It is worth paying singular attention that none other than one of the most prestigious High Courts in India that is the Delhi High Court itself in a most learned, landmark, logical, laudable and latest judgment titled Suleman Samad vs State of NCT of Delhi in Bail Appln. 4266/2024 and cited in Neutral Citation No.: 2025:DHC:503 that was pronounced as recently as on 29.01.2025 has minced absolutely just no words to hold in no uncertain terms that the Trial Courts must promptly pass orders and must not mechanically adjourn bail applications moved in cases covered by Section 479 of Bharatiya Nagarik Suraksha Sanhita, 2023, where the undertrial prisoners have already undergone one half of the maximum imprisonment. We need to note that the Delhi High Court was dealing with a bail plea that had been moved by a 60-year-old man accused in a POCSO case. The FIR was lodged on the basis of the complaint that had been filed by the victim’s mother. It thus merits just no reiteration that the Trial Courts must pay heed to what the Delhi High Court has held in this leading case so explicitly, elegantly, eloquently and effectively in this leading case and act accordingly!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball rolling by first and foremost putting forth in para 1 that:
The present bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [hereafter ‘BNSS’] has been filed on behalf of the applicant, seeking grant of regular bail in case arising out of FIR No. 0103/2023, registered at Police Station Vasant Vihar, Delhi for offences punishable under Sections 354/354A of the Indian Penal Code, 1860 [hereafter ‘IPC’] and Section 8 of the Prevention of Children from Sexual Offences Act, 2012 [hereafter ‘POCSO Act’].
To put things in perspective, the Bench while dwelling on the facts of the case envisages in para 2 that:
Briefly stated, the facts of the case as per prosecution are that on 26.03.2023, the accused/applicant herein had visited the house of the victim when her parents were away for work, at 06:00 pm, and on finding the victim alone in the house, he had put his hand inside her T-shirt and had inappropriately pressed her chest. It is also alleged that thereafter, the accused had inserted his hand inside the pants of the victim, touched her genitals and made certain inappropriate comments. The victim had revealed the incident to her neighbour, who had made a call to the mother of the victim and asked her to rush back home. On the basis of a complaint lodged by the mother of the victim, the present FIR was registered. During investigation, counselling of the victim was conducted by CIC Counsellor, and her medical examination was conducted at Safdarjung Hospital, Delhi.
The statement of the victim was also recorded under Section 164 of the Code of Criminal Procedure, 1973 (hereafter ‘Cr.P.C.’). The present accused/applicant was arrested on 27.03.2023 and since then, he has been in judicial custody. After the conclusion of investigation, chargesheet and supplementary chargesheet were filed on 24.05.2023 and 21.09.2023 respectively, and charges were framed against the present applicant. The first and second bail applications filed by the applicant before the learned Trial Court were dismissed vide orders dated 09.05.2024 and 20.10.2024 respectively.
Notably, the Bench notes in para 7 that:
In the present case, this Court notes that the mother of the victim had appeared before the learned Trial Court on 09.05.2024 and not opposed the bail application of the applicant, however, the said application was dismissed inter alia on the ground that it appeared that the accused may have threatened the victim and her mother. However, the mother of the victim had appeared before this Court also, on 20.12.2024, and given a statement that she did not wish to contest the present case. The Predecessor Bench also noted the submission of the learned counsel for the applicant that trial was not proceeding since the victim was not appearing for her examination before the learned Trial Court.
Needless to say, the Bench then states in para 8 that:
Thus, it is an admitted fact that the victim in this case has not been examined yet, and the mother of the victim is not willing to appear before the learned Trial Court, as she does not wish to pursue the present case/FIR.
Quite significantly, the Bench propounds in para 9 stating that:
In this background, the learned counsel for the applicant had drawn the attention of this Court to Section 479 of BNSS, which inter alia provides that in case of a first-time offender being incarcerated (not for an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under law), he shall be released if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence. Relevant portion of Section 479 of BNSS is set out below:
- Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) 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:
Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to onethird of the maximum period of imprisonment specified for such offence under that law:
Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond:
Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of…
Do note, the Bench notes in para 11 that:
This Court notes that on 05.12.2024 itself, a letter – sent by the Jail authorities in terms of Section 479 of BNSS – had been received by the learned Trial Court, informing the Court that the present applicant had already undergone one-third of the maximum sentence that can be awarded to him upon conviction. In the order dated 05.12.2024, the learned Trial Court also noted that a bail application in this regard had been received from the concerned Jail. The learned Trial Court proceeded to call for a report regarding the previous involvements of the accused.
Quite significantly, the Bench points out in para 12 that:
Having perused the ordersheets of the learned Trial Court, it is discouraging to note that despite the mandate of Section 479 of BNSS, as noted above, and a report in this regard having already been sent by the Jail authorities and a bail application having also been moved, the learned Trial Court had adjourned the matter on several occasions in a mechanical manner, and even after recording on 08.01.2025 that the report qua the previous involvement of the accused had been received, a date of almost 20 days was given in the present case. Till date, the plea of the accused remains un-adjudicated before the learned Trial Court.
Most significantly, the Bench encapsulates in para 13 what constitutes the cornerstone of this notable judgment postulating that:
Needless to state, it is expected of the learned Trial Court to have, in such cases, promptly passed an order on such bail applications, in view of Section 479 of BNSS, and in case the Court was on leave i.e. on 11.12.2024, 13.12.2024, 20.12.2024 (half day) and 08.01.2025 – as evident from the order sheets of learned Trial Court – such matter should have been taken up on next day itself or a shorter date could have been given, in order to dispose of the bail application of the accused and grant him the relief, if found entitled to the same as per law, as the accused has been in judicial custody now for about 1 year and 10 months, and the victim and her mother are not appearing before the learned Trial Court for their evidence. This Court is also of the opinion that in case a judge proceeds on leave, it will be beneficial if there are instructions with the concerned staff, to bring it to the notice of the Link Judge, that such cases are to be taken up on priority, either on the next date or at the shortest possible date.
As a corollary, the Bench then holds in para 14 that:
In view of the aforesaid, considering the overall facts and circumstances of the case and in the interest of justice, this Court directs the learned Trial Court to decide the bail application of the applicant (in terms of Section 479 of BNSS), pending before it, within seven days from the receipt of this order.
Further, it is worth noting that the Bench notes in para 15 that:
The Registry is also directed to ensure that this order is communicated to the learned Trial Court, latest by tomorrow, including through electronic means.
What’s more, the Bench then directs in para 16 holding that:
With these directions, the present bail application stands disposed of.
Finally, the Bench then concludes by directing in para 17 that:
The judgment be uploaded on the website forthwith.
To conclude, the bottom-line of this notable judgment delivered by Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma of Delhi High Court is that Trial Courts must not mechanically adjourn bail pleas of undertrials who completed one-half of maximum imprisonment. It thus merits no reiteration that the same must definitely be complied to by the Trial Courts. No denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
