Punjab-Haryana High Court
Pawan Kumar vs Inspector (Preventive) on 5 March, 2025
Neutral Citation No:=2025:PHHC:032260
CRM-M-19076-2024 -1-
286
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-19076-2024 (O&M)
Date of decision: 05.03.2025
Pawan Kumar
... Petitioner
Vs.
Inspector (Preventive), Central Goods and Services Tax
... Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Anoop Verma, Advocate
for the petitioner.
Mr. Sourabh Goel, Senior Standing Counsel, CBIC with
Mr. Samridhi Jain, Advocate and
Mr. Akash Khurana, Advocate
for the respondent.
*******
HARPREET SINGH BRAR, J.
1. Present petition is preferred by the petitioner under Section 482 of
the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking quashing of
the order dated 23.02.2024 (Annexure P-11) passed by learned Additional
Sessions Judge, Ludhiana, whereby the petition praying for relaxation of
conditions prescribed for grant of default bail, imposed by learned Chief
Judicial Magistrate, Ludhiana, vide order dated 15.03.2021 (Annexure P-1),
has been dismissed.
1 of 20
Neutral Citation No:=2025:PHHC:032260
FACTUAL MATRIX
2. The facts, tersely put, are that the petitioner was implicated as an
accused in a complaint under Section 132(1)(b) & (c) punishable under Section
132(1)(i) of the Central Goods and Services Tax Act, 2017 (for short 'CGST
Act') read with the corresponding provisions of the Punjab Goods and Services
Tax Act, 2007 (for short 'PGST Act'), and the Integrated Goods and Services
Tax Act, 2017 (for short 'IGST Act'). According to the allegations in the
complaint, co-accused Sahil Jain was the principal orchestrator of a fraudulent
scheme involving fake transactions. He allegedly created 14 firms in the names
of his family members and close associates, designating them as proprietors or
partners. By generating fictitious invoices, he unlawfully availed ineligible
input tax credit and further passed on fraudulent input tax credits to purchasers
based on these fabricated invoices amounting to ₹17.65 crores. The petitioner
was arrested in connection with the case on 12.01.2021. However, the
prosecution failed to complete the investigation and to file the final report
under Section 173 of Cr.P.C. within the statutory period of 60 days.
Consequently, petitioner Pawan Kumar moved an application under Section
167(2) of Cr.P.C. seeking default bail. The said application was allowed and he
was accordingly granted bail vide order dated 15.03.2021 subject to his
furnishing bail bonds in the sum of Rs.1,10,00,000/- (Rupees one crore ten lacs
only) with two sureties in the like amount (at least one surety being local)
among other conditions. After this, the petitioner approached this Court to
2 of 20
Neutral Citation No:=2025:PHHC:032260
assail the conditions of bail by filing CRM-M-16487 of 2021, which was
dismissed vide order dated 28.05.2021 (Annexure P-2). Thereafter, the
petitioner sought modification of bail conditions under Section 440 of Cr.P.C.
before learned Additional Sessions Judge, Ludhiana, which was dismissed vide
order 18.07.2022 (Annexure P-3). Subsequently, the petitioner preferred two
petitions i.e. a civil writ petition seeking directions to release the petitioner on
personal bonds and a petition challenging the order dated 18.07.2022 passed by
learned Additional Sessions Judge, Ludhiana. This Court, vide orders dated
05.09.2022 and 15.03.2023 (Annexures P-4 and P-5), permitted the petitioner
to withdraw the said petition with liberty to avail appropriate remedy available
under law. The petitioner again approached the Court of first instance seeking
modification of default bail conditions, which was dismissed vide order dated
10.04.2023 (Annexure P-7). In order to challenge the order dated 10.04.2023,
the petitioner knocked the doors of the Hon'ble Supreme Court, however, the
petition was dismissed as withdrawn (Annexure P-8). Thereafter, the petitioner
again approached learned Additional Sessions Judge, Ludhiana, by filing
revision and the said petition also met with the same fate as earlier vide order
dated 23.02.2024 (Annexure P-11).
CONTENTIONS
3. Learned counsel for the petitioner, inter alia, contends that the
conditions imposed by learned Chief Judicial Magistrate with regard to
furnishing of surety bonds amounting to Rs.1.10 Crore each and a bank
3 of 20
Neutral Citation No:=2025:PHHC:032260
guarantee to the tune of Rs.55.00 lakhs are manifestly stringent and onerous.
Further, the grant of bail under Section 167(2) of Cr.P.C., as in this case, is an
indefeasible right, which accrued to the accused. The respondent was under a
statutory duty to complete the investigation within 60 days from the date of
authorisation of detention. Since the respondent failed to do the same, the
petitioner was rightly granted default bail under Section 167(2) of Cr.P.C.
However, the imposition of such harsh conditions would not only frustrate the
very object and purpose of Section 167(2) of Cr.P.C., but also violate the
fundamental right as enumerated in Article 21 of the Constitution of India,
grossly infringing the personal liberty of the petitioner. Lastly, it is contended
that the maximum punishment as prescribed under Section 132 of CGST Act is
five years and woefully, the petitioner has already undergone more than 4 years
of custody. This is all the more egregious given that, till date, the charges have
not been framed against the petitioner and the trial is yet to commence.
4. Per contra, learned counsel for the respondent submits that the
conditions imposed upon the petitioner cannot be said to be stringent or
onerous, given that the petitioner and his co-accused are involved in a serious
economic offence, causing loss worth crores of rupees to the Government
exchequer. The petitioner, in connivance with co-accused namely Sahil Jain,
created bogus firms in his name and issue GST invoices without any
movement of goods. The petitioner also made a voluntary statement dated
11.01.20121, wherein he admitted the fact regarding opening different firms on
4 of 20
Neutral Citation No:=2025:PHHC:032260
asking of Sahil Jain in lieu a handsome reward. He also provided his Aadhar
Card and PAN Card to create and register fake firms as a proprietor or a partner
in said firms. Moreover, the petitioner has categorically admitted to having
complete knowledge of the bogus billing scam being carried out by Sahil Jain.
The petitioner is also involved in passing of input tax credit of Rs.8,75,13,522/-
in order to defraud the Government exchequer. Further, it is contended that the
petitioner has approached this Court as well as learned Sessions Court
numerous times and every time, the conditions imposed by learned Chief
Judicial Magistrate, Ludhiana have been upheld. Resultantly, learned Chief
Judicial Magistrate has passed a well-reasoned order based on correct
appreciation of evidence available on record, which has been upheld by both
learned lower Appellate Court and this Court. As such, no interference is
warranted in the instant petition. Lastly, it is submitted that the petitioner has
filed another petition i.e. CRM-M-11533 of 2024 before this Court, seeking
relief under Section 436-A of Cr.P.C. Therefore, the instant petition is not
maintainable and deserves to be dismissed on this ground alone. However,
learned counsel for the respondent could not controvert that charges are yet to
be framed and the petitioner has already spent more than 04 years in custody.
OBSERVATIONS AND ANALYSIS
5. At the very outset, the conditions imposed by learned Chief
Judicial Magistrate, Ludhiana, while granting the bail, are reproduced herein
below:
5 of 20
Neutral Citation No:=2025:PHHC:032260
"Hence accused Pawan Kumar is admitted to bail in this
complaint, titled Inspector (Prevention) of CGST
Commissionerate, Ludhiana Vs. Pawan Kumar under Section
132(1) (b & c) Punishable Under Section 132(1) (i) of CGST Act,
2017 read with corresponding sections of Punjab GST Act, 2007
and IGST Act, 2017, on his furnishing bail bonds in the sum of
Rs.One Crore Ten Lacs (Rs.1,10,00,000/-) with two sureties in
the like amount (Atleast one Local) and subject to the conditions
mentioned below:
1. Accused shall furnish a bank guarantee/FDR for an
amount of Rs.55 Lakh to be forfeited to the State in case of
violation of any of the terms and conditions imposed vide
this order.
2. Accused shall come present on each and every date of
hearing for appearance in the Court and for trial of the case.
3. Accused shall not leave the jurisdiction of this
Country without permission of the Court. He shall surrender
his passport in the court if he possesses the same and in case
he do not hold any passport his undertaking in form of an
affidavit that he will not get any passport issued in his name
without permission of the court.
4. Accused shall not commit any offence of like nature
or any other offence punishable under law.
5. Accused shall not try to influence the witnesses of the
prosecution or tamper with the evidence.
6. Accused shall not change his appearance during the
course of trial.
7. Accused shall not change his address without prior
intimation to this Court.
8. Accused shall not induce, threat or promise any
witness to refrain him/her from deposing in the case during
the investigation or trial. Accused shall make available
himself before I.O./Authority holding investigation to assist
the investigating machinery as and when called upon to
appear before the authority concerned till final investigation
or as and when directed by the Court and accused will
cooperate with the investigation even during his release on
bail.
6 of 20
Neutral Citation No:=2025:PHHC:032260
9. In case of default by the accused in complying with
the conditions of bail enumerated above, his bail shall be
cancelled, his bail bonds and surety bonds liable to be
canceled and forfeited to the State and he shall be liable to
be prosecuted under Section 446 of the Cr.P.C." (emphasis
added)
6. Having heard learned counsel for the parties and after perusing
the record of the case with their able assistance, it transpires that as per the
custody certificate, the petitioner has been in custody for the past 04 years, 01
month and 20 days, while the maximum sentence for the alleged offences is 05
years. What pricks the conscience of this Court is that in spite of the fact that
the complaint was filed in the year 2022 and the petitioner has been
incarcerated since the last 04 years and the trial is yet to commence. Moreover,
the conditions imposed upon the petitioner to avail the concession of bail are
lamentably disproportional.
7. Before delving further into the matter, a gainful reference can be
made to the case titled as In Re Policy Strategy for Grant of Bail, (2024) 10
SCC 685, wherein the Hon'ble Supreme Court dealt with the issue of
undertrial prisoners, who were granted the concession of bail, but owing to
their inability to satisfy the conditions imposed therein, continue to be
incarcerated and issued the following directions:
"10. With a view to ameliorate the problems a number of direc-
tions are sought. We have examined the directions which we repro-
duce hereinafter with certain modifications:
"1) The Court which grants bail to an undertrial prisoner/
convict would be required to send a soft copy of the bail or-
der by e-mail to the prisoner through the Jail Superintendent
7 of 20
Neutral Citation No:=2025:PHHC:032260
on the same day or the next day. The Jail Superintendent
would be required to enter the date of grant of bail in the e-
prisons software [or any other software which is being used
by the Prison Department].
2) If the accused is not released within a period of 7 days
from the date of grant of bail, it would be the duty of the Su-
perintendent of Jail to inform the Secretary, DLSA who may
depute para legal volunteer or jail visiting advocate to inter-
act with the prisoner and assist the prisoner in all ways pos-
sible for his release.
3) NIC would make attempts to create necessary fields in the
e-prison software so that the date of grant of bail and date of
release are entered by the Prison Department and in case the
prisoner is not released within 7 days, then an automatic
email can be sent to the Secretary, DLSA.
4) The Secretary, DLSA with a view to find out the economic
condition of the accused, may take help of the Probation Offi-
cers or the Para Legal Volunteers to prepare a report on the
socio-economic conditions of the inmate which may be
placed before the concerned Court with a request to relax the
condition(s) of bail/surety.
5) In cases where the undertrial or convict requests that he
can furnish bail bond or sureties once released, then in an
appropriate case, the Court may consider granting tempo-
rary bail for a specified period to the accused so that he can
furnish bail bond or sureties.
6) If the bail bonds are not furnished within one month from
the date of grant bail, the concerned Court may suo moto
take up the case and consider whether the conditions of bail
require modification/ relaxation.
7) One of the reasons which delays the release of the ac-
cused/ convict is the insistence upon local surety. It is sug-
gested that in such cases, the courts may not impose the con-
dition of local surety."
8. Adverting to the matter at hand, it appears that, in violation of the
above-mentioned directions, the District Legal Services Authority (for short
8 of 20
Neutral Citation No:=2025:PHHC:032260
'DLSA') has made no efforts to assist the petitioner in securing his release.
Nothing available on the record indicates whether the DLSA even had the
knowledge qua the circumstances of the petitioner, to say nothing of
preparation of the socio-economic report with a subsequent request to relax the
conditions imposed. The petitioner has been condemned unheard, languishing
in custody for over four years without even framing of charges. This is a stark
negation of his fundamental right to a fair trial. This inaction has effectively
converted pre-trial detention into a punitive sentence, disregarding the bedrock
principle of criminal jurisprudence that an accused is presumed innocent until
proven guilty.
9. Pertinently, the petitioner was unjustly incarcerated for over 04
years, while the maximum sentence for the offences allegedly committed by
him is 05 years. As such, not only the petitioner did accrue the right to be
released on default bail as elucidated under Section 167(2) Cr.P.C. but also the
right to be released under Section 479 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short 'BNSS'). As per the proviso to Section 479 of BNSS,
the petitioner should have been released since he has already undergone
detention for the period extending up to one-third of the maximum period
prescribed for that offence. Section 479 of BNSS is reproduced herein below:
9 of 20
Neutral Citation No:=2025:PHHC:032260
"479. Maximum period for which undertrial prisoner can be
detained.
(1) Where a person has, during the period of investigation,
inquiry or trial under this Sanhita of an offence under any law
(not being an offence for which the punishment of death or life
imprisonment has been specified as one of the punishments under
that law) undergone detention for a period extending up to one-
half of the maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court on bail:
Provided that where such person is a first-time offender
(who has never been convicted of any offence in the past) he shall
be released on bond by the Court, if he has undergone detention
for the period extending up to one-third of the maximum period of
imprisonment specified for such offence under that law:
Provided further that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period longer
than one-half of the said period or release him on bail bond
instead of his bond:
Provided also that no such person shall in any case be
detained during the period of investigation, inquiry or trial for
more than the maximum period of imprisonment provided for the
said offence under that law.
Explanation.-In computing the period of detention under
this section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be excluded.
(2) Notwithstanding anything in sub-section (1), and subject to
the third proviso thereof, where an investigation, inquiry or trial in
more than one offence or in multiple cases are pending against a
person, he shall not be released on bail by the Court.
(3) The Superintendent of jail, where the accused person is
detained, on completion of one-half or one-third of the period
mentioned in sub-section (1), as the case may be, shall forthwith
make an application in writing to the Court to proceed under sub-
section (1) for the release of such person on bail.
10. While the complaint (supra) was filed before the enactment of the
BNSS, the provision of Section 479 BNSS would still be applicable to the
10 of 20
Neutral Citation No:=2025:PHHC:032260
present case, as the same has been given retrospective effect by the Hon'ble
Supreme Court in light of the order dated 23.08.2024 passed in In Re-Inhu-
man Conditions in 1382 Prisons, wherein speaking through Justice Hima
Kohli, the following was observed:
"3. Today, Ms. Aishwarya Bhati, learned Additional Solicitor
General, submits that pursuant to the aforesaid order, instructions
have been obtained from the Department to the effect that the
aforesaid provision under the BNSS shall apply to all undertrials
in pending cases irrespective of whether the case was registered
against them before 01st July, 2024, the date when the newly
minted legislation has come into effect.
4. In that view of the matter, it is deemed appropriate to direct
immediate implementation of Section 479 of the BNSS by calling
upon Superintendents of Jails across the country wherever
accused persons are detained as undertrials, to process their
applications to the concerned Courts upon their completion of
one-half/one-third, as the case may be, of the period mentioned
in sub-section (1) of the said provision, for their release on bail.
This step will go a long way in easing overcrowding in jails
which is the primary focus of this Court in the present petition.
5. The aforesaid steps shall be taken as expeditiously as possible,
preferably within two months from today. Reports shall be
submitted by the Superintendent Jails to their respective Heads of
the Department within the same time line for a comprehensive
affidavit to be filed by each State Government/Union Territory
through their respective Chief Secretaries. The affidavits shall
furnish the details of the number of undertrials who would be
entitled to extension of the benefit of Section 479 of the BNSS, the
number of applications moved before the concerned Courts for
their release and the number of undertrials actually released by
the date of filing of the affidavits." (emphasis added)
11. The legal query that need consideration for disposal of the present
petition is as follows:
Whether the imposition of stringent financial and other onerous
conditions is permissible while granting default bail under Section
11 of 20
Neutral Citation No:=2025:PHHC:032260
167(2) of Cr.P.C. (now Section 187(3) of BNSS) and bail under
Section 479 of the BNSS?
12. Personal liberty holds a pre-eminent position in our constitutional
framework, embodying the essence of fundamental rights enshrined in the
Constitution. In the present case, onerous conditions such as furnishing surety
bonds of Rs.1.10 crore from each of the two sureties as well as a bank
guarantee to the tune of Rs.55.00 lakhs have been imposed as a pre-requisite
for grant of bail. This Court is of the considered opinion that such an approach
is antithetical to the principles of justice and fairness. The primary objective of
bail is to ensure the appearance of the accused at trial, and this objective can be
achieved by releasing him on bail and imposing reasonable conditions. A
surety bond of such exorbitant value cannot be deemed reasonable in good
conscience, as it effectively places a monetary price on liberty, which is
inherently invaluable. Judicial custody, it must be underscored, is preventive in
nature and not punitive. Therefore, deprivation of liberty must not be used as a
form of punishment but rather as a measure of last resort to secure the ends of
justice.
13. Further still, the imposition of such an egregious condition would,
in almost all cases, result in the accused being unable to furnish the required
surety, thereby depriving them of their liberty and subjecting them to the harsh
realities of jail life. The psychological and physical toll of incarceration during
this phase can be devastating. The adverse impact extends beyond the
12 of 20
Neutral Citation No:=2025:PHHC:032260
individual to their innocent family members, who bear the burden of financial
distress and emotional anguish. Such collateral damage undermines the
principle of presumption of innocence and the larger goal of ensuring a fair and
equitable justice system. The Court must remain mindful that social justice is
the cornerstone of our Constitution, and no individual should be priced out of
their liberty in the pursuit of justice.
14. At this juncture, it would be apposite to cite the judgment of the
Hon'ble Supreme Court in Moti Ram Vs. State of M.P., (1978) 4 SCC 47,
wherein Justice Krishna Iyer observed as follows:
"15. It is interesting that American criminological thinking and
research had legislative response and the Bail Reforms Act, 1966
came into being. The then President, Lyndon B. Johnson made
certain observations at the signing ceremony:
"Today, we join to recognize a major development in our sys-
tem of criminal justice: the reform of the bail system. This
system has endured - archaic, unjust and virtually unexam-
ined - since the Judiciary Act of 1789. The principal purpose
of bail is to ensure that an accused person will return for
trial if he is released after arrest. How is that purpose met
under the present system? The defendant with means can af-
ford to pay bail. He can afford to buy his freedom.
But the poorer defendant cannot pay the price. He
languishes in jail weeks, months and perhaps even years be-
fore trial. He does not stay in jail because he is guilty. He
does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee
before trial. He stays in jail for one reason only--because he
is poor..."
xxx xxx xxx
17. The Encyclopaedia Britannica brings out the same point even
in more affluent societies:
13 of 20
Neutral Citation No:=2025:PHHC:032260
"We should suggest that the Magistrate must always bear in
mind that monetary bail is not a necessary element of the
criminal process and even if risk of monetary loss is a deter-
rent against fleeing from justice, it is not the only deterrent
and there are other factors which are sufficient deterrents
against flight. The Magistrate must abandon the antiquated
concept under which pre-trial release could be ordered only
against monetary Bail. That concept is out-dated and experi-
ence has shown that it has done more harm than good."
15. Further, the Hon'ble Apex Court in Hussainara Khatoon and
others vs. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98, speaking
through Justice P.N. Bhagwati, highlighted the dire state of affairs and opined
as follows:
"4. It is high time that our Parliament realises that risk of
monetary loss is not the only deterrent against fleeing from justice,
but there are also other factors which act as equal deterrents
against fleeing. Ours is a socialist republic with social justice as
the signature tune of our Constitution and Parliament would do
well to consider whether it would not be more consonant with the
ethos of our Constitution that instead of risk of financial loss,
other relevant considerations such as family ties, roots in the
community, job security, membership of stable organisations etc.,
should be the determinative factors in grant of bail and the
accused should in appropriate cases be released on his personal
bond without monetary obligation. Of course it may be necessary
in such a case to provide by an amendment of the penal law that if
the accused wilfully fails to appear in compliance with the
promise contained in his personal bond, he shall be liable to penal
action. But even under the law as it stands today the courts must
abandon the antiquated concept under which pretrial release is
ordered only against bail with sureties...."
16. As mentioned previously, the petitioner has undergone over 04
years in custody, in spite of being eligible for default bail, as provided by
14 of 20
Neutral Citation No:=2025:PHHC:032260
Section 167(2) of Cr.P.C., merely because of his inability to meet the onerous
conditions imposed by learned Court below. It is trite law that grant of bail
under Section 167(2) of Cr.P.C. is an indefeasible right, which accrues to the
petitioner upon failure of the investigating agency to conclude the investigation
within the stipulated timeframe i.e. expiration of the prescribed period of 90
days or 60 days, as applicable. Once this right accrues, the accused is entitled
to bail upon expressing readiness and furnishing the requisite bail bonds as
directed by the Magistrate. Further, default bail is not only a statutory right but
flows from the cherished fundamental right to life and liberty as enshrined
under Article 21 of the Constitution of India. As such, grant of default bail can
reasonably be construed to be a fundamental right once the conditions as
prescribed in the first proviso to Section 167(2) of Cr.P.C. are fulfilled.
Reference in this regard can be made to the judgments rendered by the Hon'ble
Supreme Court in Rakesh Kumar Paul Vs. State of Assam, (2017) 15 SCC 67
and Bikramjit Singh Vs. State of Punjab, (2020) 10 SCC 616.
17. The right to default bail, rooted in the fundamental protections of
Article 21 of the Constitution of India, cannot be frustrated by imposing
excessively stringent or onerous conditions for furnishing bail bonds. Article
21 of the Constitution of India, is not a mere privilege but a fundamental
safeguard against arbitrary detention. Any attempt to frustrate it by imposing
excessive, unreasonable, or onerous conditions for furnishing bail bonds is
nothing but a blatant subversion of the law. It is a well-settled principle that
15 of 20
Neutral Citation No:=2025:PHHC:032260
what cannot be done directly cannot be achieved indirectly. Therefore, the
imposition of unreasonable bail conditions in cases of default bail, which
would almost in all cases amount to an arbitrary deprivation of personal liberty,
will defeat the very purpose of this statutory and constitutional safeguard.
18. The Hon'ble Supreme Court, in Guddan alias Roop Narayan Vs.
State of Rajasthan, 2023 SCC OnLine 1242, addressed the issue of excessive
bail conditions imposed by the High Court. In this case, the High Court had
required the accused to deposit ₹1,00,000 along with surety of an additional
₹1,00,000 and two further bail bonds of ₹50,000 each. The Hon'ble Supreme
Court found these conditions to be excessive, effectively amounting to a denial
of bail. The Court noted that since the appellant was unable to arrange the
required amount and remained in jail as a result, it was evident that the
conditions imposed were beyond his financial capacity. Similarly, in
Saravanan Vs. State represented by the Inspector of Police, (2020) 9 SCC
101, the Hon'ble Apex Court examined a case involving default bail and held
that the High Court had committed a serious error by directing the appellant to
deposit ₹8,00,000 as a condition for release. The Court emphasized that the
considerations for granting default bail under Section 167(2) of Cr.P.C. differ
from those applicable to regular bail under Section 437 of Cr.P.C. Furthermore,
another condition requiring the appellant to report daily at the police station
until further orders was also found to be unjustified and was accordingly
modified. The Supreme Court has also commented on the imposition of
16 of 20
Neutral Citation No:=2025:PHHC:032260
unreasonable conditions in anticipatory bail. In Sumit Mehta Vs. State (NCT
of Delhi), (2013) 15 SCC 570, the Court reiterated the principle that an
accused is presumed innocent until proven guilty and, as such, is entitled to
fundamental rights, including personal liberty under Article 21 of the
Constitution. The Court clarified that the term "any condition" in the law does
not grant unlimited discretion to impose arbitrary conditions. Instead,
conditions must be reasonable, appropriate to the circumstances, and effective
in a practical sense, without rendering the grant of bail meaningless.
19. The facts of the present case paint a distressing picture of the
criminal justice system's failure to uphold the rights of undertrial prisoners.
The petitioner, despite being entitled to default bail continued to languish in
custody due to the imposition of excessively stringent conditions. However,
what makes this case even more egregious is the fact that the petitioner was not
released under Section 479 of BNSS despite having undergone detention
exceeding one-third of the maximum prescribed sentence for the alleged
offence. Having already spent over four years in custody, his right to release
under Section 479 of BNSS was not merely an entitlement but a legal mandate.
Despite this, the failure of the authorities to ensure his release underscores a
fundamental violation of due process. The duty cast upon the Superintendent of
Jail under sub-section (3) of Section 479 of BNSS to inform the Court of an
undertrial's eligibility for bail was either overlooked or ignored, resulting in the
continued incarceration of the petitioner in clear contravention of the law.
17 of 20
Neutral Citation No:=2025:PHHC:032260
20. The Hon'ble Supreme Court, in In Re-Inhuman Conditions in
1382 Prisons (supra), unequivocally held that Section 479 of BNSS applies
retrospectively to all undertrial prisoners, irrespective of whether their case
was registered before the enactment of the BNSS. It directed the immediate
implementation of this provision to address the crisis of overcrowding in jails.
Yet, the petitioner was deprived of this relief, showcasing a systemic lapse in
adhering to judicial directions.
21. The failure to release the petitioner under Section 479 BNSS,
when his right to default bail itself was an indefeasible statutory and
constitutional right, reflects a glaring miscarriage of justice. The right to liberty
cannot be rendered illusory by administrative inaction or judicial indifference.
The present case highlights the urgent need for strict adherence to statutory
safeguards meant to prevent arbitrary detention, lest the criminal justice system
becomes complicit in perpetuating prolonged and unjustified incarceration.
CONCLUSION
22. Correspondingly, the above cited legal query is answered in the
below mentioned terms:
The imposition of stringent financial and other onerous conditions
while granting default bail under Section 167(2) of Cr.P.C. or
under Section 187(3) of BNSS, and bail under Section 479 of
BNSS is impermissible. The concerned Court must first ascertain
from the accused whether he is prepared to furnish bail, and upon
an affirmative response, grant default bail on reasonable
18 of 20
Neutral Citation No:=2025:PHHC:032260
conditions. The Court granting bail should, as far as possible,
should endeavour to release the accused on personal bond in such
cases. It is imperative that the test of reasonableness be satisfied
at the time of passing the bail order. Bail cannot be rendered
illusory by imposing financial constraints as that effectively
amounts to continued incarceration, which is in clear violation of
statutory and constitutional safeguards.
23. In view of the discussion above, this Court has no hesitation in
holding that the conditions imposed by learned trial Court for grant of default
bail do not meet the objective standards of reason and justice. In view of the
discussion above, the present petition is allowed. Accordingly, petitioner
Pawan Kumar is ordered to be released on bail during the pendency of the trial,
on his furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand
only) with one surety in the like amount.
24. Nothing observed hereinabove shall be construed to be expression
of an opinion by this Court on merits of the case. Learned Court below is
directed to proceed with the matter on its own merits, lest it may prejudice the
trial.
25. Before parting with this order, this Court would be remiss, if it
does not address the serious issue of non-compliance of the directions issued in
In Re Policy Strategy for Grant of Bail (supra). Let the matter be put up
before Hon'ble the Chief Justice for taking appropriate action as he may deem
necessary in order to ensure scrupulous compliance thereof.
19 of 20
Neutral Citation No:=2025:PHHC:032260
26. All the pending miscellaneous application(s), if any, shall stand
disposed of.
[ HARPREET SINGH BRAR ]
05.03.2025 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
20 of 20
