The Punjab and Haryana High Court discussed the scope of granting bail by the Chief Judicial Magistrate or Magistrate in bailable or non-bailable offences and in case of compromise between parties.

The Bench of Justice Anoop Chitkara observed, “When the accused is in custody for any non-bailable offense, and as per the Chief Judicial Magistrate/Magistrate, there are no reasonable grounds to believe they have committed the crime, even though further inquiry is warranted, the Chief Judicial Magistrate/Magistrate must grant bail under Section 480(2) of the BNSS.”

Advocate S.S. Gill represented the Petitioner, while Advocates Navreet Kaur Barnala and Manish Bansal represented the Respondents.

Case Brief

A Petitioner was charged under Sections 331(4), 305, 112, 317(2), 238 BNS, 2023 and sought regular bail.

Earlier, the Petitioner's bail application was denied by the Additional Session Judge on the grounds of recidivism, disregarding the sketchy evidence and the long, unexplained delay in the registration of the FIR, and overlooking the presumption of innocence. However, later he was granted interim bail.

When the Petitioner applied for regular bail before the Sessions Court, the same was dismissed.

Court’s Observation

The High Court expressed that the Petitioner had to spend more than three months and twenty days in jail for stealing a bicycle and a pair of shoes, and the incarceration was much longer if he had pleaded guilty, based on one-sided, unproven allegations, all for the sake of early release because of the failure of system.

Further, the Court expressed concern regarding the fear that plagues the Magistrates from granting bail. “Perhaps it is the lack of assurance and the requisite support from the higher judiciary that instils a lack of confidence and has created a tendency among Magistrates not to grant bail even in cases that are triable before them and are not heinous”, the Court added.

The Court was of the opinion that while considering criminal history, it shall include cases where the accused was convicted, as well as suspended sentences and all pending First Information Reports, in which the bail petitioner was arraigned as an accused. However, the cases which resulted in acquittal or discharge, or when Courts have quashed the FIRs, dismissed the prosecution, or the prosecution was withdrawn, or a closure report has been filed, such cases should not be included.

The High Court observed, “In conclusion, even if the accused is a habitual offender, such recidivism would not affect the powers of the Chief Judicial Magistrate or Judicial Magistrate to grant bail. However, criminal history will be an additional factor for consideration before granting bail.”

The High Court discussed the scope of Magistrate’s power to grant bail, among others, based on Sections 478 and 480 and judicial precedents:

1. The bail must be granted even by the Magistrate when the accused was in custody for a non-bailable offense and the Magistrate has no reasonable grounds to believe they have committed the crime, even though further inquiry is warranted.

2. In the cases where an accused is in judicial custody and the bail has either been rejected by the Sessions Court or High Court or pending before them, and in-between, the investigation either absolves such an accused, proposes to file a closure report, or reduces the offences to bailable one, then the concerned Magistrate has jurisdiction and is competent and must grant bail under Section 480 BNSS, or release such an accused under Section 478 BNSS, irrespective of earlier rejection of bail by higher court(s) or its pendency in the High Court or/and Sessions Court.

3. In cases triable by the Chief Judicial Magistrate/Magistrate, when the main or similarly placed accused has been granted bail by the Higher Courts, then the Chief Judicial Magistrate/Magistrate has jurisdiction and was competent to grant similar bail on parity to all other similarly placed accused or with a lesser role.

4. Whenever all the victims do not oppose bail and rather state before the Chief Judicial Magistrate/Magistrate in the cases triable by them that they have no objection to bail, then, after taking affidavits from such victim(s), bail should generally be granted.

5. In any case arising out of any FIR triable by Chief Judicial Magistrate/Magistrate, all the victims compromise the matter which is supported by the victim’s affidavit(s), irrespective of whether the offences were compoundable or not, the said compromise was still relevant for bail, and in all such cases, where the accused was in custody, the bail should be granted.

Accordingly, the Bail Application was allowed.

Cause Title: Suraj Kumar V. State of Punjab

Appearance:

Petitioner: Advocate S.S Gill

Respondent: Advocates Navreet Kaur Barnala, Manish Bansal, Navjit Singh

Click here to read/download Judgment


Punjab and Haryana High CourtJustice Anoop Chitkara

Pridhi Chopra

    Pridhi Chopra was earlier practicing as an Advocate in Delhi. She pursued B.A. (H) English from Gargi College, University of Delhi, and subsequently pursued a degree in Law.