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Punjab-Haryana High Court
Sahil Ghai vs State Of Punjab on 21 April, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:050322
CRM-M-18792-2025 -1-
215
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-18792-2025
DECIDED ON: 21.04.2025
SAHIL GHAI
.....PETITIONER
VERSUS
STATE OF PUNJAB
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Sandeep Sharma, Advocate
for the petitioner.
Mr. Jaspal Singh Guru, AAG Punjab
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court has been invoked for the 2nd time
under Section 483 BNSS, 2023, seeking regular bail to the petitioner in case
FIR No.107 dated 17.06.2023, under Sections 406, 420, 467, 468, 471, 474 of
IPC, 1860 (Section 120-B of IPC added later on) registered at Police Station
Phase-1, District SAS Nagar.
2. Facts
Facts as narrated in the FIR reads as under:-
“Copy Rukka, Station House Officer, Phasel, Jai Hind, Today, ASI alongwith
Sub Inspector Gurdeep Singh No.1367, C-2, Jagjit Singh no. 2148 with
government vehicle bearing number PB-65AH-3661, Driver Simranjit Singh
No.2337 near Cheema Chowk, Airport Road in connection with patrolling
and search of Suspicious Persons, where the secret informer had informed1 of 7
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that Nitin Kumar @ Ghai son of Pawan Kumar, resident of House No.3136,
Street No.2, Clony Mahavir Jain, Sunder Nagar, Ludhiana (Age 32/33
Years) and Sahil Ghai son of Suresh Ghai, resident of House No.42, Near
Lal kothi, Haibowal Kalan, Ludhiana (Age 30/31 years) have opened a fake
office in the name and style of “Overseas Immigration” in Plot No. D/133C,
Manchanda Tower, Fourth Floor, Phase -7, Industrial Area, Mohali and
through social media and advertisement are deceiving the general public for
sending them abroad and under the pretext of sending abroad, they are
preparing forged and fabricated visa stamps by taking huge amount of
money. If we raid at their premises right now, we can take all these people in
custody, who are running their office without getting license Deputy
Commissioner, SAS Nagar and we can get public passports as well as fake
stamps and visas. Nitin Kumar @ Ghai and Sahil Ghai are already indulged
in so many cases so above said persons also booked under sections 406,
420, 467, 468, 471 and 474 of IPC. To register a case in police station,
Constable Simranjit Singh is sent to Police Station so Case is registered
along with sections and file number to be mention. Control room Mohali and
special officers be informed via telephonic conversation. ASI and fellow
officers are sent to Industrial area Phase 7, Near Cheema Chowk, Airport
Road, time 8: 00 PM Gurpartap Singh SI, CIA Staff dated: 17.06.2023. Case
is registered after completion of Investigation and FIR copy is sent to Illaqa
Magistrate and special officers via post.”
3. Contentions:
On behalf of the petitioner
Learned counsel for the petitioner has submitted that the
petitioner has not committed any offence and has been falsely implicated in
the present case. He further contends that the FIR in question has been
registered on the basis of allegations pertaining to the business of
immigration, specifically the operation of a travel agency, which is governed
by the provisions of the Punjab Travel Professionals Regulation Act, 2014.
The petitioner further submits that there has been a clear violation
of the principles of fair and impartial investigation, as the complainant and the
Investigation Officer are the same person, which raises doubts about the
credibility of the prosecution’s case. It is also argued that no private individual
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had approached the investigating agency to lodge a complaint alleging fraud,
cheating, or forgery against the petitioner, yet the investigating agency
proceeded to file the FIR without verifying the allegations from any
concerned party.
Additionally, the petitioner was arrested on 18.06.2023, and
during police remand, no incriminating material was recovered. The petitioner
is presently in judicial custody. It is further submitted that the challan has
already been filed in this case, and as the trial is expected to take a
considerable amount of time to conclude, there is no justifiable reason to
continue the petitioner’s detention as it would not serve any useful purpose.
On behalf of the State
Learned State counsel has filed the custody certificate of the
petitioner, which is taken on record. He submits that that earlier a bail petition
bearing No.CRM-M-196-2024 was dismissed by this Court vide order dated
23.01.2025 (Annexure P-9). Additionally he submits that the petitioner is a
habitual offender, as he is involved in other cases, therefore, prays for
dismissal of the present petition.
4. Analysis
Considering the custody period undergone by the petitioner i.e., 1
year 9 months and 24 days, wherein investigation is complete, challan stands
presented on 15.09.2023, charges have been framed on 20.03.2024 and out of
total 28 prosecution witnesses, only 3 have been examined so far. This Court
is sanguine of the fact that conclusion of trial shall take sufficient time,
therefore, no useful purpose would be served by keeping the petitioner behind
bars for uncertain period, wherein “bail is a rule and jail is an exception” and
it would also violate the principle of right to speedy trial and expeditious
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disposal under Article 21 of Constitution of India, as has been time and again
discussed by this Court, while relying upon the judgment of the Apex Court
passed in Dataram Singh vs. State of Uttar Pradesh & Anr. 2018(2) R.C.R.
(Criminal) 131. Relevant paras of the said judgment is reproduced as under:-
“2. A fundamental postulate of criminal jurisprudence is
the presumption of innocence, meaning thereby that a
person is believed to be innocent until found guilty.
However, there are instances in our criminal law where a
reverse onus has been placed on an accused with regard to
some specific offences but that is another matter and does
not detract from the fundamental postulate in respect of
other offences. Yet another important facet of our criminal
jurisprudence is that the grant of bail is the general rule
and putting a person in jail or in a prison or in a
correction home (whichever expression one may wish to
use) is an exception. Unfortunately, some of these basic
principles appear to have been lost sight of with the result
that more and more persons are being incarcerated and for
longer periods. This does not do any good to our criminal
jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is
entirely the discretion of the judge considering a case but
even so, the exercise of judicial discretion has been
circumscribed by a large number of decisions rendered by
this Court and by every High Court in the country. Yet,
occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do
on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it
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necessary to arrest an accused person during
investigations, a strong case should be made out for
placing that person in judicial custody after a charge sheet
is filed. Similarly, it is important to ascertain whether the
accused was participating in the investigations to the
satisfaction of the investigating officer and was not
absconding or not appearing when required by the
investigating officer. Surely, if an accused is not hiding
from the investigating officer or is hiding due to some
genuine and expressed fear of being victimised, it would be
a factor that a judge would need to consider in an
appropriate case. It is also necessary for the judge to
consider whether the accused is a first-time offender or has
been accused of other offences and if so, the nature of such
offences and his or her general conduct. The poverty or the
deemed indigent status of an accused is also an extremely
important factor and even Parliament has taken notice of it
by incorporating an Explanation to section 436 of the Code
of Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting
section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be
adopted by a judge, while dealing with an application for
remanding a suspect or an accused person to police
custody or judicial custody. There are several reasons for
this including maintaining the dignity of an accused
person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the fact
that there is enormous overcrowding in prisons, leading to
social and other problems as noticed by this Court in In
Re-Inhuman Conditions in 1382 Prisons, 2017(4) RCR
(Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.)
408 : (2017) 10 SCC 658
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6. The historical background of the provision for bail has
been elaborately and lucidly explained in a recent decision
delivered in Nikesh Tara chand Shah v. Union of India,
2017 (13) SCALE 609 going back to the days of the Magna
Carta. In that decision, reference was made to Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 in which
it is observed that it was held way back in Nagendra v.
King-Emperor, AIR 1924 Calcutta 476 that bail is not to be
withheld as a punishment. Reference was also made to
Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein
it was observed that grant of bail is the rule and refusal is
the exception. The provision for bail is therefore age-old
and the liberal interpretation to the provision for bail is
almost a century old, going back to colonial days.
7. However, we should not be understood to mean that bail
should be granted in every case. The grant or refusal of
bail is entirely within the discretion of the judge hearing
the matter and though that discretion is unfettered, it must
be exercised judiciously and in a humane manner and
compassionately. Also, conditions for the grant of bail
ought not to be so strict as to be incapable of compliance,
thereby making the grant of bail illusory.”
Therefore, to elucidate further, this Court is conscious of the
basic and fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the accused
as is the mandate of the Apex court in “Hussainara Khatoon and ors (IV) v.
Home Secretary, State of Bihar, Patna“, (1980) 1 SCC 98. Besides this,
reference can be drawn upon that pre-conviction period of the under-trials
should be as short as possible keeping in view the nature of accusation and the
severity of punishment in case of conviction and the nature of supporting
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evidence, reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
As far as the pendency of other cases and involvement of the
petitioner in other cases is concerned, reliance can be placed upon the order of
this Court rendered in CRM-M-25914-2022 titled as “Baljinder Singh alias
Rock vs. State of Punjab” decided on 02.03.2023, wherein, while referring
Article 21 of the Constitution of India, this Court has held that no doubt, at the
time of granting bail, the criminal antecedents of the petitioner are to be
looked into but at the same time it is equally true that the appreciation of
evidence during the course of trial has to be looked into with reference to the
evidence in that case alone and not with respect to the evidence in the other
pending cases. In such eventuality, strict adherence to the rule of denial of bail
on account of pendency of other cases/convictions in all probability would
lend the petitioner in a situation of denial the concession of bail.
5. Relief:
In view of the discussions made hereinabove, the petitioner is
hereby directed to be released on regular bail on furnishing bail and surety
bonds to the satisfaction of the trial Court/Duty Magistrate, concerned.
In the afore-said terms, the present petition is hereby allowed.
However, it is made clear that anything stated hereinabove shall
not be construed as an expression of opinion on the merits of the case.
(SANDEEP MOUDGIL)
21.04.2025 JUDGE
Meenu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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