Justice Sandeep Kumar grants bail in a PMLA case

Patna High Court's delivered five judgements on January 16, 2026 in Nitesh Kumar vs. The Union of India through Assistant Director, Patna Zonal Office, Enforcement Directorate (E.D.), Minta Devi vs. The State of Bihar, Ran Vijay Kumar @ Ranvijay Kumar Gupta vs. Sanjay Kumar, Kumar Sidharth vs. The State of Bihar and In view of Honble courts order dt. 19-07-2024 passed in CWJC No.6995 of 2019 vs. The State of Bihar.

In Nitesh Kumar vs. The Union of India through Assistant Director, Patna Zonal Office, Enforcement Directorate (E.D.) (2026), Justice Sandeep Kumar delivered a 29-page long judgment concluded:"26. In the considered opinion of this Court, the petitioner, who is in custody since 20.12.2023 having clean antecedent and similarly situated co-accused persons have been granted bail by a coordinate Bench of this Court, deserves to be enlarged on bail on the grounds of his prolonged incarceration and that there being no possibility of conclusion of trial in near future. Further, keeping the petitioner in custody without actually being held guilty would be against Article 21 of the Constitution of India and the law laid down by the Hon’ble Supreme Court in the cases of V. Senthil Balaji (supra) and Manish Sisodia (supra). 27. Accordingly, let the petitioner be released on bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One Lakh) with two sureties of the like amount each to the satisfaction of learned Sessions Judge-cum-Special Judge (PMLA), Patna / concerned Court below, in connection with Special Trial (P.M.L.A.) Case No.12 of 2023, arising out of E.C.I.R. No. PTZO/27/2023, subject to the following conditions:-
i. The petitioner shall not leave the country without the permission of the Trial Court;
ii. The petitioner shall appear before the Special Court/concerned Court as and when the matter shall be taken up i.e. on each and every date.
iii. The petitioner shall provide his mobile number to the Enforcement Directorate at the time of his release, which shall be kept in working condition and active at all times and he shall not switch off or change the same without prior intimation to the Enforcement Directorate during the period of bail.
iv. In case, the petitioner changes his address, he will inform the Enforcement Directorate as well as to the concerned Court. 
v. The petitioner shall not indulge in any criminal activity during the bail period.
vi. The petitioner shall not influence the prosecution witnesses directly or remotely. 
vii. The prosecuting agency will be at liberty to file an application for modification/recalling of the order passed by this Court if the petitioner violates any of the conditions imposed by this Court.
28. Accordingly, the present bail application is allowed with the aforesaid conditions.
29. Needless to state that this Court has not expressed any opinion on the merits of the case."

Justice Kumar drew on Supreme Court's decision in V. Senthil Balaji vs. The Deputy Director, Directorate
of Enforcement reported as 2024 SCC OnLine SC 2626, wherein the Court has held that the Constitutional Courts can enlarge the accused on bail in cases of continued and prolonged incarceration and where there is no possibility of conclusion of trial in near future. The petitioner's counsel relied on Supreme Court's judgement in Sagar vs. State of U.P. & Anr. reported as 2025 SCC OnLine SC 2584.

He also relied on Supreme Court's decision in Manish Sisodiya vs. Directorate of Enforcement reported as (2024) 12 SCC 660, wherein it has clarified and crystallized the law on the aspect of harmonization between the stringent twin conditions under section 45 of the P.M.L.A. and the valuable and treasured right to personal liberty enshrined under Article 21 of the Constitution of India. The relevant portion of the aforesaid decision read as under:-
“47. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.
48. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor. 
49. Recently, this Court had an occasion to consider an application for bail in Javed Gulam Nabi Shaikh v.
State of Maharashtra [(2024) 9 SCC 813] wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in Gudikanti Narasimhulu v. High Court of A.P. [(1978) 1 SCC 240], Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565], Hussainara Khatoon (1) v. State of Bihar [(1980) 1 SCC 81], Union of India v. K.A. Najeeb [(2021) 3 SCC 713] and Satender Kumar Antil v. CBI [(2022) 10 SCC 51].
50. The Court observed thus: (Javed Gulam Nabi Shaikh case
“17. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”
51. The Court also reproduced the observations made in Gudikanti Narasimhulu [(1978) 1 SCC 240], which read thus:
“8. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. High Court of A.P. (1978) 1 SCC 240. We quote (SCC p. 243, para 5):
‘5. … What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R. v. Rose (1898) 18 Cox CC 717]:
“I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial.”
52. The Court in Javed Gulam Nabi Shaikh case further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straightforward open-and-shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognise the principle that “bail is rule and jail is exception”.
53. In the present case, in ED matter as well as CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitised documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind bars for an unlimited period of time in the hope of speedy
completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.
54. As observed by this Court in Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240, the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial. 
55. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing available for facing the trial. In any case, conditions can be imposed to address the concern of the State.
56. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant.” (emphasis supplied).

Justice Kumar observed: "In light of the aforesaid judgments, it is evident that the stringent requirement under section 45 of the P.M.L.A. for grant of bail i.e. the twin conditions do not create an absolute restraint or barrier in granting bail on the grounds of delay in conclusion of trial and long period of incarceration. 

Justice Kumar did not agree with the counsel for the Enforcement Directorate who relied upon the following decisions in order to contend that in the facts of the present case the threshold of section 45 of the P.M.L.A. is not met and therefore, the petitioner may not be enlarged on bail:-
i. Tarun Kumar vs. Assistant Director, Directorate of Enforcement reported as 2023 SCC OnLine SC 1486;
ii. Enforcement Directorate vs. Aditya Tripathi reported as 2023 SCC OnLine SC619;
iii. State of Bihar & Anr. vs. Amit Kumar @Bachcha Rai reported as (2017) 4 SCR 503
iv. Nitesh Purohit vs. Enforcement Directorate reported in 2023 SCC OnLine Chh 3828
v. Union of India vs. Kanhaiya Prasad reported as 2025 SCC OnLine SC 306;
vi. Pradeep Nirankarnath Sharma vs. Union of India reported as 2025 INSC 349.

Justice Kumar recalled the Supreme Court's decision in the Vijay Madanlal Choudhary vs. Union of India reported as (2023) 12 SCC 1, the Supreme Court while upholding the Constitutionality of section 45 of the P.M.L.A. has held that though the aforesaid provision imposes stringent twin conditions for grant of bail, but the aforesaid statutory straint on the grant of bail and the discretion vests in the Court, which is to be exercised fairly, judiciously and not in an arbitrary manner. The relevant paragraphs of the aforesaid decision read as under:-
“302. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act. While dealing with a similar provision prescribing twin conditions in Mcoca, this Court in Ranjitsing Brahmajeetsing Sharma [(2005) 5 SCC 294] held as under :-
“44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of Mcoca, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like Mcoca having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.”
(emphasis supplied

303. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the court based on available material on record is required. The court will not weigh the evidence to find the guilt of the accused which is, of course, the work of the trial court. The court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the trial court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad v. CBI, (2013) 7 SCC 466, the words used in Section 45 of the 2002 Act are “reasonable grounds for believing” which means the court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt.” 

Justice Kumar referred to Supreme Court's decision in Prem Prakash vs. Union of India through Directorate of Enforcement reported as (2024) 9 SCC 787 which relied upon Vijay Madanlal Choudhary (supra) to hold as under:-
“12. All that Section 45 PMLA mentions is that certain conditions are to be satisfied. The principle that, “bail is the rule and jail is the exception” is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 PMLA by imposing twin conditions does not re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied.

13. Independently and as has been emphatically reiterated in Manish Sisodia v. Enforcement Directorate, (2024) 12 SCC 660, relying on Ramkripal Meena v. Enforcement Directorate, (2024) 12 SCC 684 and Javed Gulam Nabi Shaikh v. State of Maharashtra, (2024) 9 SCC 813, where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial within a short span, the rigours of Section 45 PMLA can be suitably relaxed to afford conditional liberty. Further, Manish Sisodia v. Enforcement Directorate, (2024) 12 SCC 660 reiterated the holding in Javed Gulam Nabi Sheikh v. State of Maharashtra, (2024) 9 SCC 813], that keeping persons behind the bars for unlimited periods of time in the hope of speedy completion of trial would deprive the fundamental right of persons under Article 21 of the Constitution of India and that prolonged incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial.

14. In fact, Manish Sisodia v. Enforcement Directorate, (2024) 12 SCC 660 reiterated the holding in Manish Sisodia v. CBI (2024) 12 SCC 691: wherein it was held as under : (Manish Sisodia case [Manish
Sisodia v. CBI, (2024) 12 SCC 691 : 2023 SCC OnLine SC 1393], SCC paras 34-35)
“34. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnapping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. 
35. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to
exercise the power to grant bail. This would be truer where the trial would take years.” 

Justice Kumar drew on this background to observe that Section 45 PMLA needs to be understood and applied. Article 21 being a higher constitutional right, statutory provisions should align themselves to the said higher constitutional edict.The Constitutional Court cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the constitutional rights of the undertrials will be defeated.

Ecocide in Patna: Story of cutting, uprooting, transplanting of over 1000 trees, clearing of forest land in Gardani Bagh for Patna Smart City Project

Upon hearing of a suo motu case In Re: Definition of Aravalli Hills and Ranges and Ancillary Issues (2025) by Supreme Court's 3-judge bench of bench of Chief Justice of India Surya Kant, Justice J.K. Maheshwari and Justice A.G. Masih passed a 9-page long order December 29, 2025, stayed Supreme Court's judgement dated November 20 2025 which accepted a new definition of the Aravalli hill ranges that the Union Environment Ministry proposed: that only hills above 100 meters above the local terrain be considered as the ‘Aravalli Hills and Ranges’. 

The order dated December 29 concludes: "12. In the interim, to subserve the ends of complete justice and in the broader public interest, we deem it necessary to direct that the recommendations submitted by the Committee, together with the findings and directions stipulated by this Court in its judgment dated 20.11.2025, be kept in abeyance. This stay shall remain in effect until the present proceedings reach a state of logical finality, ensuring that no irreversible administrative or ecological actions are taken based on the current framework. 13. We further find it necessary, as a matter of abundant caution, to direct unequivocally, as set out in the order dated 09.05.2024, that until further orders, no permission shall be granted for mining, whether it is for new mining leases or renewal of old mining leases, in the ‘Aravalli Hills and Ranges’ as defined in the FSI Report dated 25.08.2010 without prior permission from this Court." 

Notably, in T.N. Godavarman Thirumulpad vs. Union of India & Ors. ( I.A. No. 130612 of 2024 and I.A. No. 134904 of 2024 in W.P.(C) 202 of 1995. Order dated July 23, 2024) had directed the Government of Rajasthan to consider the proposals for renewal of mining leases granted for operations in the Aravalli hills/ranges, as identified in the Forest Survey of India (FSI) Report dated August 25, 2010.

The Court's order dated November 20 stated that “Those hills and ranges comprising rocks of the Aravalli Supergroup and Delhi Supergroup, which originated during the Palacoproerozoid to Mesoproterozoic, having a relief higher than 100 meters (+5 Meters) above the surrounding terrain, may be defined as ‘Aravalli Hills and Ranges’”. The new definition treats a landform as part of the Aravalli landscape only if it has at least 100 metres of elevation above the local relief (including the landform’s slopes and adjacent areas). The elevations of physical and geographical features are usually expressed in metres above mean sea level – and are not dependent on the terrain around them. The report of the committee that looked into this that  justified this by noting that the use of elevation alone as a “sole criterion cannot suffice the purpose as taking the average elevation for defining Aravalli Hills and Ranges will lead to inclusion and exclusion error for selection of Aravalli Hills and Ranges in the four States”. This definition implies that at least 90% of the Aravallis will no longer be protected legally. 

These goings on around Aravilli Hills reminiscent of the Patna High Court's anti-tree decision. In Tarumitra Through Shashi Darshan, Coordinator at Tarumitra & Anr. vs. The State of Bihar ,Through its Chief Secretary, Government of Bihar & Ors. (2022), Ptana High Court's Division Bench of Chief Justice Sanjay Karol and Justice S. Kumar delivered a 5-page long judgement dated September 19, 2022, wherein it concluded:"We are of the considered view that with the passage of time, the present petition can be closed for in pursuance to the direction issued by the Court, the respondent and more particularly the Forest Department (Municipal Limits, Patna) has taken effective steps for translocating the trees which were necessarily required to be felled for planned development of the city as is evident from the last affidavit dated 5th of September, 2022 filed by the Bihar State Pollution Control Board, a large number of trees stand translocated, the surviving rate is approximately 68%." The writ was filed on July 2, 2019 and registered on July 15, 2019. The second petitioner was Aruni Charitable Trust. Notably, its name appears only in the final judgement. 

Although the High Court granted liberty to the petitioners to highlight the surviving grievances and the consequential issues which may arise for consideration of the authorities, there is nothing in public domain to show that the issue of continued killing and death of trees were brought to the attention of the authorities and the Court. In Bihar's capital district and region wanton destruction of the environment—manifests primarily through systemic ecological degradation, illegal resource extraction, and severe pollution. 

The eight other respondents in Tarumitra case were: Building Construction Department Government of Bihar, Through its Principal Secretary, Department Environment Forest and Climate Change, Government of Bihar, Through its Principal Secretary, Patna Municipal Corporation Through its Commissioner, Bihar Urban Infrastructure Development Corporation Ltd. Through its Managing Director, Urban Development and Housing Department, Government of Bihar, Through its Principal Secretary, Bihar State Pollution Control Board Through its Chairman, Patna Smart City Limited Through its Managing Director, Patna Municipal Corporation, and Ministry of Environment Forest and Climate Change, Government of India, Through its Secretary.

The affidavit reads:- “7. That the committee again met on 30.12.2020 when on basis of filed report it was
suggested that survival rate of trees is 88%. The committee decided that some of the plantation activities can be done before next monsoon without waiting for all the constructions to be completed. 8. That on 25.08.2021 when the committee met next, the concerned Executive Engineer, Building Construction Department, Govt. of Bihar, informed that as on 25.08.2021 total of 344 trees had been translocated out of which 277 trees were surviving and as such survival rate was 80%. Further, it was informed that 260 new saplings were also been planted. 9. That the committee next met on 30.01.2022, when it was informed that total of 395 trees had been translocated, out of which 303 trees were surviving and as such survival rate was 76.71%. 10. That the DFO, Patna has also by his report dated 29.07.2020; 13.04.2021; 03.08.2021; & 22.08.2022 had informed the committee about the survival rate of the translocated trees. In the latest report dated 22.08.2022 it is informed that total 412 trees had been translocated out of which 281 are surviving and 131 had died, as such survival rate as on now is around 68%. 11. That a total of 451 trees were to be translocated, out of which 412 trees had been translocated. Further, in Ministers quarter area in addition to landscaping a total of 818 trees is proposed to be planted, out of which 324 trees had already been planted.”

Justice Karol who authored the judgement observed:"we close the present proceeding reserving liberty to the petitioner to highlight the surviving grievances, if any, as also the consequential issues which may arise for consideration of the authorities. We are hopeful that the authorities, being mindful of the ecological balance required to be maintained in the city, accounting for the environmental loss, shall take all steps on expeditious basis. As such the present petition stands disposed of reserving aforesaid liberty to the petitioner. Interlocutory Application(s), if any, shall stand disposed of."

In Civil Writ Jurisdiction Case No.14184 of 2019, its first order dated August 21, 2019 the High Court's Division Bench of Justices Shivaji Pandey and Partha Sarthy reads: "In the present case, Tarumitra, which is a registered Society, has filed this application making serious complaint that in the name of creation of multi-storied residential complex, the authorities are uprooting large number of green trees in Gardanibagh area, which would create great environmental problem in future. It has further been stated that the manner in which they are trans-locating the old trees, their survival is difficult and without sustaining forestry, it will be very difficult for human race to survive. Human population can not remain in proper shape in concrete jungle, but we also require forestry for the purpose of proper environment and ambiance. The allegation made in the present application is the manner green trees are being destroyed would bring catastrophe. It is required inclusive sustainable development, which also includes provision for urban forestry. Falling trees, ultimately, will affect the level of underground water and every year, it has been witnesses that the level of underground water is going down. In some areas, it has gone down much below causing serious problem in drinking water." Justice Pandey who authored the order directed the Union of India, State Government, Patna Municipal Corporation, Bihar Urban Infrastructure Development Corporation Limited and Bihar State Pollution Control Board to file their respective detailed counter affidavits. The Court concluded: "In the meantime, the standing tree will not be disturbed by uprooting or passively allow it to die."

In its second order dated January 28, 2020, the High Court's Division Bench of Chief Justice Karol and Justice Mohit Kumar Shah wrote:"Our order dated 21.08.2019 stands clarified that it shall be open for the State to proceed with the Project up to the stage of obtaining clearance from the State Environment Impact Assessment Authority, but however without the permission of the Court, no tree would be up-rooted or felled. As to whether up-rooting or fallen of tree is necessary or not, is the only issue which is left to be considered in the present petition, which we shall examine on the next date of hearing. List on 02.03.2020." The order was authored by Chief Justice Karol. He modified the interim order passed by Justice Pandey.  

In Civil Writ Jurisdiction Case No.8939 of 2019 filed by Gaurav Kumar Singh, in High Court's third 6-page long order dated March 4, 2020 in Gaurav Kumar Singh vs. The Chief Secretary, Government of Bihar with Tarumitra vs. The State of Bihar, the Division Bench of Chief Justice Karol and Justice S. Kumar wrote:"Our attention is invited to the second supplementary counter affidavit dated 02.03.2020 sworn by Pawan Kumar, Executive Engineer, Construction Division-1, Building Construction Department, Patna, wherein it stands averred that the State Environmental Assessment Committee, in its meeting, held on 28.02.2020, has decided to issue environmental clearance in respect of construction site Gardanibagh Housing Area Development Work, Patna. From the counter affidavit filed on behalf of Bihar State Pollution Control Board, Patna, it appears that the Board has no objection to the development of the area as also the project. From the affidavit dated 11.09.2019 filed by Shri Pawan Kumar, it is apparent that the area, in question, is sought to be developed in terms of the order dated 26.07.2019 issued by the Department of Environment, Forest and Climate Change, Government of Bihar, as also its subsequent modification. The project is for construction of residential complexes of various agencies under the Government of Bihar. The residential quarters and bungalows are to be constructed by demolishing the existing construction as per the master-plan approved by the State Government without involving any change in the land use." 

Justice Karol who authored the order added:"From the affidavit, it is also clear that the environmental clearance are either underway or have been proceeded by the authorities. The ‘Guideline for developing greenbelts 2000’ issued by the Central Pollution Control Board, also stands complied with. Under the proposed construction, approximately 365 numbers of trees are to be relocated and in lieu thereof 1119 new trees are to be planted. However, 384 trees are to be retained. At this juncture, we may also observe that way back in the year 1912, the land, in question, was acquired/earmarked for the purpose of Government quarters and offices. As such, the purpose is not to be changed/altered and is within the stipulations prescribed under the master-plan of Patna, 2031, as approved by the Government of Bihar in October, 2016. What the Government wants to do is to demolish the century old structures, thus far used for housing Government employees and instead of refurbishing the same, re-construction the area by building multi-storied apartments. Thus, the growth stipulated and postulated is vertical instead of horizontal. The project has complete provision for water conservation, recharge of ground water, disposal of garbage, maintenance of greenery, etc. Approximately, 20 per cent of the area of the land under the new
project is to be left as a green area with adequate parking space. Orally, we are informed by Shri Lalit Kishore, learned Advocate General that for redeveloping of 700 single storied Government houses as new modern residential complexes, process for issuance of tenders already stands completed and all environmental clearance will be obtained. The work is likely to be allotted to the successful bidder in the near future. As such, in our considered view, we see no hindrance in allowing the Government to proceed with the same."

Justice Karol further wrote:" there is one issue of public concern which needs attention/monitoring by the Court and that being as to how best and who would monitor the relocation/re-transplantation of the old trees as also afforestation of new trees. This, in our considered view, it can best be done with the monitoring of a committee of experts, including the learned counsels assisting the Court in these petitions.
As such, we constitute a Committee comprising of: (a) Conservator of Forest, Government of Bihar; (b) Chief Engineer, Building and Construction Department; (c) Member Secretary, Bihar State Pollution Control Board; (d) Secretary of State Environmental Impact Assessment Committee; (e) Shri Sarvesh Kumar Singh, AAG-13; (f) Shri Shashwat, Advocate; (g) Shri Deepak Kumar Singh, Advocate and (h) Ms. Binita Singh, Advocate. Needless to add, the State shall provide all facilities to the committee. The Conservator of Forest, Government of Bihar shall be the Chairman and the Member Secretary of the Bihar State Pollution Control Board shall be the Secretary of the Committee. We also notice that the State Government has its novel programme whereby has already planted 22.2 crores saplings in the State of Bihar. The Committee shall submit its report within a period of six months. List on 21.09.2020. It shall be open for the Government to proceed with the project and commence construction in accordance with law. Equally, it shall be open for the successful bidder to commence construction as per sanctioned plans."

In its fourth 2-page long order dated December 8, 2020, the same bench wrote:"We find the order dated 4th of March, 2020 has yet not been complied with. We are informed that the Committee has yet to prepare its report. Let needful be positively done within a period of four weeks from today, failing which the Members of the Committee shall remain present in Court through virtual mode. List on 19th of January, 2021."

In its penultimate order dated August 2, 2022, same bench wrote:"Let all the reports, including fresh evaluation report of the committee constituted by this Court in terms of order dated 04.03.2020 be filed within a period of four weeks from today. List this case on 6th of September, 2022."

The story of the felling and uprooting of 1000 trees and clearing of the forest land by the government in Gardani Bagh, Patna for the Patna Smart City Project is a story of institutional complicity in environmental destruction. There were approximately 1000 different variants of biomass in the plantation. It seemed impossible to transplant these rare species of biomass. 

Notably, Tarumitra;s case was filed after Gaurav Kumar Singh's case which was filed on April 3, 2019 and registered on April 22, 2019. It was heard along with Tarumita's case on few occasions but its name does not appear in the final judgement dated September 19, 2019. But it was also disposed of on the same day (September 19, 2019) but by a separate but almost similar 5-page long judgement. Justice Karol who authored the judgement in Gaurav Kumar Singh's case as well observed:"we close the present proceeding reserving liberty to the petitioner to highlight the surviving grievances, if any, as also the consequential issues which may arise for consideration of the authorities. We are hopeful that the authorities, being mindful of the ecological balance required to be maintained in the city, accounting for the environmental loss, shall take all steps on expeditious basis. As such the present petition stands disposed of reserving aforesaid liberty to the petitioner. Interlocutory Application(s), if any, shall stand disposed of." 

By now it is crystal clear that platitudes are inadequate to reverse ongoing environmental loss and ecocide.  

Ecocide is a crime in 11 countries. Vietnam has codified ecocide in its domestic law. It became the first country to do so. Article 278 of the Criminal Code of Vietnam, 1990 states that “Those who, in peacetime or wartime, commit acts of annihilating en-mass population in an area, destroying the source of their livelihood, undermining the cultural and spiritual life of a country, upsetting the foundation of a society to undermine such society, as well as other acts of genocide or acts of ecocide or destroying the natural environment, shall be sentenced to between ten years and twenty years of imprisonment, life imprisonment or capital punishment.”Some 30 countries are contemplating similar legislation." It is apparent that it drew environmental lessons from its war with USA which had used Agent Orange, a chemical weapon based on Dioxins, a persistent organic pollutant. 

Under Article 358 of the Criminal Code Russian Federation, 1996, ecocide is defined as “massive destruction of the fauna and flora, contamination of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind".

Under Article 161 of the Penal Code Kazakhstan, 1997, ecocide is defined as “mass destruction of the fauna or flora, pollution of the atmosphere, agricultural or water resources, as well as other acts which have caused or are capable of causing an ecological catastrophe, constitutes a crime against the peace and
security of mankind".

Under Article 374 of the Criminal Code Kyrgyzstan, 1997, ecocide is defined as “mass destruction of the flora and fauna, poisoning of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, is punishable by deprivation of liberty".

Under Article 400 of the Criminal Code Tajikistan, 1998, ecocide defined as “mass extermination of flora or fauna, poisoning the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind".

Under Article 409 of the Criminal Code Georgia, 1999, ecocide is defined as "Contamination of atmosphere, land and water resources, mass destruction of flora and fauna or any other action that could have caused ecological disaster - shall be punishable by imprisonment extending from eight to twenty years in
length".

Under Article 131 of Criminal Code Belarus, 1999, ecocide is defined as “mass destruction of the fauna and flora, pollution of the atmosphere and water resources as well as any other act liable to cause an ecological disaster”.

Under Article 441 of Criminal Code Ukraine, 2001, ecocide is defined as "Mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, - shall be punishable by imprisonment for a term of eight to fifteen years".

Under Article 136 of the  Penal Code Republic of Moldova, 2002, ecocide is defined as “the deliberate and massive destruction of the fauna and flora, the pollution of the atmosphere or poisoning of water resources, as well as other acts capable of causing an ecological catastrophe, is punishable by deprivation of liberty".

Under Article 394 of the Criminal Code the Republic of Armenia, 2003 defines ecocide as "Mass destruction of flora or fauna, poisoning the environment, the soils or water resources, as well as implementation of other actions causing an ecological catastrophe, is punished with imprisonment for the term of 10 to 15 years". 

The Courts in India seem oblivious of these developments in environmental law and jurisprudence. 

Dr. Gopal Krishna

 

Justices Rajeev Ranjan Prasad led Division Bench directs I.G. Prisons and Correctional Services, Bihar, to issue appropriate guidelines to all Jail Superintendents to abide by Constitutional Mandate against unauthorized detention

High Court awards a consolidated amount of Rs. 2 lakh to the petitioner by way of compensation for his unauthorized detention by the Jail Superintendent, Central Jail, Gaya Jee 

In Neeraj Kumar @ Neeraj Singh Vs. The State of Bihar through the Principal Secretary (Home), Police Department, Bihar (2025), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Sourendra Pandey delivered a 12-page long judgement dated November 13, 2025, wherein, it concluded:"Having considered the entire materials and the submissions as recorded hereinabove, we are of the considered opinion that a consolidated amount of Rs.2,00,000/- (Rupees Two Lakhs) would be a reasonable amount which may be awarded to the petitioner by way of compensation for his unauthorized detention by the Jail Superintendent, Central Jail, Gaya Jee. 12. Since we have come to know that this practice is going on in other jurisdictions of the Jail Superintendents in the State, the I.G., Prisons and Correctional Services is directed to issue appropriate guidelines to all the Jail Superintendents in the State of Bihar requiring them to strictly abide by the Constitutional Mandate and order of the Court without any exception. Such guideline shall be issued within a period of two weeks from today. The Respondent State of Bihar shall pay the compensation amount of Rs.2,00,000/- (Rupees Two Lakhs) to the petitioner within one month from today. Following the settled principle as discussed in the case of K.K. Pathak (supra), we direct that the amount so paid to the petitioner shall be realized from the erring official in accordance with law." Pranav Kumar, I.G. Prisons and Correctional Services, Bihar, the respondent no.3 was present through virtual mode during the hearing. 

The other nine respondents were:Director General of Police, Bihar, Inspector General of Prisons and Correctional Services, Bihar, Jail Superintendent , Central Jail District-Gaya, Deputy Jailor, Central Jail, District-Gaya, Senior Superintendent of Police, District-Gaya, SHO Sarbahda Police Station, District-Saran, District Magistrate, Gaya, Senior Superintendent of Police, Gaya and Officer-in-Charge, Sarbahda P.S., District- Gaya.

This writ application was taken up for consideration on November 12, 2025. The writ application raised an issue of serious concern for a Constitutional Court. It is well said that a Constitutional Court acts as a guardian to protect the fundamental rights of a citizen when it comes to protect his Right to Life and Liberty. In the case, the petitioner was confined in the Central Jail at Gaya Jee in connection with Sarbahda P.S. Case of 2025 registered on July 31, 2025 for the offences punishable under Section 30(a) and 37 of the Bihar Prohibition and Excise Act, 2016. In the said case, he was granted bail vide order dated September 23, 2025 by the competent Court and the Exclusive Special Excise Judge, Court No. 2, Gaya Jee issued a warrant to release him unless he is liable to be detained for some other matter. The warrant of release dated September 29, 2025 was communicated to the Superintendent, Central Jail at Gaya Jee.What happened thereafter are some disturbing features of this case. It appears that prior to receipt of the warrant to release, the Superintendent of Jail, Gaya Jee had received a production warrant from the court of learned Chief Judicial Magistrate, Buxar requiring production of the petitioner in connection with Buxar P.S. Case No. 87 of 2025. The counter affidavit filed on behalf of Respondent Nos. 1, 3, 4 and 5 has been filed enclosing certain documents. Annexure ‘R-1/B’ is the order requiring production of the petitioner in the court of learned Chief Judicial Magistrate, Buxar (Bihar) on 04.09.2025 by 10:00 AM as he was involved in a case of theft punishable under Section 303(2) of the Bhartiya Nyay Sanhita. Despite receipt of the production warrant, the Superintendent of Jail, Gaya Jee did not produce the petitioner in the learned Chief Judicial Magistrate Court at Buxar on 04.09.2025. 

The counter affidavit to show that the Superintendent of Jail, Gaya Jee informed the learned court of Exclusive Special Judge, Excise, 2nd Gaya Jee, the Senior Superintendent of Police, Gaya Jee and the learned Chief Judicial Magistrate, Buxar with regard to the requirement to produce the petitioner in the light of the production warrant. The Superintendent of Jail was looking for adequate force and vehicle with fuel from the Senior Superintendent of Police, Gaya Jee in order to produce the petitioner in Buxar Court. The respondents have not brought on record any other communication by way of response from the office of the Senior Superintendent of Police, Gaya Jee. It is also not clear whether the court at Gaya Jee was moved for seeking an order to take the petitioner to Buxar Court. The fact remains that even after his release order, the petitioner continued in detention.

The attention of the High Court was drawn towards the communication as contained in letter dated 06.10.2025 written by the Superintendent of Central Jail, Gaya Jee to the Senior Superintendent of Police, Gaya Jee wherein he has clearly recorded that after receipt of the release order from the local court, the petitioner has been released but had been kept confined on the strength of a production warrant. It is to be kept in mind that the date fixed in the production warrant was 04.09.2025 which had already expired. This is why it has also been submitted on behalf of the petitioner that in terms of Section 304 read with Section 305 of the Bhartiya Nagrik Suraksha Sanhita, 2023, once the date fixed in the production warrant expired and the order of release had already reached in the hand of the Superintendent of Central Jail, Gaya Jee, he had no option but to release the petitioner. It is pointed out that prior to receipt of the release order, the present authority could have requested the Buxar Court to issue a fresh warrant of production and the petitioner could have been produced on the strength of a fresh warrant of production before receipt of the release order. It was submitted that, in fact, in his communication dated 06.10.2025, the Superintendent, Central Jail made a wrong statement that after receipt of the release order, the petitioner was already released. His own statement in the said letter that the petitioner was still kept confined in the jail on the strength of the production warrant demonstrates that the continued detention of the petitioner was not authorized by any competent court of law, thus, his confinement in jail is in breach of the fundamental right of the petitioner. He was kept in jail for days even after release without there being any order of a competent court.

The Court noted the submission of P.N. Sharma, AC to AG that perhaps, this practice was an ongoing practice, though, it was not placed on affidavit and he has no specific instruction in his regard but what was gathered from his experience at the Bar as an Officer of the Court perhaps, this was the practice which is being followed.

AC to AG further submitted that prima-facie, it cannot be denied that the petitioner was not actually released from jail even after the receipt of the release order. He was produced in Buxar Court only on 17.10.2025. During the intervening period, there was no authorized detention of the petitioner.

Justice Prasad observed:"....this Court has no iota of doubt that in this case, the life and liberty of the petitioner has been curtailed to a great extent by keeping him in confinement for 18 days without any authorized detention order from a competent court of law. This Court is further disturbed from the fact that perhaps the same thing is happening as a matter of practice in the State of Bihar. This is a wider issue. While holding that the action of the State respondents in not releasing the petitioner actually from jail and keeping him confined in jail for 18 days without any authorized detention order is wholly illegal and is to be held as a breach of the fundamental right of the petitioner, we propose to award adequate compensation to the petitioner for his illegal detention and such compensation would be required to be realized from the erring official. It is wellsettled in law that if because of misuse of power by an executive/officer acting on behalf of the State, any compensation is required to be allowed to a citizen, such compensation should not go from the public exchequer, rather such money should be realized from the erring official.

The High Court noted that AC to AG informed that the petitioner was made to appear virtually before the In-charge, Chief Judicial Magistrate, Buxar on 04.10.2025 and he had been remanded to custody until 17.10.2025. Thus, his submission is that, in fact, it is not 18 days confinement without any authorized detention order, the actual unauthorized detention would come down to five days if counted from 29.09.2025 which was the date of the receipt of the release order of the petitioner in Sarbahda P.S. Case No. 91 of 2025.

Pranav Kumar, I.G., Prisons and Correctional Services submitted that on perusal of the entire records, he noticed that the petitioner was confined in jail even after September 29, 2025 without there being any order of a competent court of law, according to him, this was occasioned due to the intervening Durga Puja Holidays. The High Court, pointed out to him that even during Durga Puja Holidays, an In-charge Court was always available for this purpose and, in fact, the virtual appearance of the petitioner was done on October 4, 2025 which was during the Puja Holidays only, therefore, it cannot be allowed to be contend that the illegal detention of the petitioner from September 29, 2025 until his virtual production on October 4, 2025 was due to any reason beyond the control of the Jail Superintendent, Central Jail, Gaya Jee. The I.G., Prisons and Correctional Services was immediately realised this and was admitted that “Yes, there is an illegal detention for atleast five days”. 

Justice Prasad observed: "7. There being an admitted position that it is a case of unauthorized detention of the petitioner from 29.09.2025 until 04.10.2025 and this practice is going on without drawing much attention of the Department, this Court being a Constitutional Court cannot remain a silent spectator. The I.G., Prisons and Correctional Services has informed this Court that he has taken action against the Jail Superintendent, Central Jail, Gaya Jee in administrative side and will take it to a logical end, however, keeping in view the admitted facts of the case as we have already held that it is a case of illegal detention, we proceed to award compensation to the petitioner."

The judgement reads: "8. On the quantum of compensation, we have invited even I.G., Prisons and Correctional Services to say as to what would be a reasonable amount of compensation to the petitioner. He has submitted that a sum of Rs.10,000/- may perhaps be appropriate. Learned AC to AG has submitted that the Court should take a lenient view of the matter and a sum of Rs.10,000/-for each day of detention would be an appropriate amount of compensation."

The judgement recorded that the counsel for the petitioner vehemently submitted that the quantum of compensation to be fixed by the High Court should not be an indicative and symbolic one. "It is a matter in which admittedly, the liberty of the petitioner has been curtailed without following the established procedure of law, therefore, a clear case of violation of the Constitutional mandate under Article 21 of the Constitution of India has been made out. It is submitted that in such cases, in fact, the Government should have a policy to award ex-gratia compensation to an illegal detenue and such amount which are required to be paid to a person for his illegal detention be realised from the erring official so that the Public Exchequer which is the Custodian of public money should not be burdened with cost and compensation. He has relied upon a judgment of a learned Writ Court in case of K.K. Pathak @ Keshav Kumar Pathak Vs. Ravi Shankar Prasad and Others reported in 2019 (1) PLJR 1051 in which this principle has been discussed. It has also been pointed out that an appeal preferred against this judgment of the learned Writ Court in SLP (Crl) No. 003566/2019 before the Hon’ble Supreme Court did not succeed and the same was dismissed vide order dated 26.04.2019."

The counsel for the petitioner had prayed for an adequate compensation which according to him should not be less than Rs.1,00,000/- (Rupees One Lakh) per day. He had relied upon a 9-page long judgment of the Delhi High Court in the case of Pankaj Kumar Sharma vs. Government of NCT of Delhi & Others reported in 2023 SCC OnLine Del 6215 in which a Writ Court of Delhi High Court's Justice Subramonium Prasad was pleased to award a compensation of Rs.50,000/- to the petitioner for his illegal detention for about half an hour. 

The Delhi High Court relied on the judgement of the Supreme Court in D. K. Basu vs. State of West Bengal, 1997 (1) SCC 416, wherein it had directed the following requirements to be fulfilled in case of arrest. Paragraph 35 of the said judgment (D.K. Basu) reads as under:-

“35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of W.P.(C) 3851/2023 Page 4 of 9 arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also W.P.(C) 3851/2023 Page 5 of 9 examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. “

The Delhi High Court emphasised the Supreme Court’s observations in Para 44 in D K Basu (supra) also observed as under (Para 11):-

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

The Delhi High Court judgement also relied on the Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] in which heirs of a victim of custodial torture were granted compensation.

46. In Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] , it was held: (SCC pp. 767-68, para 32) “

Adverting to the grant of relief to the heirs of a victim W.P.(C) 3851/2023 Page 7 of 9 of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party.

The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve „new tools‟ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.

While concluding his first Hamlyn Lecture in 1949 under the title „Freedom under the Law‟ Lord Denning in his own style warned: „No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do.

But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age.

They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence…. This is not the task of Parliament … the courts must do this. Of all the great tasks that lie ahead this is the greatest.

Properly exercised the new powers of the executive W.P.(C) 3851/2023 Page 8 of 9 lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.‟ 

The Delhi High Court judgement, also relied on Nilabati Behera v. State of Orisa & Ors., 1993 (2) SCC 746, while dealing with the power of a constitutional court to award compensation rather than relegating such person to file a suit for recovery of damages, the Supreme Court observed as under:- (Para 12)

“22. The above discussion indicates the principle on which the court’s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and others in that line have to be understood and Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 Cri LJ 144] distinguished therefrom.

We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.”

It was submitted that the High Court has recently in the case of Arvind Kumar Gupta vs. State of Bihar and Others reported in 2025 (6) BLJ 52 dealt with this aspect of the matter, though, in case of illegal arrest resulting in unauthorized detention and has been pleased to award Rs.1,00,000/- to each of the Respondents Nos. 9 and 11 for their unauthorized detention in police custody. 

The attention of the High Court was drawn towards the judgment in Arvind Kumar Gupta (supra) which we quote hereunder for a ready reference:-“27. In the case of Rudal Sah vs. State of Bihar and Another reported in AIR 1983 SC 1086 while dealing with a case of unlawful detention in jail, the Hon’ble Supreme Court has held: “...In these circumstances, the refusal of this court to pass an order of compensation in favour of the petitioner will be doing mere lipservice to his fundamental right to liberty which the State Government has so grossly violated.”

The High Court held that in Pankaj Kumar Sharma vs. Government of NCT of Delhi & Ors. reported in 2023 SCC OnLine Del 6215, a Single Judge of the Delhi High Court had reviewed the case laws on the subject and upon finding that the petitioner was made to suffer in the lockup for only half an hour, the Single Judge directed for payment of compensation of Rs.50,000/- to the petitioner recoverable from the salaries of Respondent Nos. 4 and 5 who were the erring officials. Having regard to the well settled law on the subject, in the admitted facts of this case where these police officials have contravened the procedures and thereby caused injustice to Respondent Nos. 9 and 11 by keeping them in police custody without any sanction of law, we are of the considered opinion that Respondent Nos. 9 and 11 both are entitled for a compensation of Rs.1,00,000/- (Rupees One Lakh) each. The State shall be liable to pay Rs.1,00,000/- to each of Respondent Nos. 9 and 11 within a period of 30 days from today and recover the same from Respondent Nos. 7, 8 and 12 who have admitted the violation of the fundamental rights of Respondent Nos. 9 and 11 by not complying with the established procedure of law. It is well-settled that for any misuse of power by an officer of the State, if the State is being saddled with cost or compensation, the same be recovered from the erring officials. Reference in this regard may be made to the judgment of this Court in the case of K.K. Pathak @ Keshav Kumar Pathak vs. Ravi Shankar Prasad and Others reported in 2019 (1) PLJR 1051 which attained finality as the same has not been interfered with by the Supreme Court in SLP (Crl) No. 003566/2019.

Justice Prasad observed:"11. Having considered the entire materials and the submissions as recorded hereinabove, we are of the considered opinion that a consolidated amount of Rs.2,00,000/- (Rupees Two Lakhs) would be a reasonable amount which may be awarded to the petitioner by way of compensation for his unauthorized detention by the Jail Superintendent, Central Jail, Gaya Jee."

Also read: Fate of a Habeas Corpus petition, after disposal of the case by High Court, CBI finds Rajnath Sharma, the "absconding person" was killed, burnt in police custody

 

Supreme Court's Division Bench stays Justice Bibek Chaudhuri's order for action against SP, Bettiah for failure to comply with directions of 3-judge bench of Supreme Court to preserve CCTV footage

In The State of Bihar & Ors. vs. Suresh Yadav (2025), Supreme Court's Division Bench of Justices Prashant Kumar Mishra and Manmohan issued notice and stayed the impugned 6-page order dated February 13, 2025 passed by Justice Bibek Chaudhuri of the Patna High Court directing departmental action against Superintendent of Police, Bettiah. Supreme Court's order reads:"In the meantime, the operation and effect of the order impugned passed by the High Court shall remain stayed." 

The order of Supreme Court's Division Bench staying High Court's order seems to be in breach of judicial discipline. It seems to oblivious of the judgement dated December 2, 2020 by the 3-Judge Bench of the Supreme Court in Paramvir Singh Saini vs. Baljit Singh AIR 2021 Supreme Court 64. The Chief Secretary, Government of Bihar was one of the respondents in the case. The 3-Judge Bench comprising Justices Aniruddha Bose, K.M. Joseph and R. F. Nariman recalled that the Court, vide order dated September 16, 2020 had impleaded all the States and Union Territories to find out the exact position of CCTV cameras qua each Police Station as well as the constitution of Oversight Committees in accordance with the order dated April 3, 2018 of the Court in Shafhi Mohammad vs. State of Himachal Pradesh (2018) 5 SCC 311. It also recalled that the Court, while considering the directions issued in D.K. Basu vs. State of West Bengal & Others (2015) 8 SCC 744, held that there was a need for further directions that in every State an oversight mechanism be created whereby an independent committee can study the CCTV camera footages and periodically publish a report of its observations thereon. 

The report of the amicus dated January 25, 2021 mentioned in Court's order dated January 27, 2021 reveals that Bihar government had filed an filed an affidavit of compliance. The Court's order dated March 2, 2021 reads:"So far as the State of Bihar is concerned, nothing has been indicated as to amounts to be allocated for the project despite which a timeline of 24 months to complete the project has been indicated. We are most displeased with this affidavit. It shows a complete lack of any regard for the citizens’ Fundamental Rights under Article 21 of the Constitution of India and for our orders. We make it clear that within an extended time frame having regard to the complexity and size of the State, compliance is mandated. Therefore, we direct the State of Bihar to allocate funds for the purposes mentioned in our orders within a period of four weeks from today. Thereafter, the timeline for compliance will be fixed at a period of eight months after the period prescribed for budgetary allocation, i.e. within nine months from today. Our orders should have been followed in letter and spirit." (p.11-12)

Supreme Court's order dated April 6, 2021 records that the Court perused the progress report qua the State of Bihar. The Paramvir Singh Saini case is pending. It was last heard on February 9, 2024. The Court is monitoring compliance with its judgement and orders. The case from Bettiah reveals that non-compliance with Supreme Court's order has become the norm. Bihar government's affidavit in the Court had submitted that it keeps "12 month back-up" of CCTV footage. 

But the affidavit of the respondents in the High Court reveals that CCTV footage is being maintained by outsourcing agencies they maintain only 20 days record in respect of CCTV footage in the hard-disk and footage beyond 20 days are automatically deleted from the Hard-disk    

In Suresh Yadav vs. The State of Bihar through The Director General of Police, Bihar & Ors. (2025), Justice Chaudhari bench of the High Court heard the petition filed in the High Court on May 22, 2024. It was registered on May 28, 2024. The other four respondents are: District Magistrate, West Champaran Bettiah, Superintendent of Police, District West Champaran at Bettiah Bettiah, West Champaran, Block Development Officer, Sadar Bettiah Sadar Bettiah and Manoj Kumar Singh, Inspector- Cum- Sho, Bettiah Muffasil Police Station Bettiah. Justice Chaudhari's order dated February 13, 2025 reads:"....this Court finds that the Superintendent of Police, Bettiah is prima-facie found responsible for dereliction of duty when he failed to take any action upon the application dated 03.05.2024 filed by the wife of the petitioner. Such inaction obviously will have adverse impact in the investigation of the case. In view of such circumstances, the Director General of Police, Bihar, Patna, is directed to take departmental action against the Superintendent of Police, Bettiah for the above inaction while supervising the investigation in respect to Bettiah Muffasil P.S. Case No.180 of 2024." 

The High Court's order should also have asked for the status report on the West Champaran District Level Oversight Committee (DLOC) which was required in compliance with Supreme Court's directions. 

The petitioner has prayed for issuance of a writ in the nature of mandamus or any other appropriate writ/order/direction to the respondent authorities for Inquiry in a fair, impartial and time-bound manner by special team officer of higher rank or investigation by any independent agency such as CBI on complaint of wife of petitioner having acknowledgment number 1632/PG dated May 3, 2024 regarding false implication by planting Charas by Bettiah Muffasil Police officials on the petitioner in connection with Bettiah Town Thana Case No.180 of 2024 dated April 19, 2024. Suresh Yadav, the petitioner has prayed for direction to the respondent to secure, preserve and place on record the CCTV footage dated April 19, 2024 between the time period of 12:30 PM to 5:30 PM of all the Cameras installed in and around Parking of Zila Parishad, Bettiah near Superintendent of Police Office of CCTV cameras installed at Collectorate, Gate, of CCTV cameras installed by Nagar Parishad between two gates of Bus stand, Bettiah in terms of the Supreme Court’s judgment dated December 2, 2020 passed in the case of Paramvir Singh Saini vs. Baljit Singh & Others. Special Leave Petition (Criminal) No.3543/2020. He sought appropriate writ or writs in the nature of certiorari for deleting the name of the petitioner from array of accused in connection with Bettiah Muffasil Case No.180 of 2024 dated April 19, 2024 registered under Sections 414 IPC, 8, 20(B)(ii)(c)/22(c), 23(c) of the N.D.P.S. Act and for quashing all other consequential proceeding thereafter. The petitioner was apprehended in this P.S. case. 

The prosecution story is that on April 19, 2024 two persons were apprehended while riding on a motorcycle and some Narcotic substance were recovered from their possession. Police seized the Narcotic substance, motorcycle and arrested the said two persons. In course of interrogation of the said two persons, they allegedly disclosed that Suresh Yadav, the petitioner was also in the racket. Suresh Yadav was arrested and commercial quantity of Narcotic substance, viz., 04 kgs. of Charas were recovered from the possession of Suresh Yadav. On May 3, 2024 the wife of the petitioner submitted an application wherein she stated that the motorcycle in connection with Bettiah Muffasil P.S. Case No.180 of 2024 was seized from a parking lot at Bettiah and the persons who were apprehended were not traveling by the said motorcycle. Suresh Yadav was implicated in the case on some false and concocted allegations. Therefore, she prayed for preserving CCTV footage dated April 19, 2024 during the period between 12:30 p.m. and 05:30 p.m. in respect of all Cameras installed in an around the parking lot of Zila Parishad, Bettiah, near the office of Superintendent of Police, Bettiah as well as cameras installed at the Collectorate Gate and Nagar Parishad between two gates of Bus Stand, Bettiah as per the direction of the Supreme Court in the case of Paramvir Singh Saini vs. Baljit Singh & Others, Special Leave Petition (Criminal) No.3543/2020.

Notably, the very first order dated June 5, 2024 passed by Justice Rajeev Ranjan Prasad of the High Court had directed the Superintendent of Police, Bettiah to look into the request of the petitioner. The order recorded that "the petitioner has already submitted a request in this regard in the Public Grievance Cell of Bettiah Police as back as on 08.05.2024 but till date, no action has been taken." The order reads:"Ajay, learned G.A. 5 appears for the State and submits that there is no objection to the said prayer of the petitioner. In the aforesaid view of the matter for the present, this Court directs the Superintendent of Police, Bettiah to look into the request of the petitioner and take steps to secure and preserve the CCTV footage in accordance with law as prayed in paragraph ‘1(ii)’ of the writ application as the same may be required to be considered at appropriate stage."

Justice Chaudhary's order dated February 13, 2025 records:"The respondents have filed a counter affidavit stating, inter-alia, that the record of CCTV footage is maintained by an outsourcing agency under the name and style of AIM and Company Pvt. Ltd. and they maintained 20 days record in respect of CCTV footage in the hard-disk and footage beyond 20 days are automatically deleted from the Hard-disk. Therefore, on the date of the order passed by this Court, CCTV footage dated 19.04.2024 was automatically deleted and it is not possible for retrieve the data." 

The High Court's order reads:"....this Court is of the view that when an application was filed on 03.05.2024, i.e. within 20 days from the date of the alleged incident for restoration of data of CCTV footage around the place of occurrence filed by the wife of the present petitioner before the Superintendent of Police, Bettiah, he ought to have passed the order of protection and restoration of such data for proper investigation. The Superintendent of Police, Bettiah must know that the investigation of a criminal case is not for implicating a person in a criminal offence, but to unearth the truth, when the family member of one of the accused demanded that the truth will be unearth, if the CCTV footage was examined failure to take any action on such application by the Superintendent of Police, Bettiah amounts to an act of police inaction, for which the Superintendent of Police, Bettiah is held liable."

Justice Bibek Chaudhuri of the Patna High Court factors in the directions of the Supreme Court for constitution of Oversight Committee at the  State and District levels. The State Level Oversight Committee (SLOC) consists of:

(i) The Secretary/Additional Secretary, Home Department;

(ii) Secretary/Additional Secretary, Finance Department;

(iii) The Director General/Inspector General of Police; and

(iv) The Chairperson/member of the State Women’s Commission.

The District Level Oversight Committee (DLOC) comprises of:

(i) The Divisional Commissioner/ Commissioner of Divisions/ Regional Commissioner/Revenue Commissioner Division of the District (by whatever name called);

(ii) The District Magistrate of the District;

(iii) A Superintendent of Police of that District; and

(iv) A mayor of a municipality within the District/ a Head of the Zilla Panchayat in rural areas.

Supreme Court's judgement reads:" It shall be the duty of the SLOC to see that the directions passed by this Court are carried out. Amongst others, the duties shall consist of:

a) Purchase, distribution and installation of CCTVs and its equipment;

b) Obtaining the budgetary allocation for the same;

c) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment;

d) Carrying out inspections and addressing the grievances received  from the DLOC; and

e) To call for monthly reports from the DLOC and immediately address any concerns like faulty equipment.

Likewise, the DLOC shall have the following obligations:

a) Supervision, maintenance and upkeep of CCTVs and its equipment;

b) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment;

c) To interact with the Station House Officer (hereinafter referred to as the “SHO”) as to the functioning and maintenance of CCTVs and its equipment; and

d) To send monthly reports to the SLOC about the functioning of CCTVs and allied equipment.

e) To review footage stored from CCTVs in the various Police Stations to check for any human rights violation that may have occurred but are not reported."

The judgement further reads: "14. The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to  immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the concerned SHO shall inform the DLOC of the arrest / interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the concerned SHO has reported malfunctioning or non-functioning of CCTVs of a particular Police Station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.

15. The Director General/Inspector General of Police of each State and Union Territory should issue directions to the person in charge of a Police Station to entrust the SHO of the concerned Police Station with the responsibility of assessing the working condition of the CCTV cameras installed in the police station and also to take corrective action to restore the functioning of all non-functional CCTV cameras. The SHO should also be made responsible for CCTV data maintenance, backup of data, fault rectification etc.

16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points;  main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector's room; Sub- Inspector's room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.

17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in  any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.

18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.....

20. The SLOC and the COB (where applicable) shall give directions to all Police Stations, investigative/enforcement agencies to prominently display at the entrance and inside the police stations/offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it  shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

21. Since these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and since nothing substantial has been done in this regard for a period of over 2½ years since our first Order dated 03.04.2018, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible. Affidavits will be filed by the Principal Secretary/Cabinet Secretary/Home Secretary of each State/ Union Territory giving this Court a firm action plan with exact timelines for compliance with today’s Order. This is to be done within a period of six weeks from today.....

23. The Supreme Court registry to send a copy of this Order to all Chief/Principal Secretaries of all the States and Union Territories,  both by physical as well as electronic means, today itself."

 

Supreme Court reiterates "bail is rule and jail is exception", sets aside Delhi High Court's order on Manish Sisodia's bail application

Hearing Manish Sisodia Vs. Directorate of Enforcement, the appeal challenging the judgment and order of May 21, 2024 passed by the Delhi High Court rejecting the grant of bail, the Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan observed: "The present case travelled two rounds before the trial court, the High Court and this Court. This is now the third round before this Court wherein the appellant is seeking bail in connection with the aforesaid two cases."  The application was filed for seeking bail in connection with a Enforcement Directorate (ED) case registered against the appellant by the ED and First Information Report (FIR) registered against the appellant by the Central Bureau of Investigation (CBI). The judgement was delivered on August 9, 2024. It was authored by Justice Gavai.  Dr. Abhishek Manu Singhvi, Senior Counsel appeared for the appellant and S. V. Raju, Additional Solicitor General (ASG) appeared on behalf of the respondents.

The Supreme Court's 38 page long judgement reads: "The impugned judgment and order dated 21st May 2024 passed by the High Court of Delhi in Bail Application Nos. 1557 and 1559 of 2024 is quashed and set aside; The appellant is directed to be released on bail in connection with ED Case No. HIU-II/14/2022 registered against the appellant by the ED and FIR No. RC0032022A0053 of 2022 registered against the appellant by the CBI...." Reacting to grant of bail by the Court, Sisodia said,"Lawyer is like God for any person in jail, Abhishek Manu Singhvi is also God for me".  

The judgement records Court's opinion in its first order. It reads: "Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years." 

It relied on Court's own decision in Vijay Madanlal Choudhary and Others v. Union of India and Others (2022) to infer that "Section 436A Cr.P.C. should not be construed as a mandate that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period."

It observed: "In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post." It recalled the adage: "procedure is a hand maiden and not a mistress of justice." 

The Court drew on its decision in the case of Prabir Purkayastha v. State (NCT of Delhi) (2024). It reads :
“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala3:—“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution
Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”” Justice Gavai was part of the bench which decided the release of Prabir Purkayastha, the editor of NewsClick. 

Justice Gavai led bench observed: " the question that arises is as to whether the trial court and the High Court have correctly considered the observations made by this Court with regard to right to speedy trial and prolonged period of incarceration. The courts below have rejected the claim of the appellant applying the triple test as contemplated under Section 45 of the PMLA. In our view, this is in ignorance of the observations made by this Court in paragraph 28 of the first order wherein this Court specifically observed that right to bail in cases of delay coupled with incarceration for a long period should be read into Section
439 Cr.P.C. and Section 45 of the PMLA."

He observed: we find that the finding of the learned trial judge that it is the appellant who is responsible
for delaying the trial is not supported by the record. The learned Single Judge of the High Court endorses the finding of the trial court on the ground that the accused persons have taken three months’ time from 19th October 2023 to 19th January 2024 for inspection of “un-relied upon documents” despite repeated directions from the learned trial court to conclude the same expeditiously. It is to be noted that there are around 69,000 pages of documents involved in both the CBI and the ED matters. Taking into consideration the huge magnitude of the documents involved, it cannot be stated that the accused is not entitled to take a reasonable time for inspection of the said documents. In order to avail the right to fair trial, the accused cannot be denied the right to have inspection of the documents including the “un-relied upon documents”. 

His decision noted that the contentions raised by the Additional Solicitor General was self-contradictory and the failure of both the High Court and the trial court. He observed: "We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor."

The Court factored in the Court's decision on a bail application in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another (2024) wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. The Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh (1978), Shri Gurbaksh Singh Sibbia and Others v. State of Punjab (1980), Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar (1980), Union of India v. K.A. Najeeb (2021) and Satender Kumar Antil v. Central Bureau of Investigation and Another (2022). 

After the survey of its own decisions, the Court observed:“If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”

The Court observed: "The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”." 

Justice Gavai observed: "In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial."

It all began with on the basis of a letter dated July 20, 2022 by Vinai Kumar Saxena, the Lieutenant Governor of Delhi alleging irregularities in the framing and implementation of Delhi’s Excise Policy for the year 2021-22, the Director, Ministry of Home Affairs had directed an enquiry into the matter vide Office Memorandum dated July 22, 2022. On February 26 2023, the appellant came to be arrested by the CBI. Subsequently, the appellant was arrested by the ED on March 9, 2023. After investigation, CBI filed charge-sheet on April 25, 2023 for the offences punishable under Sections 7, 7A, 8 and 12 of the Prevention of Corruption (PC) Act, 1988 read with Sections 420, 201 and 120B of the Indian Penal Code (IPC), 1860. Upon completion of investigation, the ED filed a complaint under Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA) on May 4, 2023.