Justice for the Incarcerated: Delhi HC Invokes Section 479 BNSS to Grant Bail amid EOW Scrutiny

In a significant decision addressing the rights of undertrials and the accountability of investigative agencies, the High Court of Delhi has granted regular bail to a petitioner facing charges of fraud, leveraging the recently enacted Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The case, which involved complex allegations of impersonation and financial deception, concluded with Justice Girish Kathpalia not only releasing the accused but issuing a stern warning regarding the transparency and efficacy of the Economic Offences Wing (EOW) of the Delhi Police.

A Web of Deceit: The Allegations

The prosecution alleged that the petitioner, Rishabh Gehlot, orchestrated an elaborate fraud scheme by impersonating a person named 'Shaurya.' The complainant alleged that she and her daughter were induced into parting with large sums of money under various pretexts, including promises of government jobs, investment opportunities, and even the orchestration of fictitious medical emergencies and funerals. The State relied on WhatsApp chats, audio recordings, and bank statements to build its case against the accused.

Investigative Failures and 'Misleading' Reports

The court’s scrutiny turned sharply toward the EOW’s handling of the matter. Justice Kathpalia expressed deep dissatisfaction with a status report filed on July 28, 2025, which referenced audio recordings allegedly implicating the accused. When asked to produce these recordings in open court, the Investigating Officer (IO) had to concede that the recordings pertained to a co-accused, not the petitioner.

Furthermore, the court questioned the selective nature of the investigation. While the petitioner has been in custody since July 2023, other co-accused—including an individual who allegedly forged a government identity card to pose as a CBI officer—remained at large. The court noted that while the investigator holds the prerogative to determine the necessity of an arrest, the failure to address such glaring discrepancies raised significant questions about the integrity of the process.

The Turning Point: Section 479 BNSS

The petitioner’s request for bail hinged on the fact that he was a first-time offender who had already spent more than one-third of the maximum possible sentence for the offences charged. Under Section 479 of the BNSS, the law provides a clear pathway for the release of undertrials who have served a substantial portion of their potential prison term.

Justice Kathpalia emphasized that the trial court—even in the face of serious allegations—cannot ignore the mandate for liberty when the statutory period has been served, particularly when the trial itself has seen extensive delays, including the non-framing of charges.

Key Observations

The judgment serves as a sharp reminder to all stakeholders in the criminal justice system that constitutional rights are not suspended during the investigative phase. Key reflections from Justice Kathpalia included:

• On Investigative Conduct: "At the outset, I must deprecate conduct on the part of the investigating agency in this case, as misleading status report... was filed... making reference to certain audio conversations recorded between the victim and the accused/applicant."
• On the Accused’s Incarceration: "Most important is the period of incarceration already undergone by the accused/applicant, especially in the light of the status of proceedings where till date even charges have not been framed."
• On Systemic Reform: "I find force in the submission... that despite specific directions of the Supreme Court... so many first time offender prisoners... are languishing in jails even after suffering incarceration for a period 1/3rd or at times even more than that of the maximum period for which they can be sentenced."

A Broader Mandate

The court did not stop at granting bail. Recognizing the massive backlog of undertrials entitled to relief under Section 479 BNSS, Justice Kathpalia directed that a copy of the order be sent to the Principal District and Sessions Judges, the Director General (Prisons) of Delhi, the Delhi High Court Legal Services Committee, and the DLSA.

The message is clear: the judiciary is moving toward a more rigorous monitoring of pretrial detention. By ordering strict compliance with the Supreme Court’s guidelines on jail occupancy and undertrial rights, the High Court has signaled that the "process as punishment" must end, ensuring that the wheels of justice turn with both fairness and speed.