Justice Anoop Chitkara, Punjab & Haryana High Court
Punjab & Haryana High Court: Custody Of Prisoner Released On Bail Beyond Period Necessary To Complete Procedures Would Be Illegal
|The accused, incarcerated in an FIR registered under the provisions of the IPC & the Foreigners Act, had approached the Punjab and Haryana High Court seeking regular bail.
While granting the relief of bail to an undocumented female migrant in a case of cheating and forgery, the Punjab and Haryana High Court has held that once a prisoner is released on bail, any custody of the said prisoner beyond the period necessary to complete the procedures for a formal release from prison, would be illegal, if delayed on flimsy grounds, systemic mediocrity, or bureaucratic red tape.
The Petitioner, incarcerated in an FIR registered under Sections 420, 467, 468, 471 IPC and Section 14-A of the Foreigners Act 1946, approached the High Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking regular bail.
Referring to the judgment of the Apex Court in Frank Vitus v. Narcotics Control Bureau (2025), the Single Bench of Justice Anoop Chitkara stated, “Without intending to dilute any statutory procedures or any of the directions of the Hon’ble Supreme Court mentioned above, it has also to be synergized that once a prisoner is released on bail, any custody of the said prisoner beyond the period necessary to complete the procedures for a formal release from prison, would be illegal, if delayed on flimsy grounds, systemic mediocrity, or bureaucratic red tape”, it explained.
Advocate N.S. Sodhi represented the Petitioner, while Assistant Advocate General Atul Gaur represented the Respondent.
Factual Background
The criminal case was registered based on a complaint made by Santosh Sharma with the allegations that her son (co-accused) was induced by the petitioner, who is a resident of Bangladesh. Her son brought the petitioner to the complainant’s house and disclosed the relationship with the petitioner, but it was not acceptable to the complainant. It was alleged that the co-accused (complainant’s son) had given cash and gold jewellery of the complainant to the petitioner, who had misappropriated the same. It was alleged that the petitioner is a foreign National and residing in India without legal documents. It was further alleged that she had prepared her Aadhaar Card, Voter Card, and PAN card based on fake documents and changed her name to Shikha Gaur.
Reasoning
The Bench found that the petitioner had been in custody for 6 months & 14 days. “Given the penal provisions invoked vis-à-vis pre-trial custody, coupled with the prima facie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justification for further pre-trial incarceration at this stage”, the Bench mentioned.
The Bench also ordered, “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, with or without sureties, with maximum bond amount not to exceed INR 10,000/.”
“Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, the surety is capable of producing the accused. However, instead of surety, the petitioner may provide a fixed deposit of INR 10,000/-, with a clause that the interest shall not be accumulated in FD, either drawn from a State-owned bank or any bank listed on the National Stock Exchange and/or Bombay Stock Exchange, in favour of the “Chief Judicial Magistrate” of the concerned Sessions Division; or a fixed deposit made in the name of the petitioner, with similar terms and with endorsement from the banker stating that the FD shall not be encumbered or redeemed without the permission of the concerned trial Court, or until the surety bond has been discharged”, it further directed.
In light of the fact that the investigation conducted so far indicated that the petitioner might not be a citizen of India, and as such might not be able to procure sureties, or amount to furnish personal bonds, or amount in lieu of surety(s), the Bench held that in the event of non-furnishing of the bonds, the petitioner couldnot be kept in jail for an indefinite period.
The Bench further noted that Section 479 of BNSS provides for bail, if after filing of the police report under section 193 BNSS, during the pendency of the trial, except when punishable for death or life, has 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 and one third in case of the first time offenders, and the provision also applies to various other situations.
Thus, considering the fundamental right guaranteed in Article 21 of the Constitution, the nature of allegations, sentence provided, pre-trial custody, and the fact that the petitioner being allegedly an undocumented female migrant is not stated to be under custody in any other FIR/Case, the Bench clarified, “...if within seven days of the availability of this order, the petitioner is unable to provide any sureties or surety amount, or bond amount, in such situation, by importing the legislative intent of proviso and explanation to S. 478(1) of BNSS, it shall be permissible for the concerned Magistrate/Court to release the petitioner on her personal bonds.”
Cause Title: Farida Praveen alias Shikha Gaur v. State of Haryana (Neutral Citation: 2025:PHHC:109559)