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Judgment
SURYA PARTAP SINGH, J. (Oral):
This petition for bail is the first petition, filed by the petitioner under Section 483 of ‘the Bharatiya Nagarik Suraksha Sanhita, 2023’. It has been filed with regard to a case arising out of FIR No.02 dated 24.03.2025, Police Station Cyber Crime, Gurdaspur, for the commission of offence punishable under Sections 111(2), 317(2), 318(4), 319(2), 336(3), 338, 340(2) and 3(5) of Bharatiya Nyaya Sanhita, 2023, hereinafter being referred to as ‘BNS’ and Sections 66 & 66-D of Information & Technology Act.
The abovementioned FIR came into being at the instance of ‘Gagandeep Singh’, hereinafter being referred to as ‘complainant’ only. It was stated by the complainant that on the pretext of investment in the stock market, he was duped through a mobile application, namely ‘DSEL Pro App’, and that in the abovementioned process, he lost Rs.1.88 crores. While claiming that he has been subjected to cheating, an action was sought by the complainant.
It is the case of the prosecution that in view of abovementioned statement, formal FIR of this case was lodged and the investigation taken up. According to prosecution, during the course of investigation, it was found that Rs.80 lacs transferred by the complainant, landed into the account of ‘Sandeep Jai Singh’, the co-accused. As per prosecution, when ‘Sandeep Jai Singh’, was arrested and interrogated, he suffered a disclosure statement, wherein he revealed that ‘Atish’ (the petitioner herein) along with another accused (‘Jatinder Kumar @ Jeetu’) was involved in the commission of offence.
Notice of motion.
Since advance notice has already been served upon the State, Mr. I.P.S. Sabharwal, DAG, Punjab, has appeared on behalf of respondent-State. Hence, service of notice upon the State is hereby dispensed with. He has filed custody certificate of the petitioner. The same be taken on record. No formal reply has been filed by the State. However, the learned State counsel has orally opposed the present petition.
Heard.
It has been contended by learned counsel for the petitioner that the petitioner is innocent, and that there is no legally admissible evidence against the petitioner, whatsoever. It has also been contended by learned counsel for the petitioner that the petitioner has clean antecedents, and that he is already in custody for a period of more than six months and seven days. As per learned counsel for the petitioner, the investigation in this case is already complete and therefore, nothing has been left to be recovered from the possession of petitioner.
The learned State Counsel has controverted the abovementioned arguments. According to learned State Counsel, the petitioner is part of the group involved in defrauding the genuine investors, and that as per disclosure statement suffered by ‘Sandeep Jai Singh’, the documents pertaining to bank account of ‘Sandeep Jai Singh’ were used by ‘Atish’ (petitioner herein) and his co-accused. The learned State counsel has further contended that the abovementioned account was used as a mule account. As per learned State Counsel, being an offence pertaining to cyber fraud, the petitioner is not entitled to the benefit of bail.
The record has been perused carefully.
A perusal of record shows that following are the relevant factors which are required to be taken into consideration for a decision in the present petition:-
that the petitioner is already in custody for a period of more than six months and seven days;
ii) that the petitioner has clean antecedents;
iii) that the offence is triable by the Court of Judicial Magistrate;
iv) that although there are allegations with regard to commission of offence punishable under Sections 336(3), 338 and 340(2) of BNS, yet the abovementioned allegations are qua co-accused ‘Sandeep Jai Singh’, who on the basis of forged documents, opened the bank account. There is no such allegation against the petitioner. Thus, the maximum punishment, which can be awarded to the petitioner, in the instant case, is imprisonment up to seven years;
that the only evidence, collected by the investigating agency against the petitioner is the disclosure statements of co-accused (of the petitioner), and there is a question mark with regard to admissibility of above-mentioned statement in evidence and its credibility, as the same was recorded when the co-accused were in police custody. Since pursuant to above-mentioned disclosure statements recovery of any incriminating material or discovery of fact has not taken place, prima facie the abovementioned statements appears to be hit by Section-23 of Bharatiya Sakshya Adhiniyam;
vi) that there is nothing on record to show that any part of proceeds of crime was received by the petitioner;
vii) that investigation in this case is already complete and therefore, nothing has been left to be recovered from the possession of petitioner;
viii) that no incriminating material, whatsoever, has been recovered from the possession of petitioner, during the course of investigation;
ix) that trial is not likely to be concluded in near future;
that detention of petitioner in judicial lock-up is not likely to serve any purpose;
xi) that there is nothing on record to show that if released on bail, the petitioner may tamper with the evidence or influence the witnesses;
xii) that there is nothing on record to show that if released on bail, the petitioner will not co-operate/participate in the trial.
In the present case, the principles of law laid down by the Hon’ble Supreme Court of India in the case of ‘Dataram versus State of Uttar Pradesh and another’, (2018) 3 SCC 22, are relevant, wherein it has been observed that “a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case”.
The principles laid down by the Hon’ble the Supreme Court of India in the case of ‘Satender Kumar Antil v. Central Bureau of Investigation’ (2022) 10 SCC 51 are also relevant in this case. In the abovementioned case, it has been observed that “the rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice”.
Recently, in the case of ‘Tapas Kumar Palit Vs. State of Chhattisgarh’, 2025 SCC Online SC 322, the Hon’ble Supreme Court of India has observed that “if an accused is to get a final verdict after incarceration of six to seven years in jail as an undertrial prisoner, then, definitely, it could be said that his right to have a speedy trial under Article 21 of the Constitution has been infringed”. It has also been observed by the Hon’ble Supreme Court of India in the abovementioned case that “delays are bad for the accused and extremely bad for the victims, for Indian society and for the credibility of our justice system, which is valued. Judges are the masters of their Courtrooms and the Criminal Procedure Code provides many tools for the Judges to use in order to ensure that cases proceed efficiently”.
To elucidate further, this Court is conscious of the basic and fundamental principle of law that right to speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of the Constitution of India. This constitutional right cannot be denied to an undertrial prisoner, as mandated by Hon’ble Apex court in ‘Balwinder Singh versus State of Punjab and another’ 2024 SCC Online SC 4354.
Taking into consideration the cumulative effect of all the aforesaid factors, it is hereby held that the petitioner is entitled to the concession of bail, and that the present petition deserves to be allowed.
Accordingly, without commenting anything on the merits of the case, the present petition is hereby allowed. The petitioner is hereby ordered to be released on bail on furnishing personal bond and surety bond(s) to the satisfaction of learned trial Court. However, the abovesaid benefit shall be subject to following conditions:-
that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court or to any other authority;
ii) that the petitioner shall at the time of execution of bond, furnish the address to the Court concerned and shall notify the change in address to the trial Court, till the final decision of the trial; and
iii) that the petitioner shall not leave India without prior permission of trial Court.
It is, however, made clear that any observation made hereinabove is only for the purpose of deciding the present petition and the same shall have no bearing on the merits of the case.