Safiya Malik

The Delhi High Court has set aside an order that led to the re-arrest of an accused in a double murder case, stating that the bail granted in 2021 was regular and not interim. The court determined that the trial court had misinterpreted the previous bail order, leading to the petitioner being taken into custody despite no such directive being issued in the original bail order.

The case originates from an incident that led to the registration of FIR No. 17/2018 at Police Station Palam Village, Delhi, on January 14, 2018. The complaint was lodged by a minor, Nishika, who reported that her mother, Deepa, and her brother, Rishi, were shot and killed by her paternal uncle, the petitioner in this case. Based on this complaint, the petitioner was arrested on January 29, 2018. Following an investigation, a chargesheet was filed accusing him under Sections 302 and 120B of the Indian Penal Code, 1860, along with Sections 25, 27, 54, and 59 of the Arms Act, 1959.

During the trial proceedings on January 13, 2020, Nishika did not support the prosecution’s case. She testified that the assailants were two tall individuals with their faces covered, which was different from the allegations in her initial complaint. Citing this change in testimony and the prevailing COVID-19 situation, the petitioner filed an application for regular bail on May 14, 2021. The application also referred to the guidelines issued by the High-Power Committee (HPC) recommending bail for certain categories of accused persons during the pandemic.

On May 20, 2021, the Additional Sessions Judge (Vacation Judge) granted bail to the petitioner. The order did not specify whether the bail was interim or regular. The petitioner was released from custody upon furnishing a personal bond of Rs. 30,000.

On May 17, 2023, another prosecution witness, identified as ‘K,’ was examined and cross-examined before the trial court. This witness did not support the prosecution’s case, stating that the physical description of the assailants did not match the petitioner.

On January 15, 2024, the State moved an application under Section 439(2) of the Code of Criminal Procedure, 1973, seeking cancellation of bail. The State contended that the May 2021 order had only granted interim bail, though the order did not explicitly mention this. The application further argued that bail had been granted primarily due to the COVID-19 situation rather than on the merits of the case.

On February 22, 2024, the Additional Sessions Judge concluded that the May 2021 order had only granted interim bail and directed the petitioner to be taken into custody. This led to the petitioner’s re-arrest, prompting him to approach the Delhi High Court seeking relief.

The Delhi High Court examined the bail order dated May 20, 2021, and the subsequent order of February 22, 2024. The court stated, "A plain reading of the order dated 20.05.2021 reveals that it does not use the term ‘interim’ at any point. The order clearly states that the petitioner was ‘admitted to bail,’ which, by its very language, implies grant of regular bail."

The court noted that the order did not impose any time limitation for the petitioner’s surrender, nor did it indicate that bail was subject to further extension, conditions typically associated with interim bail. The judgment stated, "The learned ASJ, instead of deciding the application for cancellation of bail, effectively reviewed and reinterpreted an order passed by the previous judge, which is not permissible in law."

The court further observed, "While it may be true that the order did not analyze any arguments or evidence, this omission does not ipso facto mean that the bail granted to the petitioner was not regular bail."

Though the learned ASJ in the impugned order noted that the order dated May 20, 2021, did not deal with the merits of the case, the conclusion that the said order granted only interim bail instead of regular bail was not sustained. The court stated, "No matter how illogical or unreasonable a successive or concerned court may find an order passed by a vacation judge or a link judge to be, it cannot review or reinterpret such order passed by another judge in a manner that alters its fundamental character." The judgment observed that the learned ASJ (Vacation Judge) had, rightly or wrongly, granted regular bail to the petitioner, and the impugned order amounted to a reappraisal of the bail order by another ASJ, which was not permissible in law.

The court further noted, "Be that as it may, while this Court acknowledges the seriousness of the offence alleged against the petitioner, but once regular bail was granted in 2021, it could not have been treated as interim bail after three years, particularly when no material was placed on record to support such an interpretation, and the petitioner could not have been taken into custody in connection with the present case."

Based on these findings, the Delhi High Court set aside the February 22, 2024 order that had resulted in the petitioner’s re-arrest. The court stated, "The State shall be at liberty to move any fresh application seeking cancellation of bail or setting aside of order granting bail to the petitioner, in accordance with law."

Case Title: Pramod Kumar Joshi v. State of NCT of Delhi

Neutral Citation: 2025:DHC:1331

Case Number: CRL.REV.P. 727/2024

Bench: Justice Swarana Kanta Sharma

[Read/Download order]