ROBERT GRAGERY DSOUZA v. THE STATE OF MAHARASHTRA AND ANR
Applicability of Section 409 IPC to Trustees as 'Agents' for the Purpose of Determining the Statutory Period for Default Bail under Section 167(2) CrPC.
Court: Bombay High Court
Citation: 2026:BHC-AS:12002
Decision Date: 11-03-2026
List of Laws
Indian Penal Code, 1860 (Section 405, 409, 420, 465, 467, 468, 471); Code of Criminal Procedure, 1973 (Section 167(2)); Bhartiya Nagarik Suraksha Sanhita, 2023 (Section 528); Constitution of India (Article 21, 226); Maharashtra Public Trusts Act, 1950; Indian Trusts Act, 1882
- Facts: The petitioner, Robert Gragery D’Souza, served as the Secretary of the Shejar Chhaya Trust, a public charitable trust. It was alleged that the petitioner obtained sanction from the Charity Commissioner to sell a larger area of trust land than authorized by using forged documents and false statements. Furthermore, he allegedly opened a new bank account by forging signatures of other trustees, credited an advance consideration of Rs. 1.20 Crores into it, and subsequently transferred the funds to his personal educational trust. An F.I.R. was registered under Sections 420, 465, 468, and 471 of the Indian Penal Code (IPC), with Section 409 (Criminal breach of trust by public servant, or by banker, merchant or agent) being added later. The petitioner was arrested in October 2025. After 60 days of detention, the petitioner applied for default bail, arguing that the 90-day period under Section 167(2) of the CrPC did not apply as Section 409 was not attracted to a "Trustee".
- Procedural Posture: The petitioner moved the High Court of Bombay under Article 226 of the Constitution of India and Section 528 of the Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023, challenging the order dated 9th December 2025 passed by the Magistrate, Vasai, which rejected his application for default bail.
- Issue: Whether a Trustee of a charitable trust, who is entrusted with property and allegedly misappropriates funds, can be classified as an "agent" under Section 409 of the IPC, thereby extending the charge-sheet filing period for default bail to 90 days?
- Holding: Yes, the petition was dismissed. The Court held that for the purpose of statutory bail, the ingredients of Section 409 IPC were prima facie attracted to the petitioner.
- Reasoning: The Court reasoned that Section 167(2) of the Code is a facet of Article 21 of the Constitution, and while a Magistrate must not mechanically apply sections, they must determine if the invoked sections are prima facie applicable. Regarding Section 409 IPC, the Court relied on the Supreme Court's decisions in R. K. Dalmia vs. Delhi Administration and CBI vs. Duncans Agro Industries Ltd. It observed that the term "agent" in Section 409 is not restricted to professional agents but includes anyone acting in a representative capacity. A trustee, while a legal owner, holds property for the benefit of others and can act as an agent of the trust for specific tasks like selling property and receiving consideration. Since the petitioner was entrusted with trust property and allegedly converted sale proceeds for personal use, the acts fell within the "tentacles" of Section 409 IPC, justifying the 90-day period for filing a charge-sheet.
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