Case Note & Summary
The petitioner, who was the Secretary of a public charitable trust, was arrested in connection with allegations of cheating and forgery related to the sale of trust property. An FIR was registered on 27 December 2024 for offences under Sections 471, 468, 465, and 420 of the Indian Penal Code, with Section 409 added subsequently. The petitioner was detained on 6 October 2024 and produced before the Magistrate on 10 October 2025. On 9 December 2025, after 60 days of detention, the petitioner filed an application for default bail under Section 167(2) of the Code of Criminal Procedure, 1973, arguing that since the charge-sheet was not filed within the stipulated period, he had an indefeasible right to bail. The Magistrate rejected the application, noting that Section 409 IPC, which carries a punishment of up to life imprisonment, had been invoked, thus extending the detention period to 90 days under Section 167(2). The petitioner challenged this order via a writ petition under Article 226 of the Constitution and Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023. The core legal issue was whether the Magistrate correctly applied Section 409 IPC to deny default bail and whether this offence was prima facie made out against the petitioner. The petitioner argued that the Magistrate failed to examine whether the petitioner, as a trustee, fell within the seven specified categories of persons under Section 409 IPC, citing precedents that trustees are not agents of the trust. The State and the informant contended that the petitioner committed criminal breach of trust by misappropriating sale proceeds. The High Court analyzed the nature of the right to default bail, emphasizing its foundation in Article 21 and its indefeasible character upon default. It held that the Magistrate must prima facie assess the applicability of offences, not merely rely on sections invoked by the prosecution. Examining Section 409 IPC, the court found that it applies only to specific categories, such as agents, and that trustees hold property in their own right, not as agents, thus the offence was prima facie made out. Consequently, the court dismissed the petition
Headnote
Criminal Law-- Constitution of India, 1950-- Article 226 -- Bharatiya Nagrik Suraksha Sanhita, 2023(BNSS,2023)-- Section 528 -- Code of criminal Procedure, 1973 -- Section 167(2)-- Indian Penal Code, 1860 -- Sections 471, 468, 465, 420 and 409 -- False statements and false documents-- Petitioner/accused instead of depositing amount in trust, deposited said amount in other bank account by forging the signature of chief trustee and other trustees-- Cheating and forgery-- Petitioner filed an application for default bail U/s 167(2) of CRPC as 60 days expired and IO did not file charge sheet-- Rejection of application-- Aggrieved-- Challenged-- Contention as to non applicability of Section 409 of IPC raised by the petitioner therefore charge sheet should be filed within 60 days-- Statutory right U/s 167(2) of CRPC-- Scope and powers U/s 167(2) of CRPC discussed-- Question as to case made out u/s 409 of IPC made out or not?-- Section 409 of IPC referred-- Entrustment of property-- Cases referred-- Petitioner was a trustee and secretary of trust-- Trustee cannot be said to be owner of the property of trust-- Case of breach of duties of the trustee and petitioner sold a larger area of the property of the trust than resolved to by the trust, and converted to his own use part of consideration dishonestly-- Case u/s 409 of IPC made out against the petitioner-- Not entitled to bail-- Petition dismissed Para-- 13, 14, 15, 17, 18, 21, 23, 29
Premium Content
The Headnote is only available to subscribed members.
Subscribe Now to access key legal points
Issue of Consideration: Whether the learned Magistrate was justified in rejecting the petitioner's application for default bail under Section 167(2) of the Code of Criminal Procedure, 1973, on the ground that the offence punishable under Section 409 of the Indian Penal Code was invoked, thereby extending the authorized detention period to 90 days, and whether the offence under Section 409 IPC was prima facie made out against the petitioner.
Premium Content
The Issue of Consideration is only available to subscribed members.
Subscribe Now to access critical case issues
Final Decision
Petition allowed. Impugned order dated 09 December 2025 set aside. Petitioner directed to be released on bail subject to conditions including furnishing PR bond of Rs. 50,000 with one or more sureties, not leaving country without court permission, and cooperating with investigation.
