Safiya Malik

The High Court of Punjab and Haryana Single Bench of Justice Anoop Chitkara held that recidivism does not affect the powers of the Chief Judicial Magistrate or Judicial Magistrate to grant bail and directed confirmation of interim bail previously granted. The Court stated that all offences mentioned in the First Information Report were triable by a Magistrate and that despite the petitioner’s prior criminal antecedents, he was entitled to bail. The Court allowed the petition, confirmed the interim order, and issued directions to ensure judicial officers across Punjab, Haryana, and Chandigarh were made aware of the scope of their powers under the Bharatiya Nagarik Suraksha Sanhita, 2023.

The matter arose from an FIR registered on January 16, 2025, at City Sangrur Police Station, District Sangrur, Punjab, invoking Sections 331(4), 305, 112, 317(2), and 238 of the Bharatiya Nyaya Sanhita, 2023. The petitioner was accused of stealing a sports bicycle and a pair of shoes, with the bicycle subsequently recovered during the investigation. The alleged theft was captured on CCTV, where the accused had concealed his identity with a muffler. The FIR was filed after a delay of ten days.

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The petitioner’s criminal antecedents were disclosed in paragraph six of the bail petition. These included several FIRs registered between 2024 and 2025 under provisions of the Indian Penal Code as well as the Bharatiya Nyaya Sanhita, including theft, house trespass, and offences under Sections 331(4) and 305. The petitioner was incarcerated following the registration of the FIR. His first bail application before the Chief Judicial Magistrate was withdrawn, and a subsequent application before the Additional Sessions Judge was dismissed on March 18, 2025, on grounds of recidivism.

The Court noted that the Additional Sessions Judge disregarded the delayed registration of the FIR, sketchy evidence, and the principle of presumption of innocence. The High Court observed that the petitioner had already undergone around four months of custody by May 27, 2025, when interim bail was granted. During this period, there was no allegation of violation of bail conditions. The Court considered that the incarceration was disproportionate to the nature of the allegations, given the recovery of the bicycle and the minor nature of the alleged theft.

The Court recorded that the offences mentioned in the FIR were not punishable with capital punishment or imprisonment exceeding ten years, implying that Section 238(c) was applicable. The offences were therefore triable by a Magistrate. It was noted that despite the nature of the case, the petitioner’s bail before the Chief Judicial Magistrate had been withdrawn, and his subsequent bail plea before the Sessions Court had been rejected. The Court remarked that such withdrawal of bail applications in minor offences was inexplicable and that real justice would have been served had the Chief Judicial Magistrate exercised jurisdiction to grant bail.

The Court took note of systemic issues, particularly the reluctance of Magistrates to grant bail in non-heinous matters triable before them due to lack of assurance from higher judiciary. The Court stated that the petitioner, an apparently poor person, had been compelled to undergo long incarceration for minor theft allegations, a period longer than what would have been faced if guilt had been admitted.

The Court framed two propositions: first, the scope and powers of Chief Judicial Magistrates and Judicial Magistrates to grant bail in cases triable by them; and second, whether recidivism affects such powers.

Addressing the second proposition, the Court cited Maulana Mohd Amir Rashadi v. State of Uttar Pradesh and another (2012) 2 SCC 382, wherein it was held: “merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.”

The Court stated: “Although crime is to be despised and not criminal, for a recidivist, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles, and the more difficult the terrain.” It further noted that “a recidivist often operates on unstable grounds, where the burden of a substantial criminal record complicates matters further. One key factor is the likelihood that the bail petitioner will reoffend after being released. However, the evaluation must not be clouded by judgmental bias, and the assessment must not be tainted by indelible arbitrariness, as arbitrariness is antithetical to the rule of law.”

The Court clarified that in considering criminal history, cases resulting in acquittal, discharge, quashing, withdrawal, or closure reports should not be included. It recorded: “where the offense for which bail is sought is not grave, or heinous, or is subject to some special riders, and when such arrest is generally unwarranted, or acquittal is inevitable, Courts must not deny bail even to the recidivists solely as a punitive measure intended to serve as a pretrial deterrent. Such a method violates the judiciary's duty to uphold the core principles of justice and fairness.”

The Court concluded: “even if the accused is a habitual offender, such recidivism would not affect the powers of the Chief Judicial Magistrate or Judicial Magistrate to grant bail. However, criminal history will be an additional factor for consideration before granting bail.”

The Court referred to Section 480 of the BNSS, 2023, which empowers Magistrates to release accused persons on bail in non-bailable offences, subject to specified restrictions and conditions. It observed: “By exercising the powers conferred under S. 480(1) of BNSS, any Chief Judicial Magistrate or Judicial Magistrate can release an accused on bail in all offenses; however, when the sentence prescribed is death or imprisonment for life, then strictly in terms of S. 480(1)(i), or if such accused has previously been convicted of an offense punishable by death, life, or seven years or more and/or has been convicted twice or more than two occasions for an offense punishable by three years or more as mentioned under Section 480(1)(ii), then the Magistrate has the power to grant bail when the accused is a child, woman, or is sick or infirm, in any cognizable offense in terms of S. 480, or after recording their satisfaction and by mentioning special reasons.”

It also cited judicial precedents, including Rasiklal v. Kishore s/o Khanchand Wadhwani (2009) 4 SCC 446, Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280, State of Maharashtra v. Kaushar Yasin Qureshi (1996) 2 MahLJ 485, Sukumari v. State of Kerala (2000), Ramji v. State of Punjab (2000), and Ram Bharoshi v. State of U.P. (2004). The Court analyzed these authorities to reaffirm that Magistrates retain powers to grant bail in non-bailable offences triable by them, subject to statutory restrictions.

The Court allowed the petition and confirmed the interim bail order dated May 27, 2025. It recorded: “Petition allowed. All pending applications, if any, stand disposed of.” The Court directed that copies of the order be circulated to all Judicial Officers of the District Judiciary of Punjab, Haryana, and Chandigarh.

The Court issued a detailed set of observations guiding Magistrates on exercise of bail jurisdiction. The Court recorded that where an accused is in custody for any non-bailable offence, and the Magistrate finds that there are not reasonable grounds for believing that the accused has committed such offence but sufficient grounds for further inquiry, then under Section 480(2) the Magistrate must grant bail subject to conditions. It further held that in cases where during investigation offences are reduced to bailable ones, the Magistrate is competent and bound to release the accused on bail, irrespective of prior rejection of bail by higher courts.

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The Court stated that in cases triable by the Magistrate, when the main or similarly placed co-accused have been granted bail by higher courts, then the Magistrate is competent to grant bail on parity to others. It added that even when bail has been rejected by Sessions or High Court on merits, the Magistrate has jurisdiction to grant bail on grounds of prolonged custody or delay in trial unless a time bound trial has been directed by higher courts.

The Court further directed that in cases triable by the Magistrate, if all victims do not oppose bail and affirm by affidavit that they have no objection, then bail should generally be granted. It also stated that where victims and accused compromise the matter, even if the offence is non-compoundable, such compromise is relevant for bail and should lead to release. Additionally, when proclamation proceedings have been initiated against an accused in such cases, upon surrender, the proclamation stands satisfied and bail should be granted for both the original offence and for proceedings under Section 174-A IPC or Section 209 BNSS, 2023.

Advocates Representing the Parties

For the Petitioner: Mr. S.S. Gill, Advocate

For the Respondents: Ms. Navreet Kaur Barnala, AAG, Punjab; Mr. Naveen Kumar Sheoran, DAG, Haryana; Mr. Manish Bansal, PP, UT Chandigarh; Mr. Navjit Singh, Advocate

Case Title: Suraj Kumar v. State of Punjab and others

Case Number: CRM-M-28141-2025

Bench: Justice Anoop Chitkara