The Punjab & Haryana High Court has granted regular bail to an undertrial accused who had spent over five years in custody without trial conclusion, affirming that prolonged incarceration and the maintainability of a second bail petition are compelling factors warranting release, even in serious offences.
Background & Facts
The Dispute
The petitioner, Ankush, is accused in FIR No. 808 dated 12.11.2020 registered at Police Station HTM, Hisar, under Sections 103, 115(2), 118, 3(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS) - corresponding to Sections 302, 323, 324, 34 IPC - and Section 25 of the Arms Act. The case arises from a fatal stabbing incident on the night of 11.11.2020 outside Baba Hotel, Hisar, during which the deceased, Sonu, was killed and the complainant, Rohit, was injured. The prosecution alleges that the petitioner, along with two others, attacked the victims with knives after a verbal altercation.
Key Facts
- The incident occurred on the night of 11.11.2020 at approximately 11:30 PM.
- The complainant, Rohit alias Monty, filed the FIR on 12.11.2020.
- The petitioner’s name was not initially mentioned in the FIR; he was added later based on a supplementary statement by the deceased’s brother, Manish.
- The petitioner was arrested on 12.11.2020 and has remained in custody since.
- The charge sheet was filed on 02.02.2021.
- Out of 26 prosecution witnesses cited, 18 have been examined as of the date of the judgment.
- The complainant, Rohit, has repeatedly failed to appear for deposition despite court directives, and this delay is not attributable to the petitioner.
- The petitioner has been in custody for 5 years, 3 months, and 16 days as of 25.03.2026.
- The petitioner is also involved in another FIR, but this fact was not held sufficient to deny bail in the present case.
Procedural History
- 12.11.2020: Petitioner arrested.
- 02.02.2021: Charge sheet filed.
- 09.12.2024: First bail application withdrawn by the petitioner.
- 25.03.2026: Custody certificate filed by the State, confirming 5 years, 3 months, and 16 days of incarceration.
- 27.03.2026: Second bail petition filed under Section 483 of BNSS (equivalent to Section 439 CrPC) heard and decided by the High Court.
The Parties' Positions
For the Petitioner:
- Argued that he has been in custody for over five years without trial conclusion.
- Contended that his name was not in the original FIR and was added later based on a supplementary statement.
- Highlighted that the complainant, Rohit, has consistently failed to appear for examination, causing undue delay.
- Stated that there is no evidence of flight risk or tampering with evidence.
For the Respondent (State):
- Opposed bail on grounds of seriousness of the offence - murder and grievous hurt.
- Submitted the custody certificate to emphasize the length of detention but did not contest the absence of flight risk.
Relief Sought
The petitioner sought regular bail on the grounds of prolonged incarceration, lack of prosecutorial progress, and absence of risk of absconding or tampering with evidence.
The Legal Issue
Can a second bail petition be granted under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 when the first petition was withdrawn, and the accused has been in custody for over five years without trial conclusion, despite the gravity of the offence?
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on the prolonged duration of incarceration - over five years - and the failure of the prosecution to examine a key witness, the complainant Rohit. He cited Maulana Mohd. Amir Rashadi v. State of U.P. and Sridhar Das v. State to argue that undue delay in trial and extended undertrial detention are valid grounds for bail, even in heinous offences. He further relied on Akhilesh Singh v. State of Haryana and Balraj v. State of Haryana to assert that the absence of any tangible risk of absconding or evidence tampering must weigh in favour of release. He emphasized that the withdrawal of the first bail petition does not bar a second one, provided there is a substantial change in circumstances - namely, the passage of time and prosecutorial inaction.
For the Respondent
The State counsel opposed bail on the basis of the seriousness of the charges - murder and use of deadly weapons - and submitted that bail should not be granted in such cases absent exceptional circumstances. While acknowledging the length of custody, the State did not dispute the petitioner’s non-flight risk or the complainant’s non-appearance. The custody certificate was submitted merely to record the factual duration of detention, not as a basis to deny bail.
The Court's Analysis
The Court observed that while the allegations are grave, the primary consideration in bail matters is not the nature of the offence alone, but the balance between the right to liberty and the interests of justice. The Court noted that the petitioner has been in custody for over five years, during which the prosecution has failed to examine a crucial witness - the complainant - despite repeated court directives. This delay is not attributable to the petitioner and cannot be used to justify continued incarceration.
"Nothing tangible has been brought forward to indicate the likelihood of the petitioner absconding from the process of justice or interfering with the prosecution evidence."
The Court further held that a second bail petition is maintainable in law, regardless of whether the first was withdrawn, dismissed, or rejected on merits. Citing its own judgment in Rafiq Khan v. State of Haryana, the Court laid down that a substantial change in circumstances - such as prolonged incarceration and prosecutorial delay - qualifies as a valid ground for reconsideration. The Court emphasized that judicial discretion must be exercised with reason, and that mechanical rejection of successive bail petitions undermines the constitutional guarantee of personal liberty under Article 21.
The Court rejected the argument that involvement in another FIR justifies denial of bail in the present case, holding that each case must be judged on its own facts. The Court concluded that continued detention without trial progress is unjust and violates the principle of speedy justice.
The Verdict
The petitioner succeeded. The Court granted regular bail on the condition that he furnishes bail bonds to the satisfaction of the concerned CJM/Duty Magistrate. The petitioner shall not abscond, tamper with evidence, commit any offence, or delay the trial. He must deposit his passport, provide his mobile number to the Investigating Officer, and not change it without court permission. The State may move for cancellation of bail upon breach of any condition. The Court explicitly stated that nothing in the order constitutes an opinion on the merits of the case.
What This Means For Similar Cases
Second Bail Petitions Are Not Barred by Withdrawal
- Practitioners may file a second bail petition even if the first was withdrawn, dismissed without prejudice, or rejected on merits.
- The key is demonstrating a substantial change in circumstances - such as prolonged incarceration, prosecutorial delay, or unavailability of key witnesses.
- Courts must record cogent reasons for granting such petitions, but cannot reject them solely on the ground of being successive.
Prolonged Undertrial Detention Is a Ground for Bail
- Courts must actively consider the duration of incarceration when evaluating bail, especially where trial progress is stalled due to prosecutorial inaction.
- Delay caused by the State or complainant’s non-cooperation cannot be used to justify continued detention.
- In cases involving serious offences, bail should not be denied merely on the basis of gravity if there is no risk of flight or evidence tampering.
Judicial Discretion Must Be Reasoned, Not Mechanical
- Judges must avoid routine rejection of bail petitions based on precedent alone.
- Each case must be assessed on its unique factual matrix, particularly where undertrial detention exceeds three to five years.
- The burden shifts to the State to demonstrate a concrete risk to the trial process, not merely to rely on the seriousness of the charge.
