Bail in a cyber crime FIR with a frozen bank account: Ghaziabad and out-of-state FIRs

The freeze

Section 106 BNSS (the old 102 CrPC), on the request of a cyber cell acting on a complaint through the national cyber crime portal or the 1930 helpline.

The FIR

Usually cheating under Section 318(4) BNS with Sections 66C and 66D of the IT Act, often registered where the complainant lives.

Bail

Anticipatory bail under Section 482 BNSS and regular bail under Sections 480 and 483 BNSS, before the court with jurisdiction over the FIR.

Release of money

Application to the cyber cell, then to the Magistrate under Section 106 BNSS.

Cyber crime cases reach Ghaziabad backwards. The first sign is a debit card that stops working or a bank message that a lien has been marked; the FIR, if there is one, is found days later through the bank, and the complainant may be in Hyderabad or Kochi. A person can be an innocent recipient of tainted money, a trader who sold goods to a fraud victim, a tenant of a mule account, or an accused. Each needs a different response, and the bail question depends on which. The bail guide gives the courts and sections; this page is about the cyber-specific problems.

How the freeze works

A victim reports a fraud on the national cyber crime portal or by calling 1930. The complaint traces the money through the accounts it passed through, and the cyber cell asks each bank to freeze the credited amount, or the whole account, under Section 106 BNSS. The bank obeys without notice to the account holder. No FIR is needed for the freeze; the complaint is enough. So the freeze tells you nothing, by itself, about whether a case exists or whether you are named in it.

The bank is obliged to give you the basis of the freeze: the police station or cyber cell, the state, the complaint or FIR number, and the officer. That letter is the first document in every application that follows, and the frozen account guide sets out how to get it and what to do with it.

Which position you are in

• Third party. Money from the fraud passed through your account in an ordinary transaction, you are not named, and the freeze is the only problem. The remedy is release of the account, not bail.
• Witness or suspect. You are called by the cyber cell to explain a transaction. Section 35(3) BNSS applies; you appear with counsel and a written explanation, as on the police are calling page, which applies here as much as to matrimonial complaints.
• Accused. Your name is in the FIR, usually under Section 318(4) BNS for cheating, Section 316 BNS for criminal breach of trust, and Sections 66C and 66D of the Information Technology Act, 2000 for identity theft and cheating by personation. Bail becomes the first question.

The out-of-state FIR

Bail is granted by the court that has jurisdiction over the FIR. For an FIR registered at the Cyber Crime police station in Ghaziabad, that is the Court of Sessions at RDC and the Allahabad High Court. For an FIR registered in Telangana or Kerala, it is the Sessions Court and High Court there, and an application in Ghaziabad for anticipatory bail in that case is not maintainable in the ordinary way.

That leaves a gap: the person lives in Ghaziabad, the police from the other state may come to arrest, and the competent court is two days away. The Supreme Court has recognised a limited power in the Sessions Court or High Court of the place where the accused lives to grant interim protection for a short period, so that he can approach the competent court, where the accused shows a genuine fear of arrest and a reason he could not go there first. It is a bridge, granted sparingly, with the competent court told of it. The chamber uses it where the facts support it, and briefs counsel in the other state for the substantive application at the same time.

Anticipatory bail where you are named

Cheating under Section 318(4) BNS carries up to seven years, so the notice procedure under Section 35(3) BNSS and the rule in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, apply: arrest needs recorded reasons. The anticipatory bail application under Section 482 BNSS is built on the transaction documents. In a cyber case the court wants to see that the money came in for a reason: an invoice, a sale listing, a delivery record, a rent receipt, a loan repayment, a chat that shows a genuine deal. It wants to see the account's history before and after, to answer the suspicion that it was opened or lent for this purpose. And it wants cooperation: the appearance on notice, the documents handed over, the account statement supplied without being asked. The general grounds and conditions are on the Section 482 BNSS page.

Where the account was lent to someone else, the court looks hard at the account holder. Lending an account for a commission is the mule account the cyber cells are built to find, and the fact that the holder did not know the source of the money is the defence at trial, not a reason for the court to assume innocence at the bail stage. The application is honest about it and shows what the holder did once he learnt.

If arrest has already happened

A person arrested in Ghaziabad on an out-of-state FIR is produced before the Magistrate here for a transit remand and taken to the state of the FIR, where regular bail under Section 480 and then Section 483 BNSS is sought. A person arrested on a Ghaziabad FIR goes before the Magistrate at RDC within 24 hours, and the bail application starts there. Same-day listing and the surety papers are covered on the urgent bail hearing page. The Supreme Court in Satender Kumar Antil v. CBI, (2022) 10 SCC 51, directed courts to treat an accused who was never arrested during investigation generously at the charge sheet stage, which is often the position of a cyber accused who cooperated.

Getting the account released

The freeze and the bail are separate proceedings. The release application goes first to the cyber cell that requested the freeze, with the bank's letter, the transaction documents, the account's history and proof of the holder's identity and business. If the cell does not act, an application goes to the Magistrate having jurisdiction under Section 106 BNSS, and where the freeze is of a whole account for a small disputed sum, the High Court can be moved on the ground that the freeze is disproportionate. Do not return money to the complainant or to anyone who calls claiming to be from the cyber cell; release comes by order, and a voluntary transfer reads as an admission.

When the case should not exist

Some cyber FIRs are commercial disputes: goods delivered and then disputed, a service paid for and cancelled, a refund fought over. Where the papers show that, the remedy is a petition to the High Court with jurisdiction to quash the FIR as a civil dispute given a criminal colour. For a Ghaziabad FIR that is the Allahabad High Court, and the route is on the FIR quashing page. The bail application and the quashing petition are often filed together. Everything else about bail, from the sureties to the conditions, is in the bail guide.

Read next

• Anticipatory bail under Section 482 BNSS in the Ghaziabad Sessions Court
• Urgent bail hearing tomorrow morning in Ghaziabad
• The police are calling you: what to do before the FIR

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