Jammu & Kashmir and Ladakh High Court: The petitioners were accused of being involved in a fraud of Rs 53 crore and were in police custody. Following the investigation, they were charged under Sections 3(5), 61(1), 111(2), and 319(2) of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’). The present petition was filed in respect of two previous petitions, one challenging the rejection of petitioners’ bail application with a prayer of grant of bail and another seeking bail in a case under Section 318(4) BNS. While denying bail to the accused persons, as the investigation was still in progress, a Single Judge Bench of Sanjay Dhar, J. observed that the invocation of Section 111 BNS against the petitioners by the Investigating Agency (‘IA’) was baseless as no charge-sheet was filed against the petitioners in respect of any unlawful activity, including an economic offence, in the past ten years nor was there an assertion that any Court had taken cognizance of such an offence.
Background:
On 13-04-2025, a complaint was filed against a Probationary Officer at J&K Bank, alleging that he lured the complainant into investing in a fraudulent financial scheme via an online trading website called RSN, promising high returns. The complainant transferred Rs 5 lakh to the account of the petitioner’s father but received no returns. Subsequently, the complainant’s account was flagged, and a lien was marked due to suspicious activity. The complainant further alleged that even the petitioner’s sister and her fiancé were involved in these dishonest activities. A first information report (‘FIR’) was registered under Section 318(4) BNS, and the accused were arrested on the same day. The investigation revealed financial transactions of approximately Rs 53 crore across multiple banks, for which the accused failed to provide satisfactory explanations.
Approximately, Rs 4.15 crore was credited to the accused person’s account, Rs 22.31 crore to his sister’s account, Rs 26.43 crore to the account of his sister’s fiancé, and Rs 24.10 crore to his father’s account, with the source of these funds was currently under investigation. As a result, a First Information Report (‘FIR’) was filed at the Cyber Police Station under Section 66-D of the Information Technology Act, 2000 (‘IT Act’), along with Sections 3(5), 61(1), 111(2), and 319(2) BNS. The accused persons were taken into custody and transferred to the Cyber Police Station on 01-05-2025. During the investigation, it was also revealed that the petitioner’s brother, currently pursuing an MBBS degree in Bangladesh, was also involved in the case and that the accused had purchased 2 Kanals of land for Rs 2.5 crore during 2023-2024.
The prosecution argued that the accused persons were involved in serious and grave economic offences, committed through a systematic and organised criminal conspiracy. It was further submitted that because the accused persons were involved in the case registered by Cyber Police Station for similar offences; therefore, Section 111 BNS was invoked against them in the present case. The Income Tax Department was also alerted about the huge online banking transactions, and proceedings under Section 4 of the Prevention of Money Laundering Act, 2002 (‘PMLA’) were also expected to be invoked. The accused persons had sought bail from the Principal Sessions Judge, but their request was denied on 21-05-2025. However, they were enlarged on bail in relation to the case registered with the Cyber Police Station on 17-05-2025, whereafter their custody has been shifted to the present case.
The accused sought bail on the grounds that Section 4 of the PMLA had not yet been added by the IA, but the Sessions Judge denied bail merely on the apprehension that it might be invoked in the future. It was contended that the inclusion of Section 111 BNS lacked any substantive basis, and that Section 318(4) BNS was not applicable in the absence of any allegation regarding the forgery of valuable security. The accused also requested bail on humanitarian grounds, citing his ongoing cancer treatment, his sister’s medical condition, and the old age of his father. The accused further contended that they were entitled to default bail as they were in custody for more than sixty days. The accused persons’ counsel, while relying on Satender Kumar Antil v. CBI, (2022) 10 SCC 51, Sanjay Chandra v. CBI, (2012) 1 SCC 40, and State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, contended that merely because the petitioners were involved in an economic offence, it did not disentitle them to be released on bail.
The IA opposed the bail, primarily on the ground that the petitioners were involved in a grave financial offence and the investigation of the case was still in progress to unearth the magnitude of fraud. It was contended that granting bail to the petitioners would hamper the investigation as some of the associates of the petitioners were still at large.
Analysis and Decision:
The Court noted that petitioners were arrested in the present case on 13-04-2025 and on 01-05-2025, their custody was transferred from the present case to Cyber Police Station after which they were granted bail on 17-05-2025, whereafter their custody was again shifted back to the present case. Therefore, the petitioners had spent around 75 days in custody in the present case. Further out of all the charges pressed on them, only Sections 111 and 316(5) BNS carried punishment of imprisonment for life.
The Court opined that in order to bring an accused’s actions under ‘organised crime’, it must be shown that they engaged in a continuing unlawful activity which might include economic offences, and that they were charge-sheeted more than once before a competent Court in the past ten years, with the Court having taken cognizance for those offences. In the present case, the IA invoked Section 111 BNS based on the FIR registered at the Cyber Police Station. However, there was no material on record, nor any claim by the IA, indicating that the petitioners had ever been charge-sheeted for any prior unlawful activity including an economic offence, or that any Court had taken cognizance thereof. Thus, the Court observed that the invocation of Section 111 BNS lacked basis. Regarding the invocation of Section 316(5) BNS, the Court noted that the petitioner being the Probationary Officer in the J&K Bank, had committed criminal breach of trust reposed on him by the complainant by using his account for suspicious financial transactions. Further, there was material-on-record to show that all the petitioners were working in concert and were part of the conspiracy.
The Court, relying on Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), observed that since the offence under Section 316(5) BNS carried the maximum punishment of imprisonment for life, the provisions of default bail would get attracted only if the petitioners remained in custody beyond ninety days without filing of the charge sheet against them. The Court held that because the period of ninety days was yet to expire, the contention of the petitioners in this regard was not tenable.
Taking note of the accused persons’ contention that mere involvement in an economic offence did not disentitle them to grant of bail. The Court referred to P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, wherein economic offences were recognised as ‘grave offences’ and it was emphasized that while considering bail applications in such cases, the Court must be sensitive to the nature of allegations, further clarifying that bail should not be denied solely because the offence is economic in nature as no such bar is created in the relevant enactment. The Court, therefore, opined that this was not a case where the accused persons, despite being involved in a grave offence, could be enlarged on bail while the investigation was in progress.
The accused persons also contended that grounds of arrest were not furnished to them at the time of arrest, but the Court noted that that neither in the bail application nor in the petition under Section 528 BNSS, the accused persons pleaded that they were not furnished with the grounds of arrest. The accused also cited humanitarian grounds for bail, but the Court observed that the accused was diagnosed with non-metastatic osteosarcoma of the left femur in 2006 and his condition did not deteriorate over the years. Similarly, his sister was also not suffering from any serious ailment. Thus, they were not entitled to bail on medical grounds as well.
Consequently, the Court held that the accused persons were not entitled to be released on bail and dismissed the petitions along with connected CrlM(s).
[Aamir Bashir Magray v. State (UT of J&K), 2025 SCC OnLine J&K 721, decided on 18-07-2025]
Advocates who appeared in this case :
For the Petitioners: Salih Pirzada, Aabid Hamid, Areeb Kawoosa, Gagan Oswal, Advocates.
For the Respondent: Waseem Gul, GA.
