Bail is not a license for committing more crimes, stated the Karnataka High Court holding that the right to claim bail becomes circumscribed if an accused repeatedly commits bailable offence when out on bail [Aluka Sandra Orewa vs State of Karnataka and ors].
A single-judge Bench of Justice Sreenivas Harish Kumar opined that though bail is related to the liberty of a person, misuse of liberty is not justifiable.
“Bail is not a license to commit any number of crimes. Though bail is related to the liberty of a person, misuse of liberty is not justifiable…The right to claim bail under section 436 of Cr.P.C becomes circumscribed when an accused repeatedly commits bailable offence/s,” the Court held.
The observations were made in a bail petition filed by a foreign national woman, Aluka Sandra alias Benny (petitioner), who was accused of offences punishable under Indian Penal Code (IPC) and Information Technology Act (IT Act)
The genesis of the matter lies in a complaint filed by one Pavithra D, who alleged that she had received messages about withdrawal of Rs.10,000 nine times from her bank account.
On inquiry with the bank, it was found that an amount of Rs.90,000 had been withdrawn from her bank account at an ATM counter by the petitioner.
The allegations against the petitioner were that she had collected the data of the ATM card of Pavithra by fixing a device called skimmer to the ATM. Using the data, she forged an ATM card and then withdrew money from the informant’s bank account.
The Sessions Court rejected the bail application of the petitioner primarily on the ground that the offence under Section 420 (Cheating) of IPC is non-bailable and that the petitioner was found to have involved in 60 similar offences.
Aggrieved by the said order, the petitioner approached the High Court.
Senior counsel Hasmath Pasha, appearing for the petitioner submitted that the offences under IT Act are bailable and for this reason the petitioner is entitled to be released on bail as a matter of right. It was further submitted that the contents of FIR did not disclose an offence under Section 420 of the IPC.
The Government Pleader opposed the bail plea submitting that the petitioner was involved in about 60 cases of similar nature. FIRs have been registered against her and other accused persons at various police stations for the same offence, he said.
He added that the petitioner is a habitual offender and if bail is granted she will resort to committing the same offence once again and hence she should not be set free.
He also contended that there are materials indicating that the offences either under Section 420 or Section 468 of IPC can be invoked in the present factual circumstances.
After going through the rival arguments, the Court observed that once a person is released on bail, and he/she goes on to commit another bailable offence, then bail cannot be claimed as a matter of right.
“As a concomitant to this analysis, it may be stated that a person being on bail in relation to available offence and applies for bail having again committed a bailable offence cannot as a matter of right claim bail. Any attempt to liberally interpret the right in this manner without having idea of far-reaching consequences will have disastrous effect on the society or a system, as for instance how the case on hand may adversely affect the banking system. Therefore, the right to claim bail under section 436 of Cr.P.C becomes circumscribed when an accused repeatedly commits bailable offence/s,” the order said.
Despite these observations, the Court proceeded to grant bail to Benny taking into account the fact that she is a woman, and that her passport and visa had already been seized. Moreover, instruments and devices used by her for the crime were also recovered from her, noted the Court.
Benny was directed to furnish a bail bond for Rs 1 lakh with two sureties for like sum, and mark her attendance before Yelahanka police station every Sunday between 9 am and noon, till the conclusion of trial.
The Court also directed her to furnish her address proof and mobile telephone numbers (if more than one) to the trial court. In case she changes her residence, the new address has to be submitted before court. She should retain the same mobile number till the conclusion of trial, the Court added.