is not automatic and must satisfy statutory necessity

  • Section 167 CrPC – Remand applies only when the accused is already in custody

  • Section 204 CrPC – Appearance pursuant to summons does not place an accused in custody

An accused who appears on summons is deemed to be at liberty, unless lawfully arrested.

Constitutional Protection of Personal Liberty

Article 21 of the Constitution of India

  • Guarantees that no person shall be deprived of personal liberty except according to procedure established by law

  • Any detention without lawful arrest or statutory authority is unconstitutional

The High Court’s ruling reinforces that judicial orders cannot substitute statutory requirements for arrest or detention.

Judicial Precedents Supporting the Ruling

Siddharth v. State of Uttar Pradesh (2021) 1 SCC 676

The Supreme Court held that:

  • Arrest is not mandatory upon filing of a chargesheet

  • If custodial interrogation is unnecessary, arrest should be avoided

Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

The Court emphasized:

  • Arrest must be justified by necessity

  • Mechanical arrests violate Article 21

Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260

Held that:

  • Arrest is a serious invasion of liberty

  • Police and courts must justify its necessity

These principles equally bind trial courts, not merely investigating agencies.

Legal Significance of the Judgment

This ruling is important for several reasons:

  • It clarifies that bail is relevant only after arrest

  • It prevents the misuse of judicial remand as a coercive tool

  • It strengthens the distinction between summons cases and custodial cases

  • It protects accused persons from arbitrary incarceration

The judgment sends a clear message that courts must not create custody where the law does not recognise it.

Conclusion

The Bombay High Court’s decision is a timely reaffirmation of criminal due process and constitutional liberty. By holding that an unarrested accused cannot be jailed merely for not seeking bail, the Court has reinforced the foundational principle that liberty is the rule and detention the exception.

The ruling serves as a crucial reminder that judicial discretion must operate within statutory and constitutional boundaries, and that personal liberty cannot be curtailed through procedural shortcuts or misplaced assumptions.

Location: Pune, Maharashtra, India

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