Magistrate’s Procedural Lapse Leads to Bail in ATM Fraud Case

Date of post - 2025-10-04


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 Noonmati P.S. Case No. 76/2025. The allegation was that the accused swapped an ATM card inside an SBI booth at Narangi Kalangpar Market and defrauded the complainant of ₹40,000. The prosecution maintained that Kumar was part of a larger gang involved in ATM fraud.

Key Procedural Irregularity

The controversy did not center merely on the allegations of fraud but on the Magistrate’s handling of custody after the arrest.

  • After his arrest, Kumar sustained injuries and was admitted to Gauhati Medical College & Hospital.
  • The Investigating Officer submitted a forwarding report to the Magistrate, seeking permission to produce him through video conferencing.
  • The Magistrate, however, neither authorized judicial nor police custody, nor arranged for his virtual production.
  • Instead, the Magistrate directed that Kumar be produced only after his release from hospital—leaving his legal status undefined for more than 45 days.

This amounted to a failure to adhere to procedural regularity mandated under Article 22(2) of the Constitution of India and Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

Court’s Observations

The Gauhati High Court came down strongly on the lapse:

  • Every arrestee must be produced before a Magistrate within 24 hours, excluding travel time.
  • Even in medical emergencies, the Magistrate is duty-bound to either visit the hospital personally or permit production via video conferencing.
  • The Magistrate’s omission to pass a remand order—whether judicial or police—meant that the custody became illegal after 24 hours.
  • Such inaction amounted to violation of both Article 22(2) (right against unlawful detention) and Article 21 (right to liberty).

The Court held that the Magistrate erred in leaving the petitioner in a state of indefinite custody without authority of law, thereby vitiating the arrest itself.

Decision

The High Court granted bail to the petitioner, subject to strict conditions, including furnishing a bond of ₹30,000 with two sureties, appearing before the Investigating Officer post-release, not leaving Kamrup (M) without permission, and providing complete identity details.

Why This Case Matters

This judgment underscores that procedural regularity is not a mere formality but a constitutional safeguard. A Magistrate’s failure to issue a clear remand order or make alternative arrangements (such as video conferencing) can render custody illegal, even in serious cases like organized ATM fraud.

It serves as a reminder to the judiciary that due process cannot be compromised, and procedural lapses on the part of Magistrates can directly impact the liberty of individuals.