IMPORTANT POINT
Release of undertrial prisoners on bail – Accused cannot invoke proviso under Section 479 of BNSS seeking relief on the ground of one third punishment When offences are different as well as when more number of cases are registered against him.

ORDER (CAV)

This successive bail petition is the third petition before this Court and this Court heard and dismissed the earlier petition and the same was challenged before the Apex Court and the Apex Court also dismissed the same and the petitioner again approached this Court and the same was rejected. Thereafter, the petitioner approached the Trial Court once again seeking the relief on different grounds invoking Section 479(1) of BNSS, 2023 and also on the ground that there is a delay in trial and trial has not yet commenced and he has been in custody from two years seven months.

2. It is contended by the learned counsel for the petitioner that maximum punishment is upto seven years and minimum sentence is three years under Section 5 of the Prevention of Money Laundering Act (‘PML Act’ for short) and he was arrested on 14.02.2022 and the very observation of the Trial Court is that another case is filed and it is not a case of multiple case. The reasons of the Trial Court are not correct. The learned counsel contend that the judgment of the Apex Court is very clear that BNSS is applicable.

3. The learned counsel in support of his arguments relies upon the order passed by the Apex Court in Writ petition (Civil) No.406/2013, in Re-inhuman conditions in 1382 prisons and referring paragraph Nos.3 and 4 would contend that the provisions under the BNSS shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before 1st July, 2024 and also contend that it is deemed appropriate to direct immediate implementation of Section 479 of the BNSS by calling upon the Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. The learned counsel also relied upon paragraph Nos.6, 7 and 14 of the same petition with regard to directions given for implementation.

4. The learned counsel also relied upon the judgment of the Apex Court in SLP(Criminal) No.10846/2024 in the case of Badshah Majid Malik v. Directorate of Enforcement and Others and brought to the notice of this Court that an observation is made with regard to the judgment in the case of Vijay Madanlal Chaudhary v. Union of India reported in (2022) SCC Online Sc 926 and corresponding provision of Section 479(1) of BNSS, 2023.

5. The learned counsel also relied upon the judgment of the Apex Court in the case of Manish Sisodia v. Directorate or Enforcement reported in 2024 SCC Online SC 1920 and brought to the notice of this Court paragraph No.49, 50 and 53, wherein discussion was made 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. The learned counsel referring this judgment would contend that the petitioner is in custody from two years seven months and the Court has to take note of that the trial has not been commenced.

6. The learned counsel also relied upon the judgment of the Apex Court in the case of Mohd Muslim Alias Hussain v. State (NCT of Delhi) reported in 2023 SCC Online SC 352 and brought to the notice of this Court paragraph Nos.15 and 16 wherein discussion was made with regard to the statutory restrictions like Section 43-D(5) of the UAPA, cannot fetter a constitutional court’s ability to grant bail on ground of violation of fundamental rights. In paragraph No.16 it was also discussed with regard to Vijay Madanlal Chaudhary (supra) case.

7. The learned counsel also relied upon the judgment of the Apex Court in the case of Hussainara Khatoon and Others v. Home Secretary, State of Bihar reported in (1980) 1 SCC 81, wherein discussion was made with regard to Article 21 of the Constitution.

8. The learned counsel contend that recently other accu