[Cites 8, Cited by 0]
Punjab-Haryana High Court
Toshif @ Toshi vs State Of Haryana on 15 January, 2026
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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Toshif @ Toshi
Petitioner
....Petitioner
versus
State of Haryana
....Respondent
Date of decision: January 15,
15, 2026
2026
Date of Uploading: January 15,
15, 2026
CORAM: HON'BLE MR. JUSTICE SUMEET GOEL
Present:-
Present: Mr. Farukh Abdullah, Advocate for the petitioner.
Mr. Gurmeet Singh, AAG Haryana.
Mr. Sanyam Khetarpal, Advocate and
Ms. Kajal Chauhan,, Advocate for the complainant.
*****
SUMEET GOEL,
GOEL, J. (ORAL)
Present second petition has been filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ''BNSS') read with
Section 528 of the BNSS, for grant of regular bail to the petitioner in case
bearing FIR No.471
No. dated 04.12.2024, registered for the offences punishable
under Sections 191(3), 190, 126(2), 140(3) & 109(1) of the BNS, 2023 and
Sections 25/ 54/ 59 of the Arms Act, 1959 (for short 'Arms Act'), registered at
Police Station Sadar Nuh, District Nuh.
2. The gravamen of the allegations against the petitioner is that on
03.12.2024,, at about 8:25 PM,, the police received telephonic information
regarding the kidnapping/abduction of a person from Village Bajadka
Bajadka.. Upon
the police team reaching Village Bajadka, further information was received
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telephonically from SHKM, Nalhar, regarding the admission of an injured
person with a gunshot wound.
Subsequently, on 04.12.2024, at about 2:00 AM, a complaint was
lodged with the police by the complainant, namely, Waseem Akram against
four named accused persons (including the petitioner herein) and 3-4 unknown
persons. In the complaint, it was alleged that on 03.12.2024 at about 8:00 PM,
the complainant and his brother, namely, Anees were returning to their house
on motorcycles from a gym. When they reached near Bajadka Turn on Palwal
Road, the accused Nepali and Ramjan, who were already present at the spot,
allegedly rammed a black Scorpio vehicle into the motorcycle of Anees and
forcibly abducted him in the said vehicle towards Nuh. The complainant
immediately informed his elder brother telephonically, who in turn informed
the police by dialing 112. Subsequently, it came to the knowledge of the
complainant that the accused persons shot his brother and thereafter threw him
on the road.
3. Learned counsel for the petitioner has iterated that the petitioner is
in custody since 28.12.2024. Learned counsel has further iterated that the
petitioner has been falsely implicated into the FIR in question. Learned counsel
has iterated that assuming arguendo, the prosecution version is taken to be
correct, the fire shot upon the injured-Anees is not attributed to the petitioner,
but to the co-accused, namely, Warish, who is in custody. Learned counsel has
further argued that prime prosecution witnesses are repeatedly not turning up to
have their testimony recorded and bailable/ non-bailable warrants have been
issued against them, which factum is clearly decipherable from the zimni orders
dated 02.09.2025, 04.10.2025 & 29.11.2025 passed by the learned trial Court.
Learned counsel has urged that the petitioner has suffered incarceration for
more than 01 year. Thus, regular bail is prayed for.
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4. Learned State counsel has opposed the present petition by arguing
that there are direct/ serious allegations against the petitioner and, thus, the
petitioner does not deserve the concession of the regular bail. Learned State
counsel seeks to place on record the custody certificate dated 13.01.2026, in the
Court today, which is taken on record.
4.1. Learned counsel for the complainant has filed reply dated
14.01.2026 in the Court today, which is taken on record. Raising submissions
in tandem with the said reply, learned counsel for the complainant has
vehemently opposed the grant of regular bail to the petitioner that there are
direct/ serious allegations against the petitioner. Learned counsel has further
argued that in case the petitioner is released on regular bail, there is all the
likelihood of the petitioner absconding the process of justice and also
interfering with the prosecution evidence. With these submissions, dismissal of
present plea is entreated for.
5. I have heard counsel for the rival parties and have gone through
the available records of the case.
6. The petitioner was arrested on 28.12.2024, whereinafter, the
investigation was carried out and the challan has been presented on 01.03.2025.
Total 16 prosecution witnesses have been cited, out of which, only 02 have
been examined till date. The rival contentions raised at Bar give rise to
debatable issues, which shall be ratiocinated upon during the course of trial.
This Court does not deem it appropriate to delve deep into these rival
contentions, at this stage, lest it may prejudice the trial. Nothing tangible has
been brought forward to indicate the likelihood of the petitioner absconding
from the process of justice or interfering with the prosecution evidence.
6.1. There is no gainsaying that out of total 16 cited prosecution
witnesses, only 02 have been examined till date. A perusal of the zimni orders
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passed by the learned trial Court, brought forth before this Court by the
petitioner, reflects that the trial is procrastinating and folly thereof is not
attributable to the petitioner.
6.2. At this juncture, it would be apposite to refer herein a judgment of
the Hon'ble Supreme Court in Javed Gulam Nabi Shaikh vs. State of
Maharashtra and anothers, 2024(3) RCR (Criminal) 494, which reads thus:
"18. Criminals are not born out but made. The human potential in
everyone is good and so, never write off any criminal as beyond
redemption. This humanist fundamental is often missed when dealing with
delinquents, juvenile and adult. Indeed, every saint has a past and every
sinner a future. When a crime is committed, a variety of factors is
responsible for making the offender commit the crime. Those factors may
be social and economic, may be, the result of value erosion or parental
neglect; may be, because of the stress of circumstances, or the
manifestation of temptations in a milieu of affluence contrasted with
indigence or other privations.
19. If the State or any prosecuting agency including the court
concerned has no wherewithal to provide or protect the fundamental right
of an accused to have a speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting agency should not
oppose the plea for bail on the ground that the crime committed is serious.
Article 21 of the Constitution applies irrespective of the nature of the
crime.
20. We may hasten to add that the petitioner is still an accused; not a
convict. The over-arching postulate of criminal jurisprudence that
an accused is presumed to be innocent until proven guilty cannot be
brushed aside lightly, howsoever stringent the penal law may be.
21. We are convinced that the manner in which the prosecuting agency
as well as the Court have proceeded, the right of the accused to have a
speedy trial could be said to have been infringed thereby violating Article
21 of the Constitution."
6.3. Indubitably, the present petition is the second attempt by the
petitioner to secure regular bail. The last bail plea was dismissed as
withdrawn on 25.07.2025, when the following order was passed:
"Faced with the situation that the FIR-complainant and victim are
yet to be examined as prosecution witnesses, learned counsel appearing
for the petitioner seeks to withdraw the present petition at this stage.
Ordered accordingly."
A perusal of the zimni orders dated 02.09.2025, 04.10.2025 &
29.11.2025 passed by the trial Court reflects that the prime prosecution
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witnesses are deliberately trying to avoid appearing as prosecution witnesses.
The trial Court was constrained to issue bailable/ non-bailable warrants against
them and now even issued warrants of arrest. Keeping in view the factual
milieu of the case in hand; especially factum of extended incarceration of the
petitioner and the procrastination of trial, folly whereof is not attributable to the
petitioner, this Court is inclined to affirmatively consider the instant plea for
bail. A profitable reference, in this regard, can be made to a judgment of this
CRA--S-2332
Court passed in CRA 2332--2023 titled as Rafiq Khan versus State of
Haryana
Ha ryana and another; relevant whereof reads as under:
"10. As an epilogue to the above discussion, the following
principles emerge:
I Second/successive regular bail petition(s) filed is
maintainable in law & hence such petition ought not to be rejected
solely on the ground of maintainability thereof.
II. Such second/successive regular bail petition(s) is
maintainable whether earlier petition was dismissed as
withdrawn/dismissed as not pressed/dismissed for non-prosecution
or earlier petition was dismissed on merits.
III For the second/successive regular bail petition(s) to
succeed, the petitioner/applicant shall be essentially/pertinently
required to show substantial change in circumstances and showing
of a mere superficial or ostensible change would not suffice. The
metaphoric expression of seeking second/successive bail plea(s)
ought not be abstracted into literal iterations of petition(s) without
substantial, effective and consequential change in circumstances.
IV No exhaustive guidelines can possibly be laid down as to
what would constitute substantial change in circumstances as every
case has its own unique facts/circumstance. Making such an
attempt is nothing but an utopian endeavour. Ergo, this issue is
best left to the judicial wisdom and discretion of the Court dealing
with such second/successive regular bail petition(s).
V In case a Court chooses to grant second/successive regular
bail petition(s), cogent and lucid reasons are pertinently required to
be recorded for granting such plea despite such a plea being
second/successive petition(s). In other words, the cause for a Court
having successfully countenanced/entertained such
second/successive petition(s) ought to be readily and clearly
decipherable from the said order passed."
6.4. As per custody certificate dated 13.01.2026 filed by learned State
counsel, the petitioner has already suffered incarceration for a period of 01 year
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and 15 days. Further, as per the said custody certificate, the petitioner is stated
to be involved in other FIR(s). However, this factum cannot be a ground
sufficient by itself, to decline the concession of regular bail to the petitioner in
the FIR in question when a case is made out for grant of regular bail qua the
FIR in question by ratiocinating upon the facts/circumstances of the said FIR.
Reliance in this regard can be placed upon the judgment of the Hon'ble
Supreme Court in Maulana Mohd. Amir Rashadi v. State of U.P. and another,
2012 (1) RCR (Criminal) 586; a Division Bench judgment of the Hon'ble
Calcutta High Court in case of Sridhar Das v. State, 1998 (2) RCR (Criminal)
477 & judgments of this Court in CRM-M No.38822-2022 titled as Akhilesh
Singh v. State of Haryana, decided on 29.11.2021, and Balraj v. State of
Haryana,, 1998 (3) RCR (Criminal) 191.
Haryana
Suffice to say, further detention of the petitioner as an undertrial is
not warranted in the facts and circumstances of the case.
7. In view of above, the present petition is allowed. Petitioner is
ordered to be released on regular bail on his furnishing bail/surety bonds to the
satisfaction of the Ld. concerned CJM/Duty Magistrate. However, in addition
to conditions that may be imposed by the concerned CJM/Duty Magistrate, the
petitioner shall remain bound by the following conditions:
(i) The petitioner shall not mis-use the liberty granted.
(ii) The petitioner shall not tamper with any evidence, oral
or documentary, during the trial.
(iii) The petitioner shall not absent himself on any date before
the trial.
(iv) The petitioner shall not commit any offence while on
bail.
(v) The petitioner shall deposit his passport, if any, with the
trial Court.
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(vi) The petitioner shall give his cellphone number to the
Investigating Officer/SHO of concerned Police Station and
shall not change his cell-phone number without prior
permission of the trial Court/Illaqa Magistrate.
(vii) The petitioner shall not in any manner try to delay the trial.
8. In case of breach of any of the aforesaid conditions and those
which may be imposed by concerned CJM/Duty Magistrate as directed
hereinabove or upon showing any other sufficient cause, the State/complainant
shall be at liberty to move cancellation of bail of the petitioner.
9. Ordered accordingly.
10. Nothing said hereinabove shall be construed as an expression of
opinion on the merits of the case.
11. Since the main case has been decided, pending miscellaneous
application, if any, shall also stands disposed off.
(SUMEET GOEL)
GOEL)
JUDGE
January 15,
15, 2026
mahavir
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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