1. The petitioner incarcerated in the FIR captioned above came before this Court
under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular
bail.
2. In paragraph 12 of the bail petition, the accused declares that he has no criminal
antecedents.
3. The facts and allegations are being taken from the status report filed by the State,
which reads as follows:-
4. The petitioner's counsel prays for bail by imposing any stringent conditions and
contends that further pre-trial incarceration would cause an irreversible injustice to the
petitioner and their family.
5. The State's counsel opposes bail and refers to the reply.
6. It would be appropriate to refer to the following portions of the reply, which read
as follows:-
15. That there is sufficient evidence against petitioner to
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have committed the above mentioned offence. He had actively
participated in the commission of above mentioned organized crime.
He is the active member of the gang of known criminals, which is
indulged in committing such kind of organized crimes, which is
serious threat to the social system. The petitioner along with co-
accused used to extort money from the innocent persons by putting
them under fear of Lawrance Bishnoi gang and if the victim like
complainant did not pay the demanded money, they fired gunshots at
the complainant. As such, the offenders like petitioner and co-
accused are creating fear in the society and extort money. Petitioner
Mohit @Tinku is also the active member of said syndicate. He along
with co- accused Yashwinder @ Yash was in the contact of co-
accused Arvind @ Gilli, who is the son of his/ Yashwinder @ Yash
real aunt (Bua) and said Arvind @ Gilli has contacted with the
Laurance Bishnoi gang members namely Aashu @ Bhanu and Kala
Rana etc. After getting the extortion money from the victims, the
goons sent by Arvind @ Gilli used to hand over the extorted money in
cash to Yashwinder @ Yash and petitioner co- accused Mohit @
Tinku and they (petitioner and Yashwinder @ Yash) used keep the
said money with them and thereafter, they used to send/transfer such
money to the persons/mobile numbers/bank accounts as provided to
them by Arvind @ Gilli through Pay Bingo and Rupay Pay App by
giving the cash amount to shopkeepers namely Prince Gupta and
Tushar Singla by visiting their shops. After sending the money, they
used to delete the voice message, text message, account number and
name of persons to whom the money was transferred from their
mobile phones, which were being sent to them by co-accused Arvind
@ Gilli. In the present case also, after committing the incident of
firing at the complainant, when co-accused Aman @ Changa and
Deepak @ Dippi etc. had gone to Hardiwar, on the asking of
petitioner, co-accused Yashwinder @ Yash had sent Rs. 5,000/- on
11.11.2023 and Rs. 20,000/- on 13.11.2023 to Aman @ Changa etc.
from his mobile No. 8901311613 in the bank accounts as provided
by Arvind @ Gilli, which is also mentioned in the account
statements of shopkeepers obtained during investigation. All the
above mentioned illegalities were being committed by petitioner and
co-accused for lust of money by putting the victims under fear. All
these facts have also been admitted by petitioner in his disclosure
statement, pursuant to which, he got recovered the diary, in which he
had made entries mentioning the details of extortion money received
by him and regarding further sending of the same to co-accused As
such, petitioner had actively participated in the commission of above
mentioned offence. Charges in the present case are yet to be framed
and if petitioner is enlarged on bail, he can tamper with the
prosecution evidence by influencing and intimidating the prosecution
witnesses and he can also hamper the trial by absconding from the
process of law. Merely on the basis of longevity of incarceration,
present petitioner is not entitled to the relief of bail as a matter of
right. Thus, keeping in view the seriousness of offence, facts and
circumstances of the case, role of petitioner in committing the crime
and modus operandi of accused persons, petitioner is not entitled to
the relief of bail as claimed for."
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7. There is sufficient primafacie evidence connecting the petitioner with the alleged
crime. However, pre-trial incarceration should not be a replica of post-conviction
sentencing.
8. Per paragraph 9 of the bail petition, the petitioner has been in custody since
01.12.2023. Per the custody certificate dated 14.11.2024, the petitioner's total custody in
this FIR is 11 months and 13 days.
9. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the
primafacie analysis of the nature of allegations and the other factors peculiar to this case,
there would be no justifiability for further pre-trial incarceration at this stage.
10. The petitioner's bail shall not be treated as a precedent for granting bail to the
other co-accused with a higher role.
11. Without commenting on the case's merits, in the facts and circumstances peculiar
to this case, and for the reasons mentioned above, the petitioner makes a case for bail.
This order shall come into force from the time it is uploaded on this Court's official
webpage.
12. Given above, provided the petitioner is not required in any other case, the
petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds
to the satisfaction of the concerned Court and due to unavailability before any nearest
Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must
be satisfied that if the accused fails to appear, such surety can produce the accused.
13. While furnishing a personal bond, the petitioner shall mention the
following personal identification details:
1. AADHAR number
2. Passport number (If available) and when the
attesting officer/court considers it appropriate or
considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
14. This order is subject to the petitioner's complying with the following terms.
15. The petitioner shall abide by all statutory bond conditions and appear before the
concerned Court(s) on all dates. The petitioner shall not tamper with the evidence,
influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any
witnesses, Police officials, or any other person acquainted with the facts and
circumstances of the case or dissuade them from disclosing such facts to the Police or the
Court.
16. Given the nature of the allegations and the other circumstances peculiar to this
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case, the petitioner shall not enter the property, workplace, and residence of the victim
until the statements of all non-official and informal witnesses in the trial are recorded.
This Court is imposing this condition to rule out any attempt by the accused to
incapacitate, influence, or cause any discomfort to the victim. Reference be made to
Vikram Singh v Central Bureau of Investigation, 2018 All SCR (Crl.) 458); and Aparna
Bhatt v. The State of Madhya Pradesh, 2021:INSC:192, 2021 SCC Online SC 230.
17. Given the background of allegations against the petitioner, it becomes paramount
to protect the victim, and their family members, as well as the members of society, and
incapacitating the accused would be one of the primary options until the filing of the
closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict
the possession of firearm(s). [This restriction is being imposed based on the
preponderance of evidence of probability and not of evidence of certainty, i.e., beyond
reasonable doubt; and as such, it is not to be construed as an intermediate sanction].
Given the nature of the allegations and the other circumstances peculiar to this case, the
petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the
arms license to the concerned authority within fifteen days from release from prison and
inform the Investigator about the compliance. However, subject to the Indian Arms Act,
1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this
case, provided otherwise permissible in the concerned rules. Restricting firearms would
instill confidence in the victim(s), their families, and society; it would also restrain the
accused from influencing the witnesses and repeating the offense.
18. The conditions mentioned above imposed by this court are to endeavor to reform
and ensure the accused does not repeat the offense. In Mohammed Zubair v. State of NCT
of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29,
decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that
"The bail conditions imposed by the Court must not only have a nexus to the purpose that
they seek to serve but must also be proportional to the purpose of imposing them. The
courts, while imposing bail conditions must balance the liberty of the accused and the
necessity of a fair trial. While doing so, conditions that would result in the deprivation of
rights and liberties must be eschewed."
19. This bail is conditional, and the foundational condition is that if the petitioner
indulges in any non-bailable offense, the State shall file an application for cancellation of
this bail before the Sessions Court, which shall be at liberty to cancel this bail.
20. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
21. A certified copy of this order would not be needed for furnishing bonds, and any
Advocate for the Petitioner can download this order along with case status from the
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official web page of this Court and attest it to be a true copy. If the attesting officer wants
to verify its authenticity, such an officer can also verify its authenticity and may
download and use the downloaded copy for attesting bonds.
22. Petition allowed in terms mentioned above. All pending applications, if any,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
24.01.2025
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
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