Test Of ‘Necessity’ Must Be Applied By Courts To Grant Or Deny Bail: Delhi High Court Enumerates Principles Regarding Bail Of Undertrial

The High Court was considering a petition filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) by the petitioner seeking regular bail in a case registered under sections 406,420,467,468, 471, 120-B, 34 of the Indian Penal Code, 1860 (IPC).

The Single Bench of Justice Anup Jairam Bhambhani said, “Bail may be denied if the court is not satisfied that an accused would remain available to face trial; or the court is of the view that he would intimidate witnesses or tamper with evidence or otherwise interfere in the course of justice. The ‘operative’ test that a court must apply for grant or denial of bail is the test of ‘necessity’, namely to answer why it is necessary to detain an undertrial in custody.”

Advocate Tanveer Ahmed Mir represented the Petitioner while APP Tarang Srivastva represented the Respondent-State.

Factual Background

The matter at hand arose from an alleged criminal conspiracy between a former employee of the Customs Department; a data entry operator and a Senior Manager of the Punjab National Bank. It was alleged that the criminal conspiracy was hatched with the intention of cheating the Customs Department of unclaimed and unaccounted amounts lying deposited in their bank accounts towards refund of customs duty to importers.

It was alleged that the person used to forge various official documents, including scrolls, forwarding letters and cheques, using the official stamps and signatures of customs officials.These forged documents would in-turn be used to show bogus entities as beneficiaries who were eligible for customs duty refund, in order to misappropriate government funds.

Reasoning

The Bench noted that the role alleged against the petitioner was that he acted as a conduit for the other accused persons to channel and siphon-off funds lying unclaimed with the Customs Department, which monies were routed through the certain bank accounts. There was no allegation that the petitioner himself was involved in forging any scroll or cheque or other document relating to the Customs Department.

There was also no material on record to prima-facie show that the petitioner was aware either of the ‘nature’ of the money that was being routed through the bank accounts or of the scale or quantum of the offences allegedly committed by the other accused persons.

Noting that the petitioner had already suffered judicial custody for about 13 months, the Bench said, “However, regardless of the maximum punishment prescribed for the offences alleged against the petitioner, the court must never lose sight of the fact that, as of now, the petitioner is only an accused pending trial and has not been held guilty for any offences as of date. As argued on behalf of the petitioner, he cannot be detained in custody endlessly awaiting completion of trial.”

The Bench further highlighted the following principles of bail jurisprudence laid-down by the Supreme Court:

• An undertrial is required to post bail in order to secure his presence at the trial, for which purpose an undertrial is handedover from the custody of the court to the custody of an appropriate surety.
• The ‘operative’ test that a court must apply for grant or denial of bail is the test of ‘necessity’, namely to answer why it is necessary to detain an undertrial in custody.
• The purpose of pre-trial custody is neither ‘punitive’ nor ‘preventative’, meaning that an accused cannot be held in custody only with the intention of punishing him for an offence which is yet to be proved against him; nor is bail to be denied on the presumption that he would commit an offence if enlarged from custody (except where additional twin conditions prescribed by the Legislature under certain special statutes).
• Pertinently, bail must not be denied as a mark of disapproval of the alleged conduct of an accused; nor should it be denied for giving to an accused the taste of imprisonment as a lesson.
• It would therefore be sacrilege for a court to disregard the presumption of innocence which enures to the benefit of an accused, while on the other hand failing to ensure speedy trial. The right to speedy trial is the flip-side of the presumption of innocence.
• It is crucial for a court to recognise and be conscious of the right of an accused to speedy trial; and to prevent that right from being defeated, rather than wake-up much too late and lament that such right has been defeated.

Coming to the facts of the case, the Bench noticed that the chargesheet comprised about 10,000 pages and was filed over 1 year ago citing 49 prosecution witnesses but charges are yet to be framed. “It is therefore obvious that the trial will take a long time to conclude. In the meantime however, the petitioner has already suffered more than 01 year of judicial custody and has been exposed to ‘prisonisation’; and there appears to be no cogent basis to satisfy the test of ‘necessity’ as discussed above for his continued detention”, it said.

Thus, the Bench admitted the petitioner to regular bail and also asked him to furnish a personal bond in the sum of Rs.5 lakh with 2 sureties in the like amount from family members.

Cause Title: Amit Agrawal v. State of Nct Delhi & Ors (Neutral Citation: 2025:DHC:3108)

Appearance:

Petitioner:Senior Advocate Tanveer Ahmed Mir, Advocates Ariana D. Ahluwalia

Respondent: APP Tarang Srivastva, Senior Standing Counsel Satish Aggarwala, Advocate for Customs Gagan Vaswani, Inspector Kuldeep Bhoriya

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