Approaching HC For Bail U/S 483 BNSS Without Approaching Trial Court Unnecessarily Burdens HC: J&K High Court
LIVELAW NEWS NETWORK
29 Nov 2024 1:30 PM IST
Criticising the growing trend of directly approaching the High Court for bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 the Jammu and Kashmir and Ladakh High Court has observed that bypassing the trial courts in such matters not only burdens the High Court but also disregards the legal protocol, where such petitions should typically be first addressed by the courts below.
“This Court is of the opinion that a petition in terms of Section 483 BNSS corresponding to Section 439 of the repealed Code shall normally be filed, if needed, by either side as a successive one after the disposal of the first application by a competent court”, observed Justice Mohammad Yousuf Wani.
The court added that advocates practising in the High Courts resort to such practice of directly approaching this Court for their own convenience being unmindful of the petitioner's losing one forum.
The Court expressed concern that this trend could unnecessarily overload the High Court with matters that could be more appropriately addressed at the lower court level and urged advocates to exercise caution and prioritize the correct legal procedures in future cases.
The court added,
“.. the restrictions figuring under the provisions of the Section 480 BNSS corresponding to Section 437 of the repealed Code are deemed to be imported in the former (Section 483 BNSS). A compelling justifiable ground or a circumstance should be made out for directly approaching the High Court or a court of Sessions under Section 483 BNSS for grant or cancellation of bail”,
Justice Wani made these observations while hearing a bail application stemming from a financial scandal involving the misappropriation of funds at the Sub-Treasury Reasi. The petitioner, Ajeet Kumar, a former Assistant Treasury Officer, along with his co-accused, allegedly siphoned off ₹1.38 crore from the government treasury by creating false bills and vouchers over several months, from May 2023 to March 2024.
The petitioner was charged under Sections 409 (criminal breach of trust), 420 (cheating), 467 (forgery), 468 (forgery for purpose of cheating), 471 (using forged documents), 477-A (falsification of accounts), and 120-B (criminal conspiracy) of the Indian Penal Code. The Crime Branch Jammu, after investigating the matter, submitted the charge sheet against the accused, including Kumar.
Seeking bail Senior Advocate P.N. Raina, representing Kumar argued that his client was falsely implicated. He submitted that Kumar, despite being an officer in charge of the treasury, had no direct involvement in the fraudulent transactions.
Raina added that Kumar's role was limited to overseeing the treasury's operations, and any failure to detect the fraud was due to the actions of the co-accused.
Opposing the bail, Senior Additional Advocate General Monika Kohli contended that Kumar, as the Assistant Treasury Officer, had a responsibility to ensure that proper checks were in place, which he failed to do.
Kohli argued that Kumar's role was crucial in facilitating the conspiracy, as he negligently delegated his powers to a co-accused, enabling the fraudulent activities to continue unchecked. It was stressed that the gravity of the offence and the involvement of a public servant in a financial crime warranted the denial of bail.
Court's Observations:
Justice Wani, in his ruling, emphasized that bail is the rule, and jail is the exception, particularly in cases where the accused poses no risk of tampering with evidence or absconding.
Drawing from judicial precedents such as State of Rajasthan v. Balchand and Dataram Singh v. State of UP, the Court reaffirmed that the primary purpose of bail is to ensure the presence of the accused during the trial, not to punish them before conviction.
The Court also referenced the case of Sanjay Chandra v. CBI (2012), where the Supreme Court ruled that economic offences, while serious, should not automatically bar an individual from bail, especially if no evidence of the accused's personal involvement in the financial irregularities is found.
Underlining that the seriousness of the charge, although a factor, should not be the sole consideration in bail decisions the Court stressed the importance of balancing the accused's right to liberty with the need for a fair trial.
“The necessary arrests subject to the law of bails as provided under the Code, BNSS and the provisions of different special Legislations are permissible under the Constitution of our Country by way of a reasonable exception to the fundamental right to liberty guaranteed under Article 21 of the Constitution and the mandate of the provisions of Article 22 of the Constitution is meant to be followed upon making any such necessary arrests”,the court remarked.
Observing that there was nothing on record to suggest that the petitioner, if admitted to bail, will jump over the concession and misuse the same by attempting to influence the prosecution witnesses or by absconding at the trial the court stated,
“In the opinion of the Court, the guiding factors/underlying principles that have been from time to time evolved by the Hon'ble Apex Court and various High Courts of our Country including this Court for consideration of a bail application jointly or severally do not justify the denial of bail to the petitioner/accused in the given facts of the case especially the accusation to his extent”
In consonance with these considerations the petition was allowed and the petitioner/accused was admitted to bail.
Case Title: Ajeet Kumar Vs UT Of J&K
Citation: 2024 LiveLaw (JKL) 320
