The Uttarakhand High Court has clarified that mere instigation of a crime, without direct involvement in the act of violence, does not automatically disqualify an accused from being granted regular bail under the Bharatiya Nagarik Suraksha Sanhita, 2023. This ruling reinforces the principle that bail must be assessed on individual culpability, not collective blame.
Background & Facts
The Dispute
The present bail application arises from FIR No. 08 of 2026, registered on 13.01.2026 at Police Station Nanakmatta, District Udham Singh Nagar, under Sections 109, 115, 191(3), 352 and 3(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS). The accused, Sukhvinder Singh, is alleged to have instigated Mangat Singh to fire upon Major Singh, resulting in serious injury. The prosecution’s case hinges on the theory of common intention under Section 109 BNS, which criminalizes abetment.
Key Facts
- The primary accused, Mangat Singh, allegedly fired the weapon directly at Major Singh, causing grievous injury.
- The injured victim, Major Singh, identified Mangat Singh as the shooter in his statement.
- Sukhvinder Singh, along with co-accused Kulwant Singh, Balkar Singh, Balveer Singh and Balvinder Singh, is alleged to have instigated Mangat Singh to commit the act.
- No eyewitness or forensic evidence links Sukhvinder Singh to the actual discharge of the firearm.
- An arrest order was passed against Sukhvinder Singh on 24.02.2026 in WPCRL No. 308 of 2026.
- The applicant has been in custody since his arrest on 24.02.2026.
Procedural History
- 13.01.2026: FIR No. 08 of 2026 registered at Police Station Nanakmatta.
- 24.02.2026: Arrest order passed against Sukhvinder Singh in WPCRL No. 308 of 2026.
- 01.04.2026: Bail application filed under Section 483 BNS before the Uttarakhand High Court.
The Parties' Positions
For the Applicant
- Sukhvinder Singh was not the person who fired the weapon.
- The victim’s own statement identifies Mangat Singh as the shooter.
- His role, if any, was limited to instigation, which does not equate to direct participation in violence.
- He has no prior criminal record.
- Grant of bail will not impede investigation, as the main accused and key evidence are already in custody.
For the Respondent (State)
- The applicant was part of a group acting with common intention under Section 109 BNS.
- Instigation is a substantive offence under the BNS and carries equal culpability.
- Granting bail may encourage witness intimidation or tampering with evidence.
- The gravity of the offence - attempt to cause grievous hurt with a firearm - justifies continued detention.
Relief Sought
The applicant seeks regular bail under Section 483 BNS, with conditions of personal bond and two sureties, pending trial.
The Legal Issue
The central question was whether Section 109 of the Bharatiya Nagarik Suraksha Sanhita, 2023 justifies denial of regular bail solely on the ground of instigation, when the accused did not physically commit the act of violence and the victim has identified another person as the shooter.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel relied on the principle that bail is the rule and jail is the exception, as affirmed in State of Rajasthan v. Balchand and Sanjay Chandra v. CBI. They argued that under Section 109 BNS, abetment requires proof of active encouragement, but does not equate to direct perpetration. The absence of any evidence linking the applicant to the firearm, coupled with the victim’s identification of Mangat Singh as the shooter, demonstrated a clear distinction in roles. The applicant’s detention without trial for over a month, without any allegation of flight risk or tampering, was disproportionate.
For the Respondent/State
The State contended that Section 3(5) BNS criminalizes acts done with common intention, and instigation is a form of participation that renders all participants equally liable. The presence of multiple accused acting in concert, as per witness statements, indicated a premeditated conspiracy. The State further argued that granting bail to one accused in a serious case involving firearms could undermine public confidence and embolden others to evade justice.
The Court's Analysis
The Court examined the nature of the allegations against Sukhvinder Singh and distinguished between direct perpetration and abetment. It noted that while Section 109 BNS criminalizes instigation, the burden of proving active participation in the commission of the offence remains on the prosecution. The Court emphasized that the victim’s statement, which named only Mangat Singh as the shooter, was a critical piece of evidence in favor of the applicant.
"The Applicant was not the person who opened fire on the injured with the gun. The role attributed to him is that of instigation, which, while legally significant, does not, by itself, justify denial of bail in the absence of evidence of direct violence or threat to investigation."
The Court further observed that the prosecution had not adduced any material to suggest that the applicant would tamper with evidence, influence witnesses, or flee. The fact that the main accused had already been arrested and the victim had identified him diminished the risk of interference. The Court held that the doctrine of common intention does not negate the individualized assessment required under Section 483 BNS for bail. Denial of bail on the basis of collective liability alone, without concrete evidence of flight risk or obstruction, would violate the constitutional guarantee under Article 21.
The Verdict
The bail application was allowed. Sukhvinder Singh is directed to be released on bail upon furnishing a personal bond of Rs. 50,000 with two reliable sureties each in the like amount, to the satisfaction of the concerned court. He shall cooperate fully with the trial proceedings, appear before the court whenever required, and shall not contact any witness or tamper with evidence. The order is effective immediately.
What This Means For Similar Cases
Instigation Alone Does Not Justify Bail Denial
- Practitioners must argue that Section 109 BNS liability must be assessed separately from direct perpetration when seeking bail.
- The absence of physical involvement in the violent act, especially where the victim identifies another person as the perpetrator, is a strong mitigating factor.
- Courts must conduct individualized risk assessments, not apply blanket denials based on group liability.
Victim’s Statement Holds Weight in Bail Decisions
- If the victim identifies only one person as the perpetrator, and the accused is alleged only as an instigator, this creates a material distinction that favors bail.
- Prosecution must produce independent evidence of the accused’s active role in the violence beyond mere association.
- Bail applications under BNS must now explicitly address whether the accused’s conduct meets the threshold of danger to investigation or public order.
Procedural Fairness Over Collective Punishment
- The judgment reinforces that bail jurisprudence under BNS must prioritize individual culpability over collective blame.
- Courts should not treat all co-accused identically in bail proceedings merely because they are charged under common intention provisions.
- Defence counsel should routinely request separation of roles in charge sheets and use victim statements to isolate individual liability.
