Gauhati High Court Grants Bail in ATM Fraud Case Due to Procedural Violations

Gauhati High Court Grants Bail in ATM Fraud Case Due to Procedural Violations Date of order - 2025-06-02


Case Title: Bittu Kumar v. State of Assam
Case No.: Bail Appln./1662/2025
Court: The Gauhati High Court (High Court of Assam, Nagaland, Mizoram, and Arunachal Pradesh)
Date of Order: 02 June 2025
Judge: Hon’ble Mr. Justice Mridul Kumar Kalita

Background

The petitioner, Bittu Kumar, was arrested on 15.04.2025 in connection with Noonmati P.S. Case No. 76/2025. The FIR alleged that the complainant was defrauded of ₹40,000 after his ATM card was swapped inside an SBI booth at Narangi Kalangpar Market. Kumar was accused of being part of a gang engaged in ATM fraud.

Petitioner’s Contentions

Represented by Advocate Sandeep Mitra and others, the petitioner argued:

  • He was injured during arrest and admitted to Gauhati Medical College & Hospital (GMCH).
  • The Magistrate failed to pass any remand order—neither judicial nor police custody—after the forwarding report was submitted.
  • The Magistrate’s omission violated Article 22(2) of the Constitution, which mandates production before a Magistrate within 24 hours.
  • Cited precedents including Directorate of Enforcement v. Subhash Sharma (2025), Khatri v. State of Bihar (1980), and others.

State’s Arguments

The prosecution contended that:

  • The petitioner was a member of an ATM fraud gang, with incriminating material found in the case diary.
  • He was injured while attempting to escape custody and required medical treatment.
  • The Investigating Officer had sought permission to produce him via video conferencing, but the Magistrate directed his production after hospital release.

Court’s Observations

The High Court emphasized:

  • Article 22(2) & Section 57 of BNSS (2023) require an arrestee to be produced before a Magistrate within 24 hours.
  • Even if hospitalization prevents physical production, the Magistrate must ascertain the condition via video conferencing or personal visit.
  • No remand order was passed for 45 days while the petitioner was in GMCH, rendering his custody illegal after the first 24 hours.
  • The Magistrate erred in failing to clarify the status of the petitioner (arrestee vs. free person).
  • The prolonged detention without remand violated both Article 22(2) and Article 21 (right to liberty).

Decision

The Gauhati High Court held that the continued custody of the petitioner was unconstitutional. Consequently, bail was granted with conditions:

  1. Bail bond of ₹30,000 with two sureties.
  2. Must appear before the IO of Noonmati P.S. immediately after release.
  3. Cannot leave Kamrup (M) jurisdiction without court’s permission.
  4. Must provide valid ID and contact details.
  5. Breach of conditions will lead to cancellation of bail.

Significance

This case reiterates the constitutional safeguard of timely production before a Magistrate and underscores that even practical hurdles such as hospitalization cannot override fundamental rights. It highlights the judiciary’s role in preventing unlawful detention and ensuring due process under the BNSS, 2023.

The judgment also serves as a reminder for Magistrates to exercise vigilance in remand proceedings, especially when medical exigencies arise.