SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR

SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO.1849 OF 2021
IN
SPECIAL LEAVE PETITION (CRL.) NO.5191 OF 2021
SATENDER KUMAR ANTIL ... APPELLANT
VERSUS
CENTRAL BUREAU OF INVESTIGATION
& ANR. ... RESPONDENTS
WITH
MISCELLANEOUS APPLICATION DIARY NO.29164 OF 2021
IN
SPECIAL LEAVE PETITION (CRL.) NO.5191 OF 2021
J U D G M E N T
M. M. SUNDRESH, J.
“Liberty is one of the most essential requirements of the modern man. It is
said to be the delicate fruit of a mature civilization. It is the very
quintessence of civilized existence and essential requirement of a modern
man”
 - John E.E.D. in "Essays on Freedom and Power"
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1. Taking note of the continuous supply of cases seeking bail after filing of the
final report on a wrong interpretation of Section 170 of the Code of Criminal
Procedure (hereinafter referred to as “the Code” for short), an endeavour was
made by this Court to categorize the types of offenses to be used as
guidelines for the future. Assistance was sought from Shri Sidharth Luthra,
learned senior counsel, and learned Additional Solicitor General Shri S.V.
Raju. After allowing the application for intervention, an appropriate Order
was passed on 07.10.2021. The same is reproduced as under:
“We have been provided assistance both by Mr. S.V. Raju, learned
Additional Solicitor General and Mr. Sidharth Luthra, learned senior
counsel and there is broad unanimity in terms of the suggestions made by
learned ASG. In terms of the suggestions, the offences have been
categorized and guidelines are sought to be laid down for grant of bail,
without fettering the discretion of the courts concerned and keeping in mind
the statutory provisions.
We are inclined to accept the guidelines and make them a part of the order
of the Court for the benefit of the Courts below. The guidelines are as
under:
Categories/Types of Offences
A) Offences punishable with imprisonment of 7 years or less not falling in
category B & D.
B) Offences punishable with death, imprisonment for life, or imprisonment
for more than 7 years.
 C) Offences punishable under Special Acts containing stringent provisions
for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act,
212(6), etc.
D) Economic offences not covered by Special Acts.
REQUISITE CONDITIONS
1) Not arrested during investigation.
2) Cooperated throughout in the investigation including appearing before
Investigating Officer whenever called.
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(No need to forward such an accused along with the chargesheet (Siddharth
Vs. State of UP, 2021 SCC online SC 615)
CATEGORY A
After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance
through Lawyer.
b) If such an accused does not appear despite service of summons, then
Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons
without insisting physical appearance of accused, if such an application is
moved on behalf of the accused before execution of the NBW on an
undertaking of the accused to appear physically on the next date/s of
hearing.
e) Bail applications of such accused on appearance may be decided w/o the
accused being taken in physical custody or by granting interim bail till the
bail application is decided.
CATEGORY B/D
On appearance of the accused in Court pursuant to process issued bail
application to be decided on merits.
CATEGORY C
Same as Category B & D with the additional condition of compliance of the
provisions of Bail under NDPS S.37, 45 PMLA, 212(6) Companies Act 43
d(5) of UAPA, POSCO etc.”
Needless to say that the category A deals with both police cases and
complaint cases.
The trial Courts and the High Courts will keep in mind the aforesaid
guidelines while considering bail applications. The caveat which has been
put by learned ASG is that where the accused have not cooperated in the
investigation nor appeared before the Investigating Officers, nor answered
summons when the Court feels that judicial custody of the accused is
necessary for the completion of the trial, where further investigation
including a possible recovery is needed, the aforesaid approach cannot give
them benefit, something we agree with.
We may also notice an aspect submitted by Mr. Luthra that while issuing
notice to consider bail, the trial Court is not precluded from granting
interim bail taking into consideration the conduct of the accused during the
investigation which has not warranted arrest. On this aspect also we would
give our imprimatur and naturally the bail application to be ultimately
considered, would be guided by the statutory provisions.
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The suggestions of learned ASG which we have adopted have categorized a
separate set of offences as “economic Offences” not covered by the special
Acts. In this behalf, suffice to say on the submission of Mr. Luthra that this
Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40 has observed in para 39
that in determining whether to grant bail both aspects have to be taken into
account:
 a) seriousness of the charge and
b) severity of punishment.
Thus, it is not as if economic offences are completely taken out of the
aforesaid guidelines but do form a different nature of offences and thus the
seriousness of the charge has to be taken into account but simultaneously,
the severity of the punishment imposed by the statute would also be a
factor.
We appreciate the assistance given by the learned counsels and the positive
approach adopted by the learned ASG.
The SLP stands disposed of and the matter need not be listed further.
A copy of this order be circulated to the Registrars of the different High
Courts to be further circulated to the trial Courts so that the unnecessary
bail matters do not come up to this Court.
This is the only purpose for which we have issued these guidelines, but they
are not fettered on the powers of the Courts.”
2. Two more applications, being M.A. No. 1849/2021 and M.A. Diary
No.29164/2021, were filed seeking a clarification referring to category ‘C’
wherein, inadvertently, Section 45 of the Prevention of Money Laundering
Act, 2002 despite being struck down, found a place, thus came the Order
dated 16.12.2021:
“Learned senior counsels for parties state that they will endeavour to work
out some of the fine tuning which is required to give meaning to the intent
of our order dated 07.10.2021.
We make it clear that our intent was to ease the process of bail and not to
restrict it. The order, in no way, imposes any additional fetters but is in
furtherance of the line of judicial thinking to enlarge the scope of bail.
At this stage, suffice for us to say that while referring to category ‘C’,
inadvertently, Section 45 of Prevention of Money laundering Act (PMLA)
has been mentioned which has been struck down by this Court. Learned
ASG states that an amendment was made and that is pending challenge
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before this Court before a different Bench. That would be a matter to be
considered by that Bench.
We are also putting a caution that merely by categorizing certain offences as
economic offences which may be non-cognizable, it does not mean that a
different meaning is to be given to our order.
We may also clarify that if during the course of investigation, there has been
no cause to arrest the accused, merely because a charge sheet is filed, would
not be an ipso facto cause to arrest the petitioner, an aspect in general
clarified by us in Criminal Appeal No.838/2021 Siddharth v. State of Uttar
Pradesh & Anr. dated 16.08.2021.”
3. Some more applications have been filed seeking certain
directions/clarifications, while impressing this Court to deal with the other
aspects governing the grant of bail. We have heard Shri Amit Desai, learned
senior counsel, Shri Sidharth Luthra, learned senior counsel, and learned
Additional Solicitor General Shri S.V. Raju.
4. Having found that special leave petitions pertaining to different offenses,
particularly on the rejection of bail applications are being filed before this
Court, despite various directions issued from time to time, we deem it
appropriate to undertake this exercise. We do make it clear that all our
discussion along with the directions, are meant to act as guidelines, as each
case pertaining to a bail application is obviously to be decided on its own
merits.
PREVAILING SITUATION
5. Jails in India are flooded with undertrial prisoners. The statistics placed
before us would indicate that more than 2/3rd of the inmates of the prisons
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constitute undertrial prisoners. Of this category of prisoners, majority may
not even be required to be arrested despite registration of a cognizable
offense, being charged with offenses punishable for seven years or less. They
are not only poor and illiterate but also would include women. Thus, there is
a culture of offense being inherited by many of them. As observed by this
Court, it certainly exhibits the mindset, a vestige of colonial India, on the part
of the Investigating Agency, notwithstanding the fact arrest is a draconian
measure resulting in curtailment of liberty, and thus to be used sparingly. In a
democracy, there can never be an impression that it is a police State as both
are conceptually opposite to each other.
DEFINITION OF TRIAL
6. The word ‘trial’ is not explained and defined under the Code. An extended
meaning has to be given to this word for the purpose of enlargement on bail
to include, the stage of investigation and thereafter. Primary considerations
would obviously be different between these two stages. In the former stage,
an arrest followed by a police custody may be warranted for a thorough
investigation, while in the latter what matters substantially is the proceedings
before the Court in the form of a trial. If we keep the above distinction in
mind, the consequence to be drawn is for a more favourable consideration
towards enlargement when investigation is completed, of course, among
other factors.
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7. Similarly, an appeal or revision shall also be construed as a facet of trial when
it comes to the consideration of bail on suspension of sentence.
DEFINITION OF BAIL
8. The term “bail” has not been defined in the Code, though is used very often.
A bail is nothing but a surety inclusive of a personal bond from the accused.
It means the release of an accused person either by the orders of the Court or
by the police or by the Investigating Agency.
9. It is a set of pre-trial restrictions imposed on a suspect while enabling any
interference in the judicial process. Thus, it is a conditional release on the
solemn undertaking by the suspect that he would cooperate both with the
investigation and the trial. The word “bail” has been defined in the Black’s
Law Dictionary, 9th Edn., pg. 160 as: -
“A security such as cash or a bond; esp., security required by a court for the release of
a prisoner who must appear in court at a future time."
10.Wharton’s Law Lexicon, 14th Edn., pg. 105 defines bail as: -
“to set at liberty a person arrested or imprisoned, on security being taken for his
appearance on a day and at a place certain, which security is called bail, because the
party arrested or imprisoned is delivered into the hands of those who bind themselves
or become bail for his due appearance when required, in order that he may be safely
protected from prison, to which they have, if they fear his escape, etc., the legal power
to deliver him."
BAIL IS THE RULE
11. The principle that bail is the rule and jail is the exception has been well
recognised through the repetitive pronouncements of this Court. This again is
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on the touchstone of Article 21 of the Constitution of India. This court in
Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, held that:
“19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the
purpose of granting bail is set out with great felicity as follows: (SCC pp.
586-88, paras 27-30)
“27. It is not necessary to refer to decisions which deal with the right
to ordinary bail because that right does not furnish an exact parallel to
the right to anticipatory bail. It is, however, interesting that as long
back as in 1924 it was held by the High Court of Calcutta
in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In
re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] ,
AIR pp. 479-80 that the object of bail is to secure the attendance of
the accused at the trial, that the proper test to be applied in the solution
of the question whether bail should be granted or refused is whether it
is probable that the party will appear to take his trial and that it is
indisputable that bail is not to be withheld as a punishment. In two
other cases which, significantly, are the “Meerut Conspiracy cases”
observations are to be found regarding the right to bail which deserve
a special mention. In K.N. Joglekar v. Emperor [K.N.
Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 :
1932 Cri LJ 94] it was observed, while dealing with Section 498
which corresponds to the present Section 439 of the Code, that it
conferred upon the Sessions Judge or the High Court wide powers to
grant bail which were not handicapped by the restrictions in the
preceding Section 497 which corresponds to the present Section 437.
It was observed by the Court that there was no hard-and-fast rule and
no inflexible principle governing the exercise of the discretion
conferred by Section 498 and that the only principle which was
established was that the discretion should be exercised judiciously.
In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931
SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p.
358 it was said that it was very unwise to make an attempt to lay down
any particular rules which will bind the High Court, having regard to
the fact that the legislature itself left the discretion of the court
unfettered. According to the High Court, the variety of cases that may
arise from time to time cannot be safely classified and it is dangerous
to make an attempt to classify the cases and to say that in particular
classes a bail may be granted but not in other classes. It was observed
that the principle to be deduced from the various sections in the
Criminal Procedure Code was that grant of bail is the rule and refusal
is the exception. An accused person who enjoys freedom is in a much
better position to look after his case and to properly defend himself
than if he were in custody. As a presumably innocent person he is
therefore entitled to freedom and every opportunity to look after his
own case. A presumably innocent person must have his freedom to
enable him to establish his innocence.
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28. Coming nearer home, it was observed by Krishna Iyer, J.,
in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu v. State,
(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1)
‘1. … the issue [of bail] is one of liberty, justice, public safety
and burden of the public treasury, all of which insist that a
developed jurisprudence of bail is integral to a socially
sensitised judicial process. … After all, personal liberty of an
accused or convict is fundamental, suffering lawful eclipse only
in terms of “procedure established by law”. The last four words
of Article 21 are the life of that human right.’
29. In Gurcharan Singh v. State (UT of Delhi) [Gurcharan
Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41]
it was observed by Goswami, J., who spoke for the Court, that: (SCC
p. 129, para 29)
‘29. … There cannot be an inexorable formula in the matter of
granting bail. The facts and circumstances of each case will
govern the exercise of judicial discretion in granting or
cancelling bail.’
30. In AMERICAN JURISPRUDENCE (2nd, Vol. 8, p. 806, para 39),
it is stated:
‘Where the granting of bail lies within the discretion of the court, the
granting or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. Since the object of the detention
or imprisonment of the accused is to secure his appearance and
submission to the jurisdiction and the judgment of the court, the
primary inquiry is whether a recognizance or bond would effect that
end.’
It is thus clear that the question whether to grant bail or not depends
for its answer upon a variety of circumstances, the cumulative effect
of which must enter into the judicial verdict. Any one single
circumstance cannot be treated as of universal validity or as
necessarily justifying the grant or refusal of bail.”
 xxx xxx xxx
24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights
Chapter of the Constitution is concerned. It deals with nothing less
sacrosanct than the rights of life and personal liberty of the citizens of India
and other persons. It is the only article in the Fundamental Rights Chapter
(along with Article 20) that cannot be suspended even in an emergency [see
Article 359(1) of the Constitution]. At present, Article 21 is the repository of
a vast number of substantive and procedural rights post Maneka
Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC
248].”
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12.Further this Court in Sanjay Chandra v. CBI (2012) 1 SCC 40, has
observed that:
“21. In bail applications, generally, it has been laid down from the earliest
times that the object of bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of liberty must be considered a
punishment, unless it is required to ensure that an accused person will stand
his trial when called upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some unconvicted persons should be held in
custody pending trial to secure their attendance at the trial but in such cases,
“necessity” is the operative test. In this country, it would be quite contrary to
the concept of personal liberty enshrined in the Constitution that any person
should be punished in respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the witnesses if left at liberty,
save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail,
one must not lose sight of the fact that any imprisonment before conviction
has a substantial punitive content and it would be improper for any court to
refuse bail as a mark of disapproval of former conduct whether the accused
has been convicted for it or not or to refuse bail to an unconvicted person for
the purpose of giving him a taste of imprisonment as a lesson.”
PRESUMPTION OF INNOCENCE
13.Innocence of a person accused of an offense is presumed through a legal
fiction, placing the onus on the prosecution to prove the guilt before the
Court. Thus, it is for that agency to satisfy the Court that the arrest made was
warranted and enlargement on bail is to be denied.
14.Presumption of innocence has been acknowledged throughout the world.
Article 14 (2) of the International Covenant on Civil and Political Rights,
1966 and Article 11 of the Universal Declaration of Human Rights
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acknowledge the presumption of innocence, as a cardinal principle of law,
until the individual is proven guilty.
15.Both in Australia and Canada, a prima facie right to a reasonable bail is
recognized based on the gravity of offence. In the United States, it is a
common practice for bail to be a cash deposit. In the United Kingdom, bail is
more likely to consist of a set of restrictions.
16.The Supreme Court of Canada in Corey Lee James Myers v. Her Majesty
the Queen, 2019 SCC 18, has held that bail has to be considered on
acceptable legal parameters. It thus confers adequate discretion on the Court
to consider the enlargement on bail of which unreasonable delay is one of the
grounds. Her Majesty the Queen v. Kevin Antic and Ors., 2017 SCC 27:
“The right not to be denied reasonable bail without just cause is an essential
element of an enlightened criminal justice system. It entrenches the effect
of the presumption of innocence at the pre-trial stage of the criminal trial
process and safeguards the liberty of accused persons. This right has two
aspects: a person charged with an offence has the right not to be denied bail
without just cause and the right to reasonable bail. Under the first aspect, a
provision may not deny bail without “just cause” there is just cause to deny
bail only if the denial occurs in a narrow set of circumstances, and the
denial is necessary to promote the proper functioning of the bail system and
is not undertaken for any purpose extraneous to that system. The second
aspect, the right to reasonable bail, relates to the terms of bail, including the
quantum of any monetary component and other restrictions that are
imposed on the accused for the release period. It protects accused persons
from conditions and forms of release that are unreasonable.
While a bail hearing is an expedited procedure, the bail provisions are
federal law and must be applied consistently and fairly in all provinces and
territories. A central part of the Canadian law of bail consists of the ladder
principle and the authorized forms of release, which are found
in s. 515(1) to (3) of the Criminal Code. Save for exceptions, an
unconditional release on an undertaking is the default position when
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granting release. Alternative forms of release are to be imposed in
accordance with the ladder principle, which must be adhered to strictly:
release is favoured at the earliest reasonable opportunity and on the least
onerous grounds. If the Crown proposes an alternate form of release, it must
show why this form is necessary for a more restrictive form of release to be
imposed. Each rung of the ladder must be considered individually and must
be rejected before moving to a more restrictive form of release. Where the
parties disagree on the form of release, it is an error of law for a judge to
order a more restrictive form without justifying the decision to reject the
less onerous forms. A recognizance with sureties is one of the most onerous
forms of release, and should not be imposed unless all the less onerous
forms have been considered and rejected as inappropriate. It is not
necessary to impose cash bail on accused persons if they or their sureties
have reasonably recoverable assets and are able to pledge those assets to the
satisfaction of the court. A recognizance is functionally equivalent to cash
bail and has the same coercive effect. Cash bail should be relied on only in
exceptional circumstances in which release on a recognizance with sureties
is unavailable. When cash bail is ordered, the amount must not be set so
high that it effectively amounts to a detention order, which means that the
amount should be no higher than necessary to satisfy the concern that
would otherwise warrant detention and proportionate to the means of the
accused and the circumstances of the case. The judge is under a positive
obligation to inquire into the ability of the accused to pay. Terms of release
under s. 515(4) should only be imposed to the extent that they are necessary
to address concerns related to the statutory criteria for detention and to
ensure that the accused is released. They must not be imposed to change an
accused person’s behaviour or to punish an accused person. Where a bail
review is requested, courts must follow the bail review process set out in R.
v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.”
17.We may only state that notwithstanding the special provisions in many of the
countries world-over governing the consideration for enlargement on bail,
courts have always interpreted them on the accepted principle of presumption
of innocence and held in favour of the accused.
18.The position in India is no different. It has been the consistent stand of the
courts, including this Court, that presumption of innocence, being a facet of
Article 21, shall inure to the benefit of the accused. Resultantly burden is
placed on the prosecution to prove the charges to the court of law. The
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weightage of the evidence has to be assessed on the principle of beyond
reasonable doubt.
PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE
“An uncontrolled power is the natural enemy of freedom”
-Harold Laski in ‘Liberty in the Modern State’
19.The Code of Criminal Procedure, despite being a procedural law, is enacted
on the inviolable right enshrined under Article 21 and 22 of the Constitution
of India. The provisions governing clearly exhibited the aforesaid intendment
of the Parliament.
20.Though the word ‘bail’ has not been defined as aforesaid, Section 2A defines
a bailable and non-bailable offense. A non-bailable offense is a cognizable
offense enabling the police officer to arrest without a warrant. To exercise the
said power, the Code introduces certain embargoes by way of restrictions.
Section 41, 41A and 60A of the Code
CHAPTER V
ARREST OF PERSONS
41. When police may arrest without warrant.—(1) Any police officer
may without an order from a Magistrate and without a warrant, arrest any
person—
 (a) who commits, in the presence of a police officer, a cognizable
offence;
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 (b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that
he has committed a cognizable offence punishable with
imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if the
following conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in
any manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such
facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured, and the
police officer shall record while making such arrest, his
reasons in writing:
Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of
this sub-section, record the reasons in writing for not
making the arrest.
(ba) against whom credible information has been received
that he has committed a cognizable offence punishable
with imprisonment for a term which may extend to more
than seven years whether with or without fine or with
death sentence and the police officer has reason to believe
on the basis of that information that such person has
committed the said offence;
(c) who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d) in whose possession anything is found which may
reasonably be suspected to be stolen property and who
may reasonably be suspected of having committed an
offence with reference to such thing; or
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(e) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody; or
(f) who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed
at any place out of India which, if committed in India,
would have been punishable as an offence, and for which
he is, under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India;
or
(h) who, being a released convict, commits a breach of any
rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral,
has been received from another police officer, provided
that the requisition specifies the person to be arrested and
the offence or other cause for which the arrest is to be
made and it appears therefrom that the person might
lawfully be arrested without a warrant by the officer who
issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a noncognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exists of his having
so concerned, shall be arrested except under a warrant or order of a
Magistrate.
41A. Notice of appearance before police officer.—(1) [The police officer
shall], in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice,
he shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion that he
ought to be arrested.
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(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject to
such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.
xxx xxx xxx
60A. Arrest to be made strictly according to the Code.—No arrest shall
be made except in accordance with the provisions of this Code or any other
law for the time being in force providing for arrest.”
21.Section 41 under Chapter V of the Code deals with the arrest of persons.
Even for a cognizable offense, an arrest is not mandatory as can be seen from
the mandate of this provision. If the officer is satisfied that a person has
committed a cognizable offense, punishable with imprisonment for a term
which may be less than seven years, or which may extend to the said period,
with or without fine, an arrest could only follow when he is satisfied that
there is a reason to believe or suspect, that the said person has committed an
offense, and there is a necessity for an arrest. Such necessity is drawn to
prevent the committing of any further offense, for a proper investigation, and
to prevent him/her from either disappearing or tampering with the evidence.
He/she can also be arrested to prevent such person from making any
inducement, threat, or promise to any person according to the facts, so as to
dissuade him from disclosing said facts either to the court or to the police
officer. One more ground on which an arrest may be necessary is when
his/her presence is required after arrest for production before the Court and
the same cannot be assured.
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22.This provision mandates the police officer to record his reasons in writing
while making the arrest. Thus, a police officer is duty-bound to record the
reasons for arrest in writing. Similarly, the police officer shall record reasons
when he/she chooses not to arrest. There is no requirement of the aforesaid
procedure when the offense alleged is more than seven years, among
other reasons.
23.The consequence of non-compliance with Section 41 shall certainly inure to
the benefit of the person suspected of the offense. Resultantly, while
considering the application for enlargement on bail, courts will have to satisfy
themselves on the due compliance of this provision. Any non-compliance
would entitle the accused to a grant of bail.
24.Section 41A deals with the procedure for appearance before the police officer
who is required to issue a notice to the person against whom a reasonable
complaint has been made, or credible information has been received or a
reasonable suspicion exists that he has committed a cognizable offence, and
arrest is not required under Section 41(1). Section 41B deals with the
procedure of arrest along with mandatory duty on the part of the officer.
25.On the scope and objective of Section 41 and 41A, it is obvious that they are
facets of Article 21 of the Constitution. We need not elaborate any further, in
17
light of the judgment of this Court in Arnesh Kumar v. State of Bihar,
(2014) 8 SCC 273:
“7.1. From a plain reading of the aforesaid provision, it is evident that
a person accused of an offence punishable with imprisonment for a
term which may be less than seven years or which may extend to
seven years with or without fine, cannot be arrested by the police
officer only on his satisfaction that such person had committed the
offence punishable as aforesaid. A police officer before arrest, in such
cases has to be further satisfied that such arrest is necessary to prevent
such person from committing any further offence; or for proper
investigation of the case; or to prevent the accused from causing the
evidence of the offence to disappear; or tampering with such evidence
in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the court or the police officer; or unless such
accused person is arrested, his presence in the court whenever
required cannot be ensured. These are the conclusions, which one
may reach based on facts.
7.2. The law mandates the police officer to state the facts and record
the reasons in writing which led him to come to a conclusion covered
by any of the provisions aforesaid, while making such arrest. The law
further requires the police officers to record the reasons in writing for
not making the arrest.
7.3. In pith and core, the police officer before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the
basis of information and material that the accused has committed the
offence. Apart from this, the police officer has to be satisfied further
that the arrest is necessary for one or the more purposes envisaged by
sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.
8. An accused arrested without warrant by the police has the constitutional
right under Article 22(2) of the Constitution of India and Section 57 CrPC
to be produced before the Magistrate without unnecessary delay and in no
circumstances beyond 24 hours excluding the time necessary for the
journey:
8.1. During the course of investigation of a case, an accused can be
kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167
CrPC. The power to authorise detention is a very solemn function. It
affects the liberty and freedom of citizens and needs to be exercised
with great care and caution. Our experience tells us that it is not
18
exercised with the seriousness it deserves. In many of the cases,
detention is authorised in a routine, casual and cavalier manner.
8.2. Before a Magistrate authorises detention under Section 167
CrPC, he has to be first satisfied that the arrest made is legal and in
accordance with law and all the constitutional rights of the person
arrested are satisfied. If the arrest effected by the police officer does
not satisfy the requirements of Section 41 of the Code, Magistrate is
duty-bound not to authorise his further detention and release the
accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that the condition precedent
for arrest under Section 41 CrPC has been satisfied and it is only
thereafter that he will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record his own
satisfaction, may be in brief but the said satisfaction must reflect from
his order. It shall never be based upon the ipse dixit of the police
officer, for example, in case the police officer considers the arrest
necessary to prevent such person from committing any further offence
or for proper investigation of the case or for preventing an accused
from tampering with evidence or making inducement, etc. the police
officer shall furnish to the Magistrate the facts, the reasons and
materials on the basis of which the police officer had reached its
conclusion. Those shall be perused by the Magistrate while
authorising the detention and only after recording his satisfaction in
writing that the Magistrate will authorise the detention of the accused.
8.4. In fine, when a suspect is arrested and produced before a
Magistrate for authorising detention, the Magistrate has to address the
question whether specific reasons have been recorded for arrest and if
so, prima facie those reasons are relevant, and secondly, a reasonable
conclusion could at all be reached by the police officer that one or the
other conditions stated above are attracted. To this limited extent the
Magistrate will make judicial scrutiny.
9. …The aforesaid provision makes it clear that in all cases where the arrest
of a person is not required under Section 41(1) CrPC, the police officer is
required to issue notice directing the accused to appear before him at a
specified place and time. Law obliges such an accused to appear before the
police officer and it further mandates that if such an accused complies with
the terms of notice he shall not be arrested, unless for reasons to be
recorded, the police officer is of the opinion that the arrest is necessary. At
this stage also, the condition precedent for arrest as envisaged under
Section 41 CrPC has to be complied and shall be subject to the same
scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 CrPC which
authorises the police officer to arrest an accused without an order from a
Magistrate and without a warrant are scrupulously enforced, the wrong
19
committed by the police officers intentionally or unwittingly would be
reversed and the number of cases which come to the Court for grant of
anticipatory bail will substantially reduce. We would like to emphasise that
the practice of mechanically reproducing in the case diary all or most of the
reasons contained in Section 41 CrPC for effecting arrest be discouraged
and discontinued.
11. Our endeavour in this judgment is to ensure that police officers do not
arrest the accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed
above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A IPC is
registered but to satisfy themselves about the necessity for arrest
under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing
specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and
furnish the reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
11.4. The Magistrate while authorising detention of the accused shall
peruse the report furnished by the police officer in terms aforesaid
and only after recording its satisfaction, the Magistrate will authorise
detention;
11.5. The decision not to arrest an accused, be forwarded to the
Magistrate within two weeks from the date of the institution of the
case with a copy to the Magistrate which may be extended by the
Superintendent of Police of the district for the reasons to be recorded
in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served
on the accused within two weeks from the date of institution of the
case, which may be extended by the Superintendent of Police of the
district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from
rendering the police officers concerned liable for departmental action,
they shall also be liable to be punished for contempt of court to be
instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by
the Judicial Magistrate concerned shall be liable for departmental
action by the appropriate High Court.
20
12. We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act,
the case in hand, but also such cases where offence is punishable with
imprisonment for a term which may be less than seven years or which may
extend to seven years, whether with or without fine.”
26.We only reiterate that the directions aforesaid ought to be complied with in
letter and spirit by the investigating and prosecuting agencies, while the view
expressed by us on the non-compliance of Section 41 and the consequences
that flow from it has to be kept in mind by the Court, which is expected to be
reflected in the orders.
27.Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step
has been taken to comply with the mandate of Section 41A of the Code. This
Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding
that notwithstanding the existence of a reason to believe qua a police officer,
the satisfaction for the need to arrest shall also be present. Thus, sub-clause
(1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore
both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are
mandated and accordingly are to be recorded by the police officer.
28.It is also brought to our notice that there are no specific guidelines with
respect to the mandatory compliance of Section 41A of the Code. An
endeavour was made by the Delhi High Court while deciding Writ Petition
(C) No. 7608 of 2017 vide order dated 07.02.2018, followed by order dated
28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No.
21
25054 of 2020, wherein not only the need for guidelines but also the effect of
non-compliance towards taking action against the officers concerned was
discussed. We also take note of the fact that a standing order has been passed
by the Delhi Police viz., Standing Order No. 109 of 2020, which provides for
a set of guidelines in the form of procedure for issuance of notices or orders
by the police officers. Considering the aforesaid action taken, in due
compliance with the order passed by the Delhi High Court in Writ Petition
(C) No.7608 of 2017 dated 07.02.2018, this Court has also passed an order in
Writ Petition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of Bihar
to look into the said aspect of an appropriate modification to give effect to the
mandate of Section 41A. A recent judgment has also been rendered on the
same lines by the High Court of Jharkhand in Cr.M.P. No. 1291 of 2021 dated
16.06.2022.
29.Thus, we deem it appropriate to direct all the State Governments and the
Union Territories to facilitate standing orders while taking note of the
standing order issued by the Delhi Police i.e., Standing Order No. 109 of
2020, to comply with the mandate of Section 41A. We do feel that this would
certainly take care of not only the unwarranted arrests, but also the clogging
of bail applications before various Courts as they may not even be required
for the offences up to seven years.
22
30.We also expect the courts to come down heavily on the officers effecting
arrest without due compliance of Section 41 and Section 41A. We express our
hope that the Investigating Agencies would keep in mind the law laid down in
Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of
presumption of innocence, and the safeguards provided under Section 41,
since an arrest is not mandatory. If discretion is exercised to effect such an
arrest, there shall be procedural compliance. Our view is also reflected by the
interpretation of the specific provision under Section 60A of the Code which
warrants the officer concerned to make the arrest strictly in accordance with
the Code.
 Section 87 and 88 of the Code
“87. Issue of warrant in lieu of, or in addition to, summons.—A Court
may, in any case in which it is empowered by this Code to issue a summons
for the appearance of any person, issue, after recording its reasons in
writing, a warrant for his arrest—
(a) if, either before the issue of such summons, or after the issue of
the same but before the time fixed for his appearance, the Court sees
reason to believe that he has absconded or will not obey the
summons; or
(b) if at such time he fails to appear and the summons is proved to
have been duly served in time to admit of his appearing in accordance
therewith and no reasonable excuse is offered for such failure
88. Power to take bond for appearance.—When any person for whose
appearance or arrest the officer presiding in any Court is empowered to
issue a summons or warrant, is present in such Court, such officer may
require such person to execute a bond, with or without sureties, for his
appearance in such Court, or any other Court to which the case may be
transferred for trial.”
23
31.When the courts seek the attendance of a person, either a summons or a
warrant is to be issued depending upon the nature and facts governing the
case. Section 87 gives the discretion to the court to issue a warrant, either in
lieu of or in addition to summons. The exercise of the aforesaid power can
only be done after recording of reasons. A warrant can be either bailable or
non-bailable. Section 88 of the Code empowers the Court to take a bond for
appearance of a person with or without sureties.
32.Considering the aforesaid two provisions, courts will have to adopt the
procedure in issuing summons first, thereafter a bailable warrant, and then a
non-bailable warrant may be issued, if so warranted, as held by this Court in
Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1. Despite
the aforesaid clear dictum, we notice that non-bailable warrants are issued as
a matter of course without due application of mind and against the tenor of
the provision, which merely facilitates a discretion, which is obviously to be
exercised in favour of the person whose attendance is sought for, particularly
in the light of liberty enshrined under Article 21 of the Constitution.
Therefore, valid reasons have to be given for not exercising discretion in
favour of the said person. This Court in Inder Mohan Goswami v. State of
Uttaranchal, (2007) 12 SCC 1, has held that:
“50. Civilised countries have recognised that liberty is the most precious of
all the human rights. The American Declaration of Independence, 1776,
French Declaration of the Rights of Men and the Citizen, 1789, Universal
Declaration of Human Rights and the International Covenant of Civil and
Political Rights, 1966 all speak with one voice—liberty is the natural and
24
inalienable right of every human being. Similarly, Article 21 of our
Constitution proclaims that no one shall be deprived of his liberty except in
accordance with procedure prescribed by law.
51. The issuance of non-bailable warrants involves interference with
personal liberty. Arrest and imprisonment means deprivation of the most
precious right of an individual. Therefore, the courts have to be extremely
careful before issuing non-bailable warrants.
52. Just as liberty is precious for an individual so is the interest of the
society in maintaining law and order. Both are extremely important for the
survival of a civilised society. Sometimes in the larger interest of the public
and the State it becomes absolutely imperative to curtail freedom of an
individual for a certain period, only then the non-bailable warrants should
be issued.
When non-bailable warrants should be issued
53. Non-bailable warrant should be issued to bring a person to court when
summons or bailable warrants would be unlikely to have the desired result.
This could be when:
• it is reasonable to believe that the person will not voluntarily appear
in court; or
• the police authorities are unable to find the person to serve him with
a summon; or
• it is considered that the person could harm someone if not placed
into custody immediately.
54. As far as possible, if the court is of the opinion that a summon will
suffice in getting the appearance of the accused in the court, the summon or
the bailable warrants should be preferred. The warrants either bailable or
non-bailable should never be issued without proper scrutiny of facts and
complete application of mind, due to the extremely serious consequences
and ramifications which ensue on issuance of warrants. The court must very
carefully examine whether the criminal complaint or FIR has not been filed
with an oblique motive.
55. In complaint cases, at the first instance, the court should direct serving
of the summons along with the copy of the complaint. If the accused seem
to be avoiding the summons, the court, in the second instance should issue
bailable warrant. In the third instance, when the court is fully satisfied that
the accused is avoiding the court's proceeding intentionally, the process of
issuance of the non-bailable warrant should be resorted to. Personal liberty
is paramount, therefore, we caution courts at the first and second instance to
refrain from issuing non-bailable warrants.
56. The power being discretionary must be exercised judiciously with
extreme care and caution. The court should properly balance both personal
25
liberty and societal interest before issuing warrants. There cannot be any
straitjacket formula for issuance of warrants but as a general rule, unless an
accused is charged with the commission of an offence of a heinous crime
and it is feared that he is likely to tamper or destroy the evidence or is likely
to evade the process of law, issuance of non-bailable warrants should be
avoided.
57. The court should try to maintain proper balance between individual
liberty and the interest of the public and the State while issuing nonbailable warrant.”
33.On the exercise of discretion under Section 88, this Court in Pankaj Jain v.
Union of India, (2018) 5 SCC 743, has held that:
“12. The main issue which needs to be answered in the present appeal is as
to whether it was obligatory for the Court to release the appellant by
accepting the bond under Section 88 CrPC on the ground that he was not
arrested during investigation or the Court has rightly exercised its
jurisdiction under Section 88 in rejecting the application filed by the
appellant praying for release by accepting the bond under Section 88 CrPC.
13. Section 88 CrPC is a provision which is contained in Chapter VI
“Processes to Compel Appearance” of the Code of Criminal Procedure,
1973. Chapter VI is divided in four sections — A. Summons; B. Warrant of
arrest; C. Proclamation and Attachment; and D. Other rules regarding
processes. Section 88 provides as follows:
“88. Power to take bond for appearance.—When any person
for whose appearance or arrest the officer presiding in any court
is empowered to issue a summons or warrant, is present in such
court, such officer may require such person to execute a bond,
with or without sureties, for his appearance in such court, or any
other court to which the case may be transferred for trial.”
14. We need to first consider as to what was the import of the words “may”
used in Section 88.
xxx xxx xxx
22. Section 88 CrPC does not confer any right on any person, who is
present in a court. Discretionary power given to the court is for the purpose
and object of ensuring appearance of such person in that court or to any
other court into which the case may be transferred for trial. Discretion
given under Section 88 to the court does not confer any right on a person,
who is present in the court rather it is the power given to the court to
facilitate his appearance, which clearly indicates that use of the word “may”
is discretionary and it is for the court to exercise its discretion when
situation so demands. It is further relevant to note that the word used in
26
Section 88 “any person” has to be given wide meaning, which may include
persons, who are not even accused in a case and appeared as witnesses.”
 Section 167(2) of the Code
167. Procedure when investigation cannot be completed in twenty-four
hours.—
(1) xxx xxx xxx
(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has not jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
Provided that—
(a) the Magistrate may authorise the detention of the accused
person, otherwise than in the custody of the police, beyond the
period of fifteen days, if he is satisfied that adequate grounds exist
for doing so, but no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a total period
exceeding,—
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days,
or sixty days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail, and
every person released on bail under this sub-section shall be
deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and subsequently
every time till the accused remains in the custody of the police, but
the Magistrate may extend further detention in judicial custody on
production of the accused either in person or through the medium
of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in
this behalf by the High Court, shall authorise detention in the
custody of the police.
27
Explanation I.—For the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in Para (a), the
accused shall be detained in custody so long as he does not furnish bail.
Explanation II.—If any question arises whether an accused person was
produced before the Magistrate as required under clause (b), the
production of the accused person may be proved by his signature on the
order authorising detention or by the order certified by the Magistrate as
to production of the accused person through the medium of electronic
video linkage, as the case may be.
Provided further that in case of a woman under eighteen years of age,
the detention shall be authorised to be in the custody of a remand home
or recognised social institution.”
34.Section 167(2) was introduced in the year 1978, giving emphasis to the
maximum period of time to complete the investigation. This provision has got
a laudable object behind it, which is to ensure an expeditious investigation
and a fair trial, and to set down a rationalised procedure that protects the
interests of the indigent sections of society. This is also another limb of
Article 21. Presumption of innocence is also inbuilt in this provision. An
investigating agency has to expedite the process of investigation as a suspect
is languishing under incarceration. Thus, a duty is enjoined upon the agency
to complete the investigation within the time prescribed and a failure would
enable the release of the accused. The right enshrined is an absolute and
indefeasible one, inuring to the benefit of suspect. Such a right cannot be
taken away even during any unforeseen circumstances, such as the recent
pandemic, as held by this court in M. Ravindran v. Directorate of Revenue
Intelligence, (2021) 2 SCC 485:
“II. Section 167(2) and the Fundamental Right to Life and Personal
Liberty
28
17. Before we proceed to expand upon the parameters of the right to default
bail under Section 167(2) as interpreted by various decisions of this Court,
we find it pertinent to note the observations made by this Court in Uday
Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra,
(2001) 5 SCC 453 : 2001 SCC (Cri) 760] on the fundamental right to
personal liberty of the person and the effect of deprivation of the same as
follows: (SCC p. 472, para 13)
“13. … Personal liberty is one of the cherished objects of the Indian
Constitution and deprivation of the same can only be in accordance
with law and in conformity with the provisions thereof, as stipulated
under Article 21 of the Constitution. When the law provides that the
Magistrate could authorise the detention of the accused in custody up
to a maximum period as indicated in the proviso to sub-section (2) of
Section 167, any further detention beyond the period without filing of
a challan by the investigating agency would be a subterfuge and
would not be in accordance with law and in conformity with the
provisions of the Criminal Procedure Code, and as such, could be
violative of Article 21 of the Constitution.”
17.1. Article 21 of the Constitution of India provides that “no person shall
be deprived of his life or personal liberty except according to procedure
established by law”. It has been settled by a Constitution Bench of this
Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of
India, (1978) 1 SCC 248], that such a procedure cannot be arbitrary, unfair
or unreasonable. The history of the enactment of Section 167(2) CrPC and
the safeguard of “default bail” contained in the proviso thereto is
intrinsically linked to Article 21 and is nothing but a legislative exposition
of the constitutional safeguard that no person shall be detained except in
accordance with rule of law.
17.2. Under Section 167 of the Code of Criminal Procedure, 1898 (“the
1898 Code”) which was in force prior to the enactment of the CrPC, the
maximum period for which an accused could be remanded to custody,
either police or judicial, was 15 days. However, since it was often
unworkable to conclude complicated investigations within 15 days, a
practice arose wherein investigating officers would file “preliminary
charge-sheets” after the expiry of the remand period. The State would then
request the Magistrate to postpone commencement of the trial and authorise
further remand of the accused under Section 344 of the 1898 Code till the
time the investigation was completed and the final charge-sheet was filed.
The Law Commission of India in Report No. 14 on Reforms of the Judicial
Administration (Vol. II, 1948, pp. 758-760) pointed out that in many cases
the accused were languishing for several months in custody without any
final report being filed before the courts. It was also pointed out that there
was conflict in judicial opinion as to whether the Magistrate was bound to
release the accused if the police report was not filed within 15 days.
17.3. Hence the Law Commission in Report No. 14 recommended the need
for an appropriate provision specifically providing for continued remand
29
after the expiry of 15 days, in a manner that “while meeting the needs of a
full and proper investigation in cases of serious crime, will still safeguard
the liberty of the person of the individual”. Further, that the legislature
should prescribe a maximum time period beyond which no accused could
be detained without filing of the police report before the Magistrate. It was
pointed out that in England, even a person accused of grave offences such
as treason could not be indefinitely detained in prison till commencement
of the trial.
17.4. The suggestion made in Report No. 14 was reiterated by the Law
Commission in Report No. 41 on The Code of Criminal Procedure,
1898 (Vol. I, 1969, pp. 76-77). The Law Commission re-emphasised the
need to guard against the misuse of Section 344 of the 1898 Code by filing
“preliminary reports” for remanding the accused beyond the statutory
period prescribed under Section 167. It was pointed out that this could lead
to serious abuse wherein “the arrested person can in this manner be kept in
custody indefinitely while the investigation can go on in a leisurely
manner”. Hence the Commission recommended fixing of a maximum timelimit of 60 days for remand. The Commission considered the reservation
expressed earlier in Report No. 37 that such an extension may result in the
60-day period becoming a matter of routine. However, faith was expressed
that proper supervision by the superior courts would help circumvent the
same.
17.5. The suggestions made in Report No. 41 were taken note of and
incorporated by the Central Government while drafting the Code of
Criminal Procedure Bill in 1970. Ultimately, the 1898 Code was replaced
by the present CrPC. The Statement of Objects and Reasons of the CrPC
provides that the Government took the following important considerations
into account while evaluating the recommendations of the Law
Commission:
“3. The recommendations of the Commission were examined
carefully by the Government, keeping in view, among others, the
following basic considerations:
(i) an accused person should get a fair trial in accordance with
the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation
and trial which is harmful not only to the individuals involved
but also to society; and
(iii) the procedure should not be complicated and should, to the
utmost extent possible, ensure fair deal to the poorer sections of
the community.”
17.6. It was in this backdrop that Section 167(2) was enacted within the
present day CrPC, providing for time-limits on the period of remand of the
accused, proportionate to the seriousness of the offence committed, failing
which the accused acquires the indefeasible right to bail. As is evident from
30
the recommendations of the Law Commission mentioned supra, the intent
of the legislature was to balance the need for sufficient time-limits to
complete the investigation with the need to protect the civil liberties of the
accused. Section 167(2) provides for a clear mandate that the investigative
agency must collect the required evidence within the prescribed time
period, failing which the accused can no longer be detained. This ensures
that the investigating officers are compelled to act swiftly and efficiently
without misusing the prospect of further remand. This also ensures that the
court takes cognizance of the case without any undue delay from the date of
giving information of the offence, so that society at large does not lose faith
and develop cynicism towards the criminal justice system.
17.7. Therefore, as mentioned supra, Section 167(2) is integrally linked to
the constitutional commitment under Article 21 promising protection of life
and personal liberty against unlawful and arbitrary detention, and must be
interpreted in a manner which serves this purpose. In this regard we find it
useful to refer to the decision of the three-Judge Bench of this Court
in Rakesh Kumar Paul v. State of Assam [Rakesh Kumar Paul v. State of
Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , which laid down
certain seminal principles as to the interpretation of Section 167(2) CrPC
though the questions of law involved were somewhat different from the
present case. The questions before the three-Judge Bench in Rakesh Kumar
Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1
SCC (Cri) 401] were whether, firstly, the 90-day remand extension under
Section 167(2)(a)(i) would be applicable in respect of offences where the
maximum period of imprisonment was 10 years, though the minimum
period was less than 10 years. Secondly, whether the application for bail
filed by the accused could be construed as an application for default bail,
even though the expiry of the statutory period under Section 167(2) had not
been specifically pleaded as a ground for bail. The majority opinion held
that the 90-day limit is only available in respect of offences where
a minimum ten year' imprisonment period is stipulated, and that the oral
arguments for default bail made by the counsel for the accused before the
High Court would suffice in lieu of a written application. This was based on
the reasoning that the court should not be too technical in matters of
personal liberty. Madan B. Lokur, J. in his majority opinion, pertinently
observed as follows: (SCC pp. 95-96 & 99, paras 29, 32 & 41)
“29. Notwithstanding this, the basic legislative intent of completing
investigations within twenty-four hours and also within an otherwise
time-bound period remains unchanged, even though that period has
been extended over the years. This is an indication that in addition to
giving adequate time to complete investigations, the legislature has
also and always put a premium on personal liberty and has always
felt that it would be unfair to an accused to remain in custody for a
prolonged or indefinite period. It is for this reason and also to hold
the investigating agency accountable that time-limits have been laid
down by the legislature. …
xxx xxx xxx
31
32. …Such views and opinions over a prolonged period have
prompted the legislature for more than a century to ensure expeditious
conclusion of investigations so that an accused person is not
unnecessarily deprived of his or her personal liberty by remaining in
prolonged custody for an offence that he or she might not even have
committed. In our opinion, the entire debate before us must also be
looked at from the point of view of expeditious conclusion of
investigations and from the angle of personal liberty and not from a
purely dictionary or textual perspective as canvassed by the learned
counsel for the State.
xxx xxx xxx
41. We take this view keeping in mind that in matters of personal
liberty and Article 21 of the Constitution, it is not always advisable to
be formalistic or technical. The history of the personal liberty
jurisprudence of this Court and other constitutional courts includes
petitions for a writ of habeas corpus and for other writs being
entertained even on the basis of a letter addressed to the Chief Justice
or the Court.”
(emphasis supplied)
Therefore, the courts cannot adopt a rigid or formalistic approach
whilst considering any issue that touches upon the rights contained in
Article 21.
17.8. We may also refer with benefit to the recent judgment of this Court
in S. Kasi v. State [S. Kasi v. State, (2021) 12 SCC 1 : 2020 SCC OnLine
SC 529], wherein it was observed that the indefeasible right to default bail
under Section 167(2) is an integral part of the right to personal liberty under
Article 21, and the said right to bail cannot be suspended even during a
pandemic situation as is prevailing currently. It was emphasised that the
right of the accused to be set at liberty takes precedence over the right of
the State to carry on the investigation and submit a charge-sheet.
17.9. Additionally, it is well-settled that in case of any ambiguity in the
construction of a penal statute, the courts must favour the interpretation
which leans towards protecting the rights of the accused, given the
ubiquitous power disparity between the individual accused and the State
machinery. This is applicable not only in the case of substantive penal
statutes but also in the case of procedures providing for the curtailment of
the liberty of the accused.
17.10. With respect to the CrPC particularly, the Statement of Objects and
Reasons (supra) is an important aid of construction. Section 167(2) has to
be interpreted keeping in mind the threefold objectives expressed by the
legislature, namely, ensuring a fair trial, expeditious investigation and trial,
and setting down a rationalised procedure that protects the interests of
32
indigent sections of society. These objects are nothing but subsets of the
overarching fundamental right guaranteed under Article 21.
17.11. Hence, it is from the perspective of upholding the fundamental right
to life and personal liberty under Article 21 that we shall clarify and
reconcile the various judicial interpretations of Section 167(2) for the
purpose of resolving the dilemma that has arisen in the present case.”
35.As a consequence of the right flowing from the said provision, courts will
have to give due effect to it, and thus any detention beyond this period would
certainly be illegal, being an affront to the liberty of the person concerned.
Therefore, it is not only the duty of the investigating agency but also the
courts to see to it that an accused gets the benefit of Section 167 (2).
Section 170 of the Code:
“170. Cases to be sent to Magistrate when evidence is sufficient.—(1) If,
upon an investigation under this Chapter, it appears to the officer in charge
of the police station that there is sufficient evidence or reasonable ground as
aforesaid, such officer shall forward the accused under custody to a
Magistrate empowered to take cognizance of the offence upon a police
report and to try the accused or commit him for trial, or, if the offence is
bailable and the accused is able to give security, shall take security from him
for his appearance before such Magistrate on a day fixed and for his
attendance from day to day before such Magistrate until otherwise directed.”
36.The scope and ambit of Section 170 has already been dealt with by this Court
in Siddharth v. State of U.P., (2021) 1 SCC 676. This is a power which is to
be exercised by the court after the completion of the investigation by the
agency concerned. Therefore, this is a procedural compliance from the point
of view of the court alone, and thus the investigating agency has got a limited
role to play. In a case where the prosecution does not require custody of the
33
accused, there is no need for an arrest when a case is sent to the magistrate
under Section 170 of the Code. There is not even a need for filing a bail
application, as the accused is merely forwarded to the court for the framing of
charges and issuance of process for trial. If the court is of the view that there
is no need for any remand, then the court can fall back upon Section 88 of the
Code and complete the formalities required to secure the presence of the
accused for the commencement of the trial. Of course, there may be a
situation where a remand may be required, it is only in such cases that the
accused will have to be heard. Therefore, in such a situation, an opportunity
will have to be given to the accused persons, if the court is of the prima facie
view that the remand would be required. We make it clear that we have not
said anything on the cases in which the accused persons are already in
custody, for which, the bail application has to be decided on its own merits.
Suffice it to state that for due compliance of Section 170 of the Code, there is
no need for filing of a bail application. This Court in Siddharth v. State of
U.P., (2021) 1 SCC 676, has held that:
“There are judicial precedents available on the interpretation of the
aforesaid provision albeit of the Delhi High Court.
5. In High Court of Delhi v. CBI [High Court of Delhi v. CBI, 2004 SCC
OnLine Del 53 : (2004) 72 DRJ 629], the Delhi High Court dealt with an
argument similar to the contention of the respondent that Section 170 CrPC
prevents the trial court from taking a charge-sheet on record unless the
accused is taken into custody. The relevant extracts are as under : (SCC
OnLine Del paras 15-16 & 19-20)
“15. Word “custody” appearing in this section does not contemplate
either police or judicial custody. It merely connotes the presentation of
accused by the investigating officer before the Court at the time of
34
filing of the charge-sheet whereafter the role of the Court starts. Had it
not been so the investigating officer would not have been vested with
powers to release a person on bail in a bailable offence after finding
that there was sufficient evidence to put the accused on trial and it
would have been obligatory upon him to produce such an accused in
custody before the Magistrate for being released on bail by the Court.
16. In case the police/investigating officer thinks it unnecessary to
present the accused in custody for the reason that the accused would
neither abscond nor would disobey the summons as he has been
cooperating in investigation and investigation can be completed
without arresting him, the IO is not obliged to produce such an
accused in custody.
xxx xxx xxx
19. It appears that the learned Special Judge was labouring under a
misconception that in every non-bailable and cognizable offence the
police is required to invariably arrest a person, even if it is not
essential for the purpose of investigation.
20. Rather the law is otherwise. In normal and ordinary course the
police should always avoid arresting a person and sending him to jail,
if it is possible for the police to complete the investigation without his
arrest and if every kind of cooperation is provided by the accused to
the investigating officer in completing the investigation. It is only in
cases of utmost necessity, where the investigation cannot be
completed without arresting the person, for instance, a person may be
required for recovery of incriminating articles or weapon of offence or
for eliciting some information or clue as to his accomplices or any
circumstantial evidence, that his arrest may be necessary. Such an
arrest may also be necessary if the investigating officer concerned or
officer in charge of the police station thinks that presence of the
accused will be difficult to procure because of grave and serious
nature of crime as the possibility of his absconding or disobeying the
process or fleeing from justice cannot be ruled out.”
6. In a subsequent judgment the Division Bench of the Delhi High Court
in High Court of Delhi v. State [High Court of Delhi v. State, 2018 SCC
OnLine Del 12306 : (2018) 254 DLT 641] relied on these observations
in High Court of Delhi [High Court of Delhi v. CBI, 2004 SCC OnLine Del
53 : (2004) 72 DRJ 629] and observed that it is not essential in every case
involving a cognizable and non-bailable offence that an accused be taken
into custody when the charge-sheet/final report is filed.
7. The Delhi High Court is not alone in having adopted this view and other
High Courts apparently have also followed suit on the proposition that
criminal courts cannot refuse to accept a charge-sheet simply because the
accused has not been arrested and produced before the court.
35
8. In Deendayal Kishanchand v. State of Gujarat [Deendayal
Kishanchand v. State of Gujarat, 1982 SCC OnLine Guj 172 : 1983 Cri LJ
1583], the High Court observed as under : (SCC OnLine Guj paras 2 & 8)
“2. … It was the case of the prosecution that two accused i.e. present
Petitioners 4 and 5, who are ladies, were not available to be produced
before the court along with the charge-sheet, even though earlier they
were released on bail. Therefore, as the court refused to accept the
charge-sheet unless all the accused are produced, the charge-sheet
could not be submitted, and ultimately also, by a specific letter, it
seems from the record, the charge-sheet was submitted without
Accused 4 and 5. This is very clear from the evidence on record.
xxx xxx xxx
8. I must say at this stage that the refusal by criminal courts either
through the learned Magistrate or through their office staff to accept
the charge-sheet without production of the accused persons is not
justified by any provision of law. Therefore, it should be impressed
upon all the courts that they should accept the charge-sheet whenever
it is produced by the police with any endorsement to be made on the
charge-sheet by the staff or the Magistrate pertaining to any omission
or requirement in the charge-sheet. But when the police submits the
charge-sheet, it is the duty of the court to accept it especially in view
of the provisions of Section 468 of the Code which creates a limitation
of taking cognizance of offence. Likewise, police authorities also
should impress on all police officers that if charge-sheet is not
accepted for any such reason, then attention of the Sessions Judge
should be drawn to these facts and get suitable orders so that such
difficulties would not arise henceforth.”
9. We are in agreement with the aforesaid view of the High Courts and
would like to give our imprimatur to the said judicial view. It has rightly
been observed on consideration of Section 170 CrPC that it does not impose
an obligation on the officer-in-charge to arrest each and every accused at the
time of filing of the charge-sheet. We have, in fact, come across cases where
the accused has cooperated with the investigation throughout and yet on the
charge-sheet being filed non-bailable warrants have been issued for his
production premised on the requirement that there is an obligation to arrest
the accused and produce him before the court. We are of the view that if the
investigating officer does not believe that the accused will abscond or
disobey summons he/she is not required to be produced in custody. The
word “custody” appearing in Section 170 CrPC does not contemplate either
police or judicial custody but it merely connotes the presentation of the
accused by the investigating officer before the court while filing the chargesheet.
10. We may note that personal liberty is an important aspect of our
constitutional mandate. The occasion to arrest an accused during
investigation arises when custodial investigation becomes necessary or it is
36
a heinous crime or where there is a possibility of influencing the witnesses
or accused may abscond. Merely because an arrest can be made because it is
lawful does not mandate that arrest must be made. A distinction must be
made between the existence of the power to arrest and the justification for
exercise of it [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994
SCC (Cri) 1172] . If arrest is made routine, it can cause incalculable harm to
the reputation and self-esteem of a person. If the investigating officer has no
reason to believe that the accused will abscond or disobey summons and
has, in fact, throughout cooperated with the investigation we fail to
appreciate why there should be a compulsion on the officer to arrest the
accused.
11. We are, in fact, faced with a situation where contrary to the observations
in Joginder Kumar case [Joginder Kumar v. State of U.P., (1994) 4 SCC
260 : 1994 SCC (Cri) 1172] how a police officer has to deal with a scenario
of arrest, the trial courts are stated to be insisting on the arrest of an accused
as a prerequisite formality to take the charge-sheet on record in view of the
provisions of Section 170 CrPC. We consider such a course misplaced and
contrary to the very intent of Section 170 CrPC.”
Section 204 and 209 of the Code
“204. Issue of process.—(1) If in the opinion of a Magistrate taking
cognizance of an offence there is sufficient ground for proceeding, and the
case appears to be—
(a) a summons-case, he shall issue his summons for the attendance of
the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a
summons, for causing the accused to be brought or to appear at a certain
time before such Magistrate or (if he has no jurisdiction himself) some
other Magistrate having jurisdiction.”
“209. Commitment of case to Court of Session when offence is triable
exclusively by it.—When in a case instituted on a police report or
otherwise, the accused appears or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the Court
of Session, he shall—
(a) commit, after complying with the provisions of section 207 or
section 208, as the case may be, the case to the Court of Session, and
subject to the provisions of this Code relating to bail, remand the
accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the
accused to custody during, and until the conclusion of, the trial;”
37
37.Section 204 of the Code speaks of issue of process while commencing the
proceeding before the Magistrate. Sub-section (1)(b) gives a discretion to a
Magistrate qua a warrant case, either to issue a warrant or a summons. As this
provision gives a discretion, and being procedural in nature, it is to be
exercised as a matter of course by following the prescription of Section 88 of
the Code. Thus, issuing a warrant may be an exception in which case the
Magistrate will have to give reasons.
38. Section 209 of the Code pertains to commitment of a case to a Court of
Sessions by the Magistrate when the offence is triable exclusively by the said
court. Sub-sections (a) and (b) of Section 209 of the Code give ample power
to the Magistrate to remand a person into custody during or until the
conclusion of the trial. Since the power is to be exercised by the Magistrate
on a case-to-case basis, it is his wisdom in either remanding an accused or
granting bail. Even here, it is judicial discretion which the Magistrate has to
exercise. As we have already dealt with the definition of bail, which in simple
parlance means a release subject to the restrictions and conditions, a
Magistrate can take a call even without an application for bail if he is inclined
to do so. In such a case he can seek a bond or surety, and thus can take
recourse to Section 88. However, if he is to remand the case for the reasons to
be recorded, then the said person has to be heard. Here again, we make it
38
clear that there is no need for a separate application and Magistrate is
required to afford an opportunity and to pass a speaking order on bail.
Section 309 of the Code
39.This provision has been substituted by Act 13 of 2013 and Act 22 of 2018. It
would be appropriate to reproduce the said provision for better appreciation:
“309. Power to postpone or adjourn proceedings. —(1) In every inquiry
or trial the proceedings shall be continued from day-to-day until all the
witnesses in attendance have been examined, unless the Court finds the
adjournment of the same beyond the following day to be necessary for
reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under
Section 376, [Section 376A, Section 376AB, Section 376B, Section 376C,
Section 376D, Section 376DA or Section 376DB of the Indian Penal Code
(45 of 1860), the inquiry or trial shall] be completed within a period of two
months from the date of filing of the charge sheet.
(2) If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to postpone the
commencement of, or adjourn, any inquiry or trial, it may, from time to
time, for reasons to be recorded, postpone or adjourn the same on such
terms as it thinks fit, for such time as it considers reasonable, and may by a
warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody
under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment
or postponement shall be granted, without examining them, except for
special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only
of enabling the accused person to show cause against the sentence proposed
to be imposed on him.
[Provided also that—
(a) no adjournment shall be granted at the request of a party,
except where the circumstances are beyond the control of that
party;
(b) the fact that the pleader of a party is engaged in another
Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader
is not present or the party or his pleader though present in
Court, is not ready to examine or cross-examine the witness, the
Court may, if thinks fit, record the statement of the witness and
39
pass such orders as it thinks fit dispensing with the
examination-in-chief or cross-examination of the witness, as the
case may be.]
Explanation 1.—If sufficient evidence has been obtained to raise a
suspicion that the accused may have committed an offence, and it appears
likely that further evidence may be obtained by a remand, this is a
reasonable cause for a remand.
Explanation 2.—The terms on which an adjournment or postponement may
be granted include, in appropriate cases, the payment of costs by the
prosecution or the accused.”
40.Sub-section (1) mandates courts to continue the proceedings on a day-to-day
basis till the completion of the evidence. Therefore, once a trial starts, it
should reach the logical end. Various directions have been issued by this
Court not to give unnecessary adjournments resulting in the witnesses being
won over. However, the non-compliance of Section 309 continues with gay
abandon. Perhaps courts alone cannot be faulted as there are multiple reasons
that lead to such adjournments. Though the section makes adjournments and
that too not for a longer time period as an exception, they become the norm.
We are touching upon this provision only to show that any delay on the part
of the court or the prosecution would certainly violate Article 21. This is
more so when the accused person is under incarceration. This provision must
be applied inuring to the benefit of the accused while considering the
application for bail. Whatever may be the nature of the offence, a prolonged
trial, appeal or a revision against an accused or a convict under custody or
incarceration, would be violative of Article 21. While the courts will have to
endeavour to complete at least the recording of the evidence of the private
40
witnesses, as indicated by this Court on quite a few occasions, they shall
make sure that the accused does not suffer for the delay occasioned due to no
fault of his own.
41.Sub-section (2) has to be read along with sub-section (1). The proviso to
sub-section (2) restricts the period of remand to a maximum of 15 days at a
time. The second proviso prohibits an adjournment when the witnesses are in
attendance except for special reasons, which are to be recorded. Certain
reasons for seeking adjournment are held to be permissible. One must read
this provision from the point of view of the dispensation of justice. After all,
right to a fair and speedy trial is yet another facet of Article 21. Therefore,
while it is expected of the court to comply with Section 309 of the Code to
the extent possible, an unexplained, avoidable and prolonged delay in
concluding a trial, appeal or revision would certainly be a factor for the
consideration of bail. This we hold so notwithstanding the beneficial
provision under Section 436A of the Code which stands on a different
footing.
Precedents:
 Hussainara Khatoon & Ors. v Home Secretary, State Of Bihar, 1980
(1) SCC 81:
“2. Though we issued notice to the State of Bihar two weeks ago, it is
unfortunate that on February 5, 1979, no one has appeared on behalf of the
State and we must, therefore, at this stage proceed on the basis that the
allegations contained in the issues of the Indian Express dated January 8
41
and 9, 1979 which are incorporated in the writ petition are correct. The
information contained in these newspaper cuttings is most distressing and it
is sufficient to stir the conscience and disturb the equanimity of any socially
motivated lawyer or judge. Some of the undertrial prisoners whose names
are given in the newspaper cuttings have been in jail for as many as 5, 7 or
9 years and a few of them, even more than 10 years, without their trial
having begun. What faith can these lost souls have in the judicial system
which denies them a bare trial for so many years and keeps them behind
bars, not because they are guilty, but because they are too poor to afford
bail and the courts have no time to try them. It is a travesty of justice that
many poor accused, “little Indians, are forced into long cellular servitude
for little offences” because the bail procedure is beyond their meagre means
and trials don't commence and even if they do, they never conclude. There
can be little doubt, after the dynamic interpretation placed by this Court on
Article 21 in Maneka Gandhi v. Union of India [(1978) 2 SCR 621 : (1978)
1 SCC 248] that a procedure which keeps such large numbers of people
behind bars without trial so long cannot possibly be regarded as
‘reasonable, just or fair”’ so as to be in conformity with the requirement of
that article. It is necessary, therefore, that the law as enacted by the
legislature and as administered by the courts must radically change its
approach to pre-trial detention and ensure ‘reasonable, just and fair’
procedure which has creative connotation after Maneka Gandhi case
[(1978) 2 SCR 621 : (1978) 1 SCC 248].
3. Now, one reason why our legal and judicial system continually denies
justice to the poor by keeping them for long years in pre-trial detention is
our highly unsatisfactory bail system. It suffers from a property oriented
approach which seems to proceed on the erroneous assumption that risk of
monetary loss is the only deterrent against fleeing from justice. The Code of
Criminal Procedure, even after its re-enactment, continues to adopt the
same antiquated approach as the earlier Code enacted towards the end of
the last century and where an accused is to be released on his personal
bond, it insists that the bond should contain a monetary obligation requiring
the accused to pay a sum of money in case he fails to appear at the trial.
Moreover, as if this were not sufficient deterrent to the poor, the courts
mechanically and as a matter of course insist that the accused should
produce sureties who will stand bail for him and these sureties must again
establish their solvency to be able to pay up the amount of the bail in case
the accused fails to appear to answer the charge. This system of bails
operates very harshly against the poor and it is only the non-poor who are
able to take advantage of it by getting themselves released on bail. The poor
find it difficult to furnish bail even without sureties because very often the
amount of the bail fixed by the courts is so unrealistically excessive that in
a majority of cases the poor are unable to satisfy the police or the
Magistrate about their solvency for the amount of the bail and where the
bail is with sureties, as is usually the case, it becomes an almost impossible
task for the poor to find persons sufficiently solvent to stand as sureties.
The result is that either they are fleeced by the police and revenue officials
or by touts and professional sureties and sometimes they have even to incur
42
debts for securing their release or, being unable to obtain release, they have
to remain in jail until such time as the court is able to take up their cases for
trial, leading to grave consequences, namely, (1) though presumed innocent,
they are subjected to psychological and physical deprivations of jail life, (2)
they are prevented from contributing to the preparation of their defence,
and (3) they lose their job, if they have one, and are deprived of an
opportunity to work to support themselves and their family members with
the result that the burden of their detention almost invariably falls heavily
on the innocent members of the family. It is here that the poor find our legal
and judicial system oppressive and heavily weighted against them and a
feeling of frustration and despair occurs upon them as they find that they
are helplessly in a position of inequality with the non-poor. The Legal Aid
Committee appointed by the Government of Gujarat under the
chairmanship of one of us, Mr Justice Bhagwati, emphasised this glaring
inequality in the following words:
The bail system, as we see it administered in the criminal courts
today, is extremely unsatisfactory and needs drastic change. In the
first place it is virtually impossible to translate risk of non-appearance
by the accused into precise monetary terms and even its basic premise
that risk of financial loss is necessary to prevent the accused from
fleeing is of doubtful validity. There are several considerations which
deter an accused from running away from justice and risk of financial
loss is only one of them and that too not a major one. The experience
of enlightened Bail Projects in the United States such as Manhattan
Bail Project and D.C. Bail Project shows that even without monetary
bail it has been possible to secure the presence of the accused at the
trial in quite a large number of cases. Moreover, the bail system
causes discrimination against the poor since the poor would not be
able to furnish bail on account of their poverty while the wealthier
persons otherwise similarly situate would be able to secure their
freedom because they can afford to furnish bail. This discrimination
arises even if the amount of the bail is fixed by the Magistrate is not
high, for a large majority of those who are brought before the courts
in criminal cases are so poor that they would find it difficult to furnish
bail even in a small amount.
The Gujarat Committee also pointed out how the practice of fixing the
amount of bail with reference to the nature of the charge without taking into
account relevant factors, such as the individual financial circumstances of
the accused and the probability of his fleeing before trial, is harsh and
oppressive and discriminates against the poor:
The discriminatory nature of the bail system becomes all the more
acute by reason of the mechanical way in which it is customarily
operated. It is no doubt true that theoretically the Magistrate has
broad discretion in fixing the amount of bail but in practice it seems
that the amount of bail depends almost always on the seriousness of
the offence. It is fixed according to a schedule related to the nature of
the charge. Little weight is given either to the probability that the
accused will attempt to flee before his trial or to his individual
financial circumstances, the very factors which seem most relevant if
43
the purpose of bail is to assure the appearance of the accused at the
trial. The result of ignoring these factors and fixing the amount of bail
mechanically having regard only to the seriousness of the offence is
to discriminate against the poor who are not in the same position as
the rich as regards capacity to furnish bail. The courts by ignoring the
differential capacity of the rich and the poor to furnish bail and
treating them equally produce inequality between the rich and the
poor: the rich who is charged with the same offence in the same
circumstances is able to secure his release while the poor is unable to
do so on account of his poverty. These are some of the major defects
in the bail system as it is operated today.
The same anguish was expressed by President Lyndon B. Johnson at the
time of signing the Bail Reforms Act, 1966:
Today, we join to recognise a major development in our system of
criminal justice: the reform of the bail system.
This system has endured—archaic, unjust and virtually unexamined
—since the Judiciary Act of 1789.
The principal purpose of bail is to insure that an accused person will
return for trial if he is released after arrest.
How is that purpose met under the present system? The defendant
with means can afford to pay bail. He can afford to buy his freedom.
But poorer defendant cannot pay the price. He languishes in jail
weeks, months and perhaps even years before trial.
He does not stay in jail because he is guilty.
He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee before
trial.
He stays in jail for one reason only—because he is poor....
The bail system, as it operates today, is a source of great hardship to the
poor and if we really want to eliminate the evil effects of poverty and
assure a fair and just treatment to the poor in the administration of justice, it
is imperative that the bail system should be thoroughly reformed so that it
should be possible for the poor, as easily as the rich, to obtain pre-trial
release without jeopardising the interest of justice.
4. It is high time that our Parliament realises that risk of monetary loss is
not the only deterrent against fleeing from justice, but there are also other
factors which act as equal deterrents against fleeing. Ours is a socialist
republic with social justice as the signature tune of our Constitution and
Parliament would do well to consider whether it would not be more
consonant with the ethos of our Constitution that instead of risk of financial
loss, other relevant considerations such as family ties, roots in the
community, job security, membership of stable organisations etc., should be
the determinative factors in grant of bail and the accused should in
appropriate cases be released on his personal bond without monetary
44
obligation. Of course, it may be necessary in such a case to provide by an
amendment of the penal law that if the accused wilfully fails to appear in
compliance with the promise contained in his personal bond, he shall be
liable to penal action. But even under the law as it stands today the courts
must abandon the antiquated concept under which pre-trial release is
ordered only against bail with sureties. That concept is outdated and
experience has shown that it has done more harm than good. The new
insight into the subject of pre-trial release which has been developed in
socially advanced countries and particularly the United States should now
inform the decisions of our courts in regard to pre-trial release. If the Court
is satisfied, after taking into account, on the basis of information placed
before it, that the accused has his roots in the community and is not likely
to abscond, it can safely release the accused on his personal bond. To
determine whether the accused has his roots in the community which would
deter him from fleeing, the Court should take into account the following
factors concerning the accused:
1. The length of his residence in the community,
2. his employment status, history and his financial condition,
3. his family ties and relationships,
4. his reputation, character and monetary condition,
5. his prior criminal record including any record of prior release on
recognizance or on bail,
6. the identity of responsible members of the community who would
vouch for his reliability,
7. the nature of the offence charged and the apparent probability of
conviction and the likely sentence insofar as these factors are relevant
to the risk of non-appearance, and
8. any other factors indicating the ties of the accused to the
community or bearing on the risk of wilful failure to appear.
If the court is satisfied on a consideration of the relevant factors that the
accused has his ties in the community and there is no substantial risk of
non-appearance, the accused may, as far as possible, be released on his
personal bond. Of course, if facts are brought to the notice of the court
which go to show that having regard to the condition and background of the
accused, his previous record and the nature and circumstances of the
offence, there may be a substantial risk of his non-appearance at the trial, as
for example, where the accused is a notorious bad character or a confirmed
criminal or the offence is serious (these examples are only by way of
illustration), the Court may not release the accused on his personal bond
and may insist on bail with sureties. But in the majority of cases,
considerations like family ties and relationship, roots in the community,
employment status etc. may prevail with the Court in releasing the accused
on his personal bond and particularly in cases where the offence is not
grave and the accused is poor or belongs to a weaker section of the
community, release on personal bond could, as far as possible, be preferred.
But even while releasing the accused on personal bond it is necessary to
45
caution the Court that the amount of the bond which it fixes should not be
based merely on the nature of the charge. The decision as regards the
amount of the bond should be an individualised decision depending on the
individual financial circumstances of the accused and the probability of his
absconding. The amount of the bond should be determined having regard to
these relevant factors and should not be fixed mechanically according to a
schedule keyed to the nature of the charge. Otherwise, it would be difficult
for the accused to secure his release even by executing a personal bond.
Moreover, when the accused is released on his personal bond, it would be
very harsh and oppressive if he is required to satisfy the Court—and what
we have said here in regard to the court must apply equally in relation to
the police while granting bail—that he is solvent enough to pay the amount
of the bond if he fails to appear at the trial and in consequence the bond is
forfeited. The inquiry into the solvency of the accused can become a source
of great harassment to him and often result in denial of bail and deprivation
of liberty and should not, therefore, be insisted upon as a condition of
acceptance of the personal bond. We have no doubt that if the system of
bail, even under the existing law, is administered in the manner we have
indicated in this judgment, it would go a long way towards relieving
hardship of the poor and help them to secure pre-trial release from
incarceration. It is for this reason we have directed the undertrial prisoners
whose names are given in the two issues of the Indian Express should be
released forthwith on their personal bond. We should have ordinarily said
that personal bond to be executed by them should be with monetary
obligation but we directed as an exceptional measure that there need be no
monetary obligation in the personal bond because we found that all these
persons have been in jail without trial for several years, and in some cases
for offences for which the punishment would in all probability be less than
the period of their detention and, moreover, the order we were making was
merely an interim order. The peculiar facts and circumstances of the case
dictated such an unusual course.
5. There is also one other infirmity of the legal and judicial system which is
responsible for this gross denial of justice to the undertrial prisoners and
that is the notorious delay in disposal of cases. It is a sad reflection on the
legal and judicial system that the trial of an accused should not even
commence for a long number of years. Even a delay of one year in the
commencement of the trial is bad enough: how much worse could it be
when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of
the essence of criminal justice and there can be no doubt that delay in trial
by itself constitutes denial of justice. It is interesting to note that in the
United States, speedy trial is one of the constitutionally guaranteed rights.
The Sixth Amendment to the Constitution provides that:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial.
So also Article 3 of the European Convention on Human Rights provides
that:
46
Every one arrested or detained . . . shall be entitled to trial within a
reasonable time or to release pending trial.
We think that even under our Constitution, though speedy trial is not
specifically enumerated as a fundamental right, it is implicit in the broad
sweep and content of Article 21 as interpreted by this Court in Maneka
Gandhi v. Union of India [(1978) 2 SCR 621 : (1978) 1 SCC 248]. We have
held in that case that Article 21 confers a fundamental right on every person
not to be deprived of his life or liberty except in accordance with the
procedure prescribed by law and it is not enough to constitute compliance
with the requirement of that article that some semblance of a procedure
should be prescribed by law, but that the procedure should be “reasonable,
fair and just”. If a person is deprived of his liberty under a procedure which
is not “reasonable, fair or just”, such deprivation would be violative of his
fundamental right under Article 21, and he would be entitled to enforce
such fundamental right and secure his release. Now obviously procedure
prescribed by law for depriving a person of liberty cannot be ‘reasonable,
fair or just’ unless that procedure ensures a speedy trial for determination of
the guilt of such person. No procedure which does not ensure a reasonably
quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul
of Article 21. There can, therefore, be no doubt that speedy trial, and by
speedy trial we mean reasonably expeditious trial, is an integral and
essential part of the fundamental right to life and liberty enshrined in
Article 21. The question which would, however, arise is as to what would
be the consequence if a person accused of an offence is denied speedy trial
and is sought to be deprived of his liberty by imprisonment as a result of a
long-delayed trial in violation of his fundamental right under Article 21.
Would he be entitled to be released unconditionally freed from the charge
levelled against him on the ground that trying him after an unduly long
period of time and convicting him after such trial would constitute violation
of his fundamental right under Article 21. That is a question we shall have
to consider when we hear the writ petition on merits on the adjourned date.
But one thing is certain, and we cannot impress it too strongly on the State
Government that it is high time that the State Government realized its
responsibility to the people in the matter of administration of justice and set
up more courts for the trial of cases. We may point out that it would not be
enough merely to establish more courts but the State Government would
also have to man them by competent Judges and whatever is necessary for
the purpose of recruiting competent Judges, such as improving their
conditions of service, would have to be done by the State Government, if
they want to improve the system of administration of justice and make it an
effective instrument for reaching justice to the large masses of people for
whom justice is today a meaningless and empty word.”
 Hussain & Anr. vs. Union of India & Ors., 2017 (5) SCC 702:
“28. Judicial service as well as legal service are not like any other services.
They are missions for serving the society. The mission is not achieved if the
litigant who is waiting in the queue does not get his turn for a long time.
47
The Chief Justices and Chief Ministers have resolved that all cases must be
disposed of within five years which by any standard is quite a long time for
a case to be decided in the first court. Decision of cases of undertrials in
custody is one of the priority areas. There are obstructions at every level in
enforcement of right of speedy trial—vested interests or unscrupulous
elements try to delay the proceedings. Lack of infrastructure is another
handicap. In spite of all odds, determined efforts are required at every level
for success of the mission. Ways and means have to be found out by
constant thinking and monitoring. The Presiding Officer of a court cannot
rest in a state of helplessness. This is the constitutional responsibility of the
State to provide necessary infrastructure and of the High Courts to monitor
the functioning of subordinate courts to ensure timely disposal of cases.
The first step in this direction is preparation of an appropriate action plan at
the level of the High Court and thereafter at the level of each and every
individual judicial officer. Implementation of the action plan will require
serious efforts and constant monitoring.
29. To sum up:
29.1. The High Courts may issue directions to subordinate courts that—
29.1.1. Bail applications be disposed of normally within one week;
29.1.2. Magisterial trials, where accused are in custody, be normally
concluded within six months and sessions trials where accused are in
custody be normally concluded within two years;
29.1.3. Efforts be made to dispose of all cases which are five years old by
the end of the year;
29.1.4. As a supplement to Section 436-A, but consistent with the spirit
thereof, if an undertrial has completed period of custody in excess of the
sentence likely to be awarded if conviction is recorded such undertrial must
be released on personal bond. Such an assessment must be made by the trial
courts concerned from time to time;
29.1.5. The above timelines may be the touchstone for assessment of
judicial performance in annual confidential reports.
29.2. The High Courts are requested to ensure that bail applications filed
before them are decided as far as possible within one month and criminal
appeals where accused are in custody for more than five years are
concluded at the earliest;
29.3. The High Courts may prepare, issue and monitor appropriate action
plans for the subordinate courts;
29.4. The High Courts may monitor steps for speedy investigation and trials
on administrative and judicial side from time to time;
29.5. The High Courts may take such stringent measures as may be found
necessary in the light of judgment of this Court in Harish Uppal [Harish
Uppal v. Union of India, (2003) 2 SCC 45].
48
30. Accordingly, we request the Chief Justices of all the High Courts to
forthwith take appropriate steps consistent with the directions of this Court
in Hussainara Khatoon [Hussainara Khatoon (7) v. State of Bihar, (1995)
5 SCC 326 : 1995 SCC (Cri) 913], Akhtari Bi [Akhtari Bi v. State of M.P.,
(2001) 4 SCC 355 : 2001 SCC (Cri) 714], Noor Mohammed [Noor
Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Crv) 754],
Thana Singh [Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC
590 : (2013) 2 SCC (Cri) 818], Supreme Court Legal Aid Committee
[Supreme Court Legal Aid Committee (Representing Undertrial Prisoners)
v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39], Imtiaz
Ahmad [Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC 688 : (2012) 1 SCC
(Cri) 986], [Imtiyaz Ahmad v. State of U.P., (2017) 3 SCC 658 : (2017) 3
SCC 665 : (2017) 2 SCC (Civ) 311 : (2017) 2 SCC (Civ) 318 : (2017) 2
SCC (Cri) 228 : (2017) 2 SCC (Cri) 235 : (2017) 1 SCC (L&S) 724 :
(2017) 1 SCC (L&S) 731], Harish Uppal [Harish Uppal v. Union of India,
(2003) 2 SCC 45] and Resolution of Chief Justices' Conference and
observations hereinabove and to have appropriate monitoring mechanism in
place on the administrative side as well as on the judicial side for speeding
up disposal of cases of undertrials pending in subordinate courts and
appeals pending in the High Courts.”
 Surinder Singh @ Shingara Singh vs State Of Punjab, 2005 (7) SCC
387:
“8. It is no doubt true that this Court has repeatedly emphasised the fact that
speedy trial is a fundamental right implicit in the broad sweep and content
of Article 21 of the Constitution. The aforesaid article confers a
fundamental right on every person not to be deprived of his life or liberty
except in accordance with the procedure prescribed by law. If a person is
deprived of his liberty under a procedure which is not reasonable, fair, or
just, such deprivation would be violative of his fundamental right under
Article 21 of the Constitution. It has also been emphasised by this Court
that the procedure so prescribed must ensure a speedy trial for
determination of the guilt of such person. It is conceded that some amount
of deprivation of personal liberty cannot be avoided, but if the period of
deprivation pending trial becomes unduly long, the fairness assured by
Article 21 would receive a jolt. These are observations made in several
decisions of this Court dealing with the subject of speedy trial. In this case,
we are concerned with the case where a person has been found guilty of an
offence punishable under Section 302 IPC and who has been sentenced to
imprisonment for life. The Code of Criminal Procedure affords a right of
appeal to such a convict. The difficulty arises when the appeal preferred by
such a convict cannot be disposed of within a reasonable time. In Kashmira
Singh v. State of Punjab [(1977) 4 SCC 291 : 1977 SCC (Cri) 559] this
Court dealt with such a case. It is observed: (SCC pp. 292-93, para 2)
“The practice not to release on bail a person who has been sentenced
to life imprisonment was evolved in the High Courts and in this Court
49
on the basis that once a person has been found guilty and sentenced to
life imprisonment, he should not be let loose, so long as his
conviction and sentence are not set aside, but the underlying postulate
of this practice was that the appeal of such person would be disposed
of within a measurable distance of time, so that if he is ultimately
found to be innocent, he would not have to remain in jail for an
unduly long period. The rationale of this practice can have no
application where the Court is not in a position to dispose of the
appeal for five or six years. It would indeed be a travesty of justice to
keep a person in jail for a period of five or six years for an offence
which is ultimately found not to have been committed by him. Can
the Court ever compensate him for his incarceration which is found to
be unjustified? Would it be just at all for the Court to tell a person:
‘We have admitted your appeal because we think you have a prima
facie case, but unfortunately we have no time to hear your appeal for
quite a few years and, therefore, until we hear your appeal, you must
remain in jail, even though you may be innocent?’ What confidence
would such administration of justice inspire in the mind of the public?
It may quite conceivably happen, and it has in fact happened in a few
cases in this Court, that a person may serve out his full term of
imprisonment before his appeal is taken up for hearing. Would a
judge not be overwhelmed with a feeling of contrition while
acquitting such a person after hearing the appeal? Would it not be an
affront to his sense of justice? Of what avail would the acquittal be to
such a person who has already served out his term of imprisonment or
at any rate a major part of it? It is, therefore, absolutely essential that
the practice which this Court has been following in the past must be
reconsidered and so long as this Court is not in a position to hear the
appeal of an accused within a reasonable period of time, the Court
should ordinarily, unless there are cogent grounds for acting
otherwise, release the accused on bail in cases where special leave has
been granted to the accused to appeal against his conviction and
sentence.”
9. Similar observations are found in some of the other decisions of this
Court which have been brought to our notice. But, however, it is significant
to note that all these decisions only lay down broad guidelines which the
courts must bear in mind while dealing with an application for grant of bail
to an appellant before the court. None of the decisions lay down any
invariable rule for grant of bail on completion of a specified period of
detention in custody. Indeed in a discretionary matter, like grant or refusal
of bail, it would be impossible to lay down any invariable rule or evolve a
straitjacket formula. The court must exercise its discretion having regard to
all the relevant facts and circumstances. What the relevant facts and
circumstances are, which the court must keep in mind, has been laid down
over the years by the courts in this country in a large number of decisions
which are well known. It is, therefore, futile to attempt to lay down any
invariable rule or formula in such matters.
50
10. The counsel for the parties submitted before us that though it has been
so understood by the courts in Punjab, the decision of the Punjab and
Haryana High Court in Dharam Pal case [(2000) 1 Chan LR 74] only lays
down guidelines and not any invariable rule. Unfortunately, the decision
has been misunderstood by the Court in view of the manner in which the
principles have been couched in the aforesaid judgment. After considering
the various decisions of this Court and the difficulties faced by the courts,
the High Court in Dharam Pal case [(2000) 1 Chan LR 74] observed:
(Chan LR p. 87, para 18)
“We, therefore, direct that life convicts, who have undergone at least
five years of imprisonment of which at least three years should be
after conviction, should be released on bail pending the hearing of
their appeals should they make an application for this purpose. We are
also of the opinion that the same principles ought to apply to those
convicted by the courts martial and such prisoners should also be
entitled to release after seeking a suspension of their sentences. We
further direct that the period of five years would be reduced to four
for females and minors, with at least two years imprisonment after
conviction. We, however, clarify that these directions shall not be
applicable in cases where the very grant of bail is forbidden by law.”
Section 389 of the Code
“389. Suspension of sentence pending the appeal; release of appellant
on bail.—(1) Pending any appeal by a convicted person, the Appellate
Court may, for reasons to be recorded by it in writing, order that the
execution of the sentence or order appealed against be suspended and, also,
if he is in confinement, that he be released on bail, or on his own bond.
Provided that the Appellate Court shall, before releasing on bail or on his
own bond a convicted person who is convicted of an offence punishable
with death or imprisonment for life or imprisonment for a term of not less
than ten years, shall give opportunity to the Public Prosecutor for showing
cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it
shall be open to the Public Prosecutor to file an application for the
cancellation of the bail.
(2) The power conferred by this section on an Appellate Court may be
exercised also by the High Court in the case of an appeal by a convicted
person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted
that he intends to present an appeal, the Court shall, —
(i) where such person, being on bail, is sentenced to imprisonment for
a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a
bailable one, and he is on bail, order that the convicted person be
released on bail, unless there are special reasons for refusing bail, for
51
such period as will afford sufficient time to present the appeal and
obtain the orders of the Appellate Court under sub-section (1), and the
sentence of imprisonment shall, so long as he is so released on bail,
be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term
or to imprisonment for life, the time during which he is so released shall be
excluded in computing the term for which he is so sentenced.”
42.Section 389 of the Code concerns itself with circumstances pending appeal
leading to the release of the appellant on bail. The power exercisable under
Section 389 is different from that of the one either under Section 437 or under
Section 439 of the Code, pending trial. This is for the reason that
“presumption of innocence” and “bail is the rule and jail is the exception”
may not be available to the appellant who has suffered a conviction. A mere
pendency of an appeal per se would not be a factor.
43. A suspension of sentence is an act of keeping the sentence in abeyance,
pending the final adjudication. Though delay in taking up the main appeal
would certainly be a factor and the benefit available under Section 436A
would also be considered, the Courts will have to see the relevant factors
including the conviction rendered by the trial court. When it is so apparent
that the appeals are not likely to be taken up and disposed of, then the delay
would certainly be a factor in favour of the appellant.
44.Thus, we hold that the delay in taking up the main appeal or revision coupled
with the benefit conferred under Section 436A of the Code among other
factors ought to be considered for a favourable release on bail.
52
Precedents:
 Atul Tripathi vs State of U.P. & Anr., 2014 (9) SCC 177:
“13. It may be seen that there is a marked difference between the procedure
for consideration of bail under Section 439, which is pre-conviction stage
and Section 389 CrPC, which is post-conviction stage. In case of Section
439, the Code provides that only notice to the public prosecutor unless
impractical be given before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Sessions or where the
punishment for the offence is imprisonment for life; whereas in the case of
post-conviction bail under Section 389 CrPC, where the conviction in
respect of a serious offence having punishment with death or life
imprisonment or imprisonment for a term not less than ten years, it is
mandatory that the appellate court gives an opportunity to the public
prosecutor for showing cause in writing against such release.
14. …in case the appellate court is inclined to consider the release of the
convict on bail, the public prosecutor shall be granted an opportunity to
show cause in writing as to why the Appellant be not released on bail. Such
a stringent provision is introduced only to ensure that the court is apprised
of all the relevant factors so that the court may consider whether it is an
appropriate case for release having regard to the manner in which the crime
is committed, gravity of the offence, age, criminal antecedents of the
convict, impact on public confidence in the justice-delivery system, etc.
Despite such an opportunity being granted to the Public Prosecutor, in case
no cause is shown in writing, the appellate court shall record that the State
has not filed any objection in writing. This procedure is intended to ensure
transparency, to ensure that there is no allegation of collusion and to ensure
that the court is properly assisted by the State with true and correct facts
with regard to the relevant considerations for grant of bail in respect of
serious offences, at the post-conviction stage.”
 Angana v. State of Rajasthan, (2009) 3 SCC 767:
“14. When an appeal is preferred against conviction in the High Court, the
Court has ample power and discretion to suspend the sentence, but that
discretion has to be exercised judiciously depending on the facts and
circumstances of each case. While considering the suspension of sentence,
each case is to be considered on the basis of nature of the offence, manner
in which occurrence had taken place, whether in any manner bail granted
earlier had been misused. In fact, there is no straitjacket formula which can
be applied in exercising the discretion. The facts and circumstances of each
case will govern the exercise of judicial discretion while considering the
53
application filed by the convict under Section 389 of the Criminal
Procedure Code.”
 Sunil Kumar v. Vipin Kumar (2014) 8 SCC 868:
“13. We have heard the rival legal contentions raised by both the parties.
We are of the opinion that the High Court has rightly applied its
discretionary power under Section 389 CrPC to enlarge the respondents on
bail. Firstly, both the criminal appeal and criminal revision filed by both the
parties are pending before the High Court which means that the convictions
of the respondents are not confirmed by the appellate court. Secondly, it is
an admitted fact that the respondents had been granted bail earlier and they
did not misuse the liberty. Also, the respondents had conceded to the
occurrence of the incident though with a different version.
14. We are of the opinion that the High Court has taken into consideration
all the relevant facts including the fact that the chance of the appeal being
heard in the near future is extremely remote, hence, the High Court has
released the respondents on bail on the basis of sound legal reasoning. We
do not wish to interfere with the decision of the High Court at this stage.
The appeal is dismissed accordingly.”
45. However, we hasten to add that if the court is inclined to release the
appellant on bail, it has to be predicated on his own bond as facilitated by
Sub-section (1).
Section 436A of the Code
436A. Maximum period for which an undertrial prisoner can be detained.—
Where a person has, during the period of investigation, inquiry or trial
under this Code of an offence under any law (not being an offence for
which the punishment of death has been specified as one of the
punishments under that law) undergone detention for a period extending up
to one-half of the maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court on his personal
bond with or without sureties:
 Provided that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of
such person for a period longer than one-half of the said period or release
him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during
the period of investigation, inquiry or trial for more than the maximum
period of imprisonment provided for the said offence under that law.
54
Explanation.—In computing the period of detention under this section for
granting bail, the period of detention passed due to delay in proceeding
caused by the accused shall be excluded.
46.Section 436A of the Code has been inserted by Act 25 of 2005. This
provision has got a laudable object behind it, particularly from the point of
view of granting bail. This provision draws the maximum period for which an
undertrial prisoner can be detained. This period has to be reckoned with the
custody of the accused during the investigation, inquiry and trial. We have
already explained that the word ‘trial’ will have to be given an expanded
meaning particularly when an appeal or admission is pending. Thus, in a case
where an appeal is pending for a longer time, to bring it under Section 436A,
the period of incarceration in all forms will have to be reckoned, and so also
for the revision.
47.Under this provision, when a person has undergone detention for a period
extending to one-half of the maximum period of imprisonment specified for
that offense, he shall be released by the court on his personal bond with or
without sureties. The word ‘shall’ clearly denotes the mandatory compliance
of this provision. We do feel that there is not even a need for a bail
application in a case of this nature particularly when the reasons for delay are
not attributable against the accused. We are also conscious of the fact that
while taking a decision the public prosecutor is to be heard, and the court, if it
is of the view that there is a need for continued detention longer than one-half
55
of the said period, has to do so. However, such an exercise of power is
expected to be undertaken sparingly being an exception to the general rule.
Once again, we have to reiterate that ‘bail is the rule and jail is an exception’
coupled with the principle governing the presumption of innocence. We have
no doubt in our mind that this provision is a substantive one, facilitating
liberty, being the core intendment of Article 21. The only caveat as furnished
under the Explanation being the delay in the proceeding caused on account of
the accused to be excluded. This court in Bhim Singh v. Union of India,
(2015) 13 SCC 605, while dealing with the aforesaid provision, has directed
that:
“5. Having given our thoughtful consideration to the legislative policy
engrafted in Section 436-A and large number of undertrial prisoners housed
in the prisons, we are of the considered view that some order deserves to be
passed by us so that the undertrial prisoners do not continue to be detained
in prison beyond the maximum period provided under Section 436-A.
6. We, accordingly, direct that jurisdictional Magistrate/Chief Judicial
Magistrate/Sessions Judge shall hold one sitting in a week in each
jail/prison for two months commencing from 1-10-2014 for the purposes of
effective implementation of Section 436-A of the Code of Criminal
Procedure. In its sittings in jail, the above judicial officers shall identify the
undertrial prisoners who have completed half period of the maximum
period or maximum period of imprisonment provided for the said offence
under the law and after complying with the procedure prescribed under
Section 436-A pass an appropriate order in jail itself for release of such
undertrial prisoners who fulfil the requirement of Section 436-A for their
release immediately. Such jurisdictional Magistrate/Chief Judicial
Magistrate/Sessions Judge shall submit the report of each of such sittings to
the Registrar General of the High Court and at the end of two months, the
Registrar General of each High Court shall submit the report to the
Secretary General of this Court without any delay. To facilitate compliance
with the above order, we direct the Jail Superintendent of each jail/prison to
provide all necessary facilities for holding the court sitting by the above
judicial officers. A copy of this order shall be sent to the Registrar General
of each High Court, who in turn will communicate the copy of the order to
all Sessions Judges within his State for necessary compliance.”
56
48.The aforesaid directions issued by this Court if not complied fully, are
expected to be complied with in order to prevent the unnecessary
incarceration of undertrials, and to uphold the inviolable principle of
presumption of innocence until proven guilty.
Section 437 of the Code
“437. When bail may be taken in case of non-bailable offence.—1 [(1)
When any person accused of, or suspected of, the commission of any nonbailable offence is arrested or detained without warrant by an officer in
charge of a police station or appears or is brought before a Court other than
the High Court or Court of session, he may be released on bail, but—
(i) such person shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence punishable
with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable
offence and he had been previously convicted of an offence
punishable with death, imprisonment for life or imprisonment for
seven years or more, or he had been previously convicted on two or
more occasions of a cognizable offence punishable with
imprisonment for three years or more but not less than seven years:
Provided that the Court may direct that a person referred to in clause (i) or
clause (ii) be released on bail if such person is under the age of sixteen
years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in
clause (ii) be released on bail if it is satisfied that it is just and proper so to
do for any other special reason:
Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released on
bail and gives an undertaking that he shall comply with such directions as
may be given by the Court:]
Provided also that no person shall, if the offence alleged to have been
committed by him is punishable with death, imprisonment for life, or
imprisonment for seven years or more, be released on bail by the Court
under this sub-section without giving an opportunity of hearing to the
Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation,
inquiry or trial, as the case may be, that there are not reasonable grounds for
believing that the accused has committed a non-bailable offence, but that
there are sufficient grounds for further inquiry into his guilt, the accused
57
shall, subject to the provisions of section 446A and pending such inquiry,
be released on bail, or, at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as
hereinafter provided.
(3) When a person accused or suspected of the commission of an offence
punishable with imprisonment which may extend to seven years or more or
of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian
Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to
commit, any such offence, is released on bail under sub-section (1), the
Court shall impose the conditions,—
(a) that such person shall attend in accordance with the conditions of
the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence
of which he is accused, or suspected, of the commission of which he
is suspected, and
(c) that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such facts to the
Court or to any police officer or tamper with the evidence, and may
also impose, in the interests of justice, such other conditions as it
considers necessary.]
(4) An officer or a Court releasing any person on bail under sub-section (1)
or sub-section (2), shall record in writing his or its reasons or special
reasons for so doing.
(5) Any Court which has released a person on bail under sub-section (1) or
sub-section (2), may, if it considers it necessary so to do, direct that such
person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of
any non-bailable offence is not concluded within a period of sixty days
from the first date fixed for taking evidence in the case, such person shall, if
he is in custody during the whole of the said period, be released on bail to
the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.
(7) If, at any time, after the conclusion of the trial of a person accused of a
non-bailable offence and before judgment is delivered, the Court is of
opinion that there are reasonable grounds for believing that the accused is
not guilty of any such offence, it shall release the accused, if he is in
custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.”
49.Seeking to impeach Warren Hastings for his activities during the colonial
period, Sir Edmund Burke made the following famous statement in “The
58
World’s Famous Orations” authored by Bryan, William Jennings, published
by New York: Funk and Wagnalls Company, 1906:
“Law and arbitrary power are in eternal enmity. Name me a magistrate, and
I will name property; name me power, and I will name protection. It is a
contradiction in terms, it is blasphemy in religion, it is wickedness in
politics, to say that any man can have arbitrary power. In every patent of
office the duty is included. For what else does a magistrate exist? To
suppose for power is an absurdity in idea. Judges are guided and governed
by the eternal laws of justice, to which we are all subject. We may bite our
chains, if we will, but we shall be made to know ourselves, and be taught
that man is born to be governed by law; and he that will substitute will in
the place of it is an enemy to God.”
50.Section 437 of the Code is a provision dealing with bail in case of nonbailable offenses by a court other than the High Court or a Court of Sessions.
Here again, bail is the rule but the exception would come when the court is
satisfied that there are reasonable grounds that the accused has been guilty of
the offense punishable either with death or imprisonment for life. Similarly, if
the said person is previously convicted of an offense punishable with death or
imprisonment for life or imprisonment for seven years or more or convicted
previously on two or more occasions, the accused shall not be released on
bail by the magistrate.
51.Proviso to Section 437 of the Code mandates that when the accused is under
the age of sixteen years, sick or infirm or being a woman, is something which
is required to be taken note of. Obviously, the court has to satisfy itself that
the accused person is sick or infirm. In a case pertaining to women, the court
is expected to show some sensitivity. We have already taken note of the fact
59
that many women who commit cognizable offenses are poor and illiterate. In
many cases, upon being young they have children to take care of, and there
are many instances when the children are to live in prisons. The statistics
would show that more than 1000 children are living in prisons along with
their mothers. This is an aspect that the courts are expected to take note of as
it would not only involve the interest of the accused, but also the children
who are not expected to get exposed to the prisons. There is a grave danger of
their being inherited not only with poverty but with crime as well.
52.The power of a court is quite enormous while exercising the power under
Section 437. Apart from the general principle which we have discussed, the
court is also empowered to grant bail on special reasons. The said power has
to be exercised keeping in view the mandate of Section 41 and 41A of the
Code as well. If there is a proper exercise of power either by the investigating
agencies or by the court, the majority of the problem of the undertrials would
be taken care of.
53.The proviso to Section 437 warrants an opportunity to be afforded to the
learned Public Prosecutor while considering an offense punishable with
death, imprisonment for life, or imprisonment for seven years or more.
Though, this proviso appears to be contrary to the main provision contained
in Section 437(1) which, by way of a positive direction, prohibits the
Magistrate from releasing a person guilty of an offense punishable with either
60
death or imprisonment for life. It is trite that a proviso has to be understood in
the teeth of the main provision. Section 437(1)(i) operates in a different field.
The object is to exclude the offense exclusively triable by the Court of
Sessions. Thus, one has to understand the proviso by a combined reading of
Sections 437 and 439 of the Code, as the latter provision reiterates the
aforesaid provision to the exclusion of the learned Magistrate over an offense
triable exclusively by a Court of Sessions. To make the position clear, if the
Magistrate has got the jurisdiction to try an offense for which the maximum
punishment is either life or death, when such jurisdiction is conferred on the
learned Magistrate, it goes without saying that the power to release the
accused on bail for the offense alleged also can be exercised. This Court in
Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 has held:
“7. Powers of the Magistrate, while dealing with the applications for grant
of bail, are regulated by the punishment prescribed for the offence in which
the bail is sought. Generally speaking if punishment prescribed is for
imprisonment for life and death penalty and the offence is exclusively
triable by the Court of Session, the Magistrate has no jurisdiction to grant
bail unless the matter is covered by the provisos attached to Section 437 of
the Code. The limitations circumscribing the jurisdiction of the Magistrate
are evident and apparent. Assumption of jurisdiction to entertain the
application is distinguishable from the exercise of the jurisdiction.”
54. We wish to place reliance on the judgment of the Bombay High Court in The
Balasaheb Satbhai Merchant Coop Bank Ltd. vs. The State of
Maharashtra and Ors., 2011 SCC OnLine Bom 1261:
“13. At this stage, it may be useful to quote the observations of this
Court in "Ambarish Rangshhi Patnigere v. State of Maharashtra"
referred supra, which reads thus -
61
“17. It may be noted here that the learned Counsel for intervener
contended that the Magistrate did not have jurisdiction to grant
bail because the offences under Sections 467 and 409 IPC, carry
punishment which may be life imprisonment. According to the
learned Counsel, if the offence is punishable with sentence of
death or life imprisonment, the Magistrate cannot grant bail under
Section 437(1) Cr.P.C., unless there are special grounds mentioned
therein. He relied upon certain authorities in this respect including
Prahlad Sigh Bhati v. NCT, Delhi and Anr. JT 2001 (4) SCC 280.
In that case, offence was under Section 302 which is punishable
with death sentence or life imprisonment and is exclusively triable
by Court of Sessions. The offence under Section 409 is punishable
with imprisonment for life or imprisonment for 10 years and fine.
Similarly, the office under Section 467 is also punishable with
imprisonment for life or imprisonment for 10 years and fine. Even
though the maximum sentence which may be awarded is life
imprisonment, as per Part I of Schedule annexed to Cr.P.C., both
these offences are triable by a Magistrate of First Class. It
appears that there are several offences including under sec. 326 in
the Penal Code, 1860 wherein sentence, which may be awarded, is
imprisonment for life or imprisonment for lesser terms and such
offences are triable by Magistrate of the First Class. If the
Magistrate is empowered to try the case and pass judgment and
order of conviction or acquittal, it is difficult to understand why he
cannot pass order granting bail, which is interlocutory in nature,
in such cases. In fact, the restriction under Section 437(1) Cr.P.C.
is in respect of those offences which are punishable with
alternative sentence of death or life imprisonment. If the offence is
punishable with life imprisonment or any other lesser sentence and
is triable by Magistrate, it cannot be said that Magistrate does not
have jurisdiction to consider the bail application. In taking this
view, I am supported by the old Judgment of Nagpur Judicial
Commissioner's Court in Tularam and Ors. v. Emperor 27 Cri.L.J.
1926 page 1063 and also by the Judgment of the Kerala High
Court in Satyan v. State 1981 Cr.L.J. 1313. In Satyan, the Kerala
High Court considered several earlier judgments and observed
thus in paras 7 and 8:-
“7. According to the learned Magistrate Section 437(1) does
not empower him to release a person on bail if there are
reasonable grounds for believing that he has committed an
offence punishable with death or an offence punishable with
imprisonment for life. In other words the learned Magistrate
has interpreted the expression "offence punishable with
death or imprisonment for life" in Section 437(1) to include
all offences where the punishment extends to imprisonment
for life. This reasoning, no doubt, is seen adopted in an old
Rangoon Case H.M. Boudville v. Emperor, AIR 1925 129 :
(1925) 26 Cri LJ 427 while interpreting the phrase "an
offence punishable with death or transportation for life" in
62
Section 497 Cr.P.C. 1898. But that case was dissented from
in Mahammed Eusoof v. Emperor, AIR 1926 Rang 51 :
(1926) 27 Cri LJ 401). The Rangoon High Court held that
the prohibition against granting bail is confined to cases
where the sentence is either death or alternative
transportation for life. In other words, what the Court held
was that the phrase "death or transportation for life" in
Section 497 of the old Code did not extend to offences
punishable with transportation for life only, it will be
interesting to note the following passage from the above
judgment:
"It is difficult to see what principle, other than pure
empiricism should distinguish offences punishable with
transportation for life from offences punishable with
long terms of imprisonment; why, for instance, the
detenu accused of lurking house trespass with a view
to commit theft, for which the punishment is fourteen
years imprisonment, should be specially favoured as
against the individual who has dishonestly received
stolen property, knowing that it was obtained by
dacoity, for which the punishment happens to be
transportation for life? It cannot seriously be argued
that the comparatively slight difference in decree of
possible punishment will render it morally less likely
that the person arrested will put in an appearance in
the one case rather than the other. On the other hand
the degree of difference is so great as between
transportation for life and death as to be
immeasurable. A prudent Legislature will, therefore,
withdraw from the discretion of the Magistracy cases
in which, if guilt is probable, even a man of the
greatest fortitude may be wiling to pay a material
price, however, exorbitant, for life."
The above decision has been followed by the Nagpur High Court
in the case reported in Tularam v. Emperor, (AIR 1927 Nag 53) :
(1926) 27 Cri LJ 1063).
"8. The reasoning applies with equal force in interpreting the
phrase "offence punishable with death or imprisonment for
life" So long as an offence under section 326 is triable by a
Magistrate of the First Class there is no reason why it
should be viewed differently in the matter of granting bail
from an offence under Section 420 I.P.C. for which the
punishment extends imprisonment for 7 years or any other
non-bailable offence for which the punishment is a term of
imprisonment."
63
It would be illogical and incomprehensible to say that the
magistrate who can hold the trial and pass judgment of acquittal
or conviction for the offences punishable with sentence of life
imprisonment or lesser term of imprisonment, for example in
offences under S. 326, 409, 467, etc., cannot consider the
application for bail in such offences. In fact, it appears that the
restriction under Section 437(1) (a) is applicable only to those
cases which are punishable with death sentence or life
imprisonment as alternative sentence. It may be noted that in
Prahlad Sigh Bhati (supra), in para 6, the Supreme Court held
that even though there is no legal bar for a Magistrate to consider
an application for grant of bail to a person who is arrested for an
offence exclusively triable by a Court of session, yet it would be
proper and appropriate that in such a case the Magistrate directs
the accused person to approach the Court of Session for the
purposes of getting the relief of bail. This may be applicable to
many cases, wherein the sentence, which may be awarded, is not
even life imprisonment, but the offence is exclusively triable by
court of Sessions for example offences punishable under Sections
306, 308, 314, 315, 316, 399, 400 and 450. Taking into
consideration the legal position, I do not find any substance in the
contention of Mr. Bhatt, learned Counsel for the intervener that
merely because the offence is under Section 409 and 467 IPC,
Magistrate did not have jurisdiction to hear and grant the bail.
14. It may also be useful to refer the observations of this Court in Ishan
Vasant Deshmukh v. State of Maharashtra” referred supra, which read
thus—
“The observations of the Supreme Court that generally speaking if
the punishment prescribed is that of imprisonment for life or death
penalty, and the offence is exclusively triable by the Court of
Sessions, the Magistrate has no jurisdiction to grant bail, unless
the matter is covered by the provisos attached to section 437 of the
Code. Thus, merely because an offence is punishable when
imprisonment for life, it does not follow a Magistrate would have
no jurisdiction to grant bail, unless offence is also exclusively
triable by the Court of Sessions. This, implies that the Magistrate
would be entitled to grant bail in cases triable by him even though
punishment prescribed may extend to imprisonment for life. This
Judgment in Prahlad Singh Bhati's case had not been cited before
Judge, who decided State of Maharashtra v. Rajkumar Kunda
Swami. Had this Judgment been noticed by the Hon'ble Judge
deciding that case, the observation that the Magistrate may not
decide an application for bail if the offence is punishable with
imprisonment for life would possibly would not have been made.
In view of the observations of the Supreme Court in Prahlad Singh
Bhati's case, it is clear that the view taken by J.H. Bhatia, J. in
Ambarish Rangshahi Patnigere v. State of Maharashtra, reported
at 2010 ALL MR (Cri) 2775 is in tune with the Judgment of the
64
Supreme Court and therefore, the Magistrate would have
jurisdiction to grant bail.”
55.Thus, we would like to reiterate the aforesaid position so that the
jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal
case which provides for a maximum punishment of either life or death
sentence, has got ample jurisdiction to consider the release on bail.
Section 439 of the Code
“439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct—
(a) that any person accused of an offence and in custody be released
on bail, and if the offence is of the nature specified in sub-section (3)
of section 437, may impose any condition which it considers
necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any
person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting
bail to a person who is accused of an offence which is triable exclusively by
the Court of Session or which, though not so triable, is punishable with
imprisonment for life, give notice of the application for bail to the Public
Prosecutor unless it is, for reasons to be recorded in writing, of opinion that
it is not practicable to give such notice.
xxx xxx xxx
(2) A High Court or Court of Session may direct that any person who has
been released on bail under this Chapter be arrested and commit him to
custody.”
56.Section 439 confers a power upon the High Court or a Court of Sessions
regarding the bail. This power is to be exercised against the order of the
judicial magistrate exercising power under Section 437 of the Code or in a
65
case triable by the Court of Sessions exclusively. In the former set of cases,
the observations made by us would apply to the exercise of power under
Section 439 as well.
57.Interestingly, the second proviso to Section 439 prescribes for the notice of an
application to be served on the public prosecutor within a time limit of 15
days on the set of offenses mentioned thereunder. Similarly, proviso to subsection (1)(a) makes it obligatory to give notice of the application for bail to
the public prosecutor as well as the informant or any other person authorised
by him at the time of hearing the application for bail. This being the mandate
of the legislation, the High Court and the Court of Sessions shall see to it that
it is being complied with.
58.Section 437 of the Code empowers the Magistrate to deal with all the
offenses while considering an application for bail with the exception of an
offense punishable either with life imprisonment or death triable exclusively
by the Court of Sessions. The first proviso facilitates a court to conditionally
release on bail an accused if he is under the age of 16 years or is a woman or
is sick or infirm, as discussed earlier. This being a welfare legislation, though
introduced by way of a proviso, has to be applied while considering release
on bail either by the Court of Sessions or the High Court, as the case may be.
The power under Section 439 of the Code is exercised against an order
rejecting an application for bail and against an offence exclusively decided by
66
the Court of Sessions. There cannot be a divided application of proviso to
Section 437, while exercising the power under Section 439. While dealing
with a welfare legislation, a purposive interpretation giving the benefit to the
needy person being the intendment is the role required to be played by the
court. We do not wish to state that this proviso has to be considered
favourably in all cases as the application depends upon the facts and
circumstances contained therein. What is required is the consideration per se
by the court of this proviso among other factors.
Section 440 of the Code
“440. Amount of bond and reduction thereof.—(1) The amount of every
bond executed under this Chapter shall be fixed with due regard to the
circumstances of the case and shall not be excessive.
(2) The High Court or Court of Session may direct that the bail required by
a police officer or Magistrate be reduced.”
59.Before we deal with the objective behind Section 440, certain precedents and
laws adopted in the United States of America are required to be taken note of.
60.In the State of Illinois, a conscious decision was taken to dispense with the
requirement of cost as a predominant factor in the execution of a warrant
while granting bail, as such a condition is an affront to liberty, and thus,
affects the fundamental rights of an arrestee. If an individual is not able to
comply with the condition due to the circumstances beyond his control, and
thus making it impossible for him to enjoy the fruits of the bail granted, it
certainly constitutes an act of injustice. The objective behind granting of bail
67
is different from the conditions imposed. The State of Illinois took note of the
fact that a prisoner cannot be made to comply with the deposit of cash as a
pre-condition for enlargement, and therefore dispensed with the same.
61.When such an onerous condition was challenged on the premise that it affects
a category of persons who do not have the financial wherewithal, making
them to continue in incarceration despite a temporary relief being granted,
enabling them to conduct the trial as free persons, the Supreme Court of
California in In re Kenneth Humphrey, S247278; 482 P.3d 1008 (2021),
was pleased to hold that the very objective is lost and would possibly impair
the preparation of a defense, as such, the court was of the view that such
onerous conditions cannot be sustained in the eye of law. Relevant paras of
the judgment are reproduced hereunder:
 IV.
….In choosing between pretrial release and detention, we recognize that
absolute certainty — particularly at the pretrial stage, when the trial meant
to adjudicate guilt or innocence is yet to occur — will prove all but
impossible. A court making these determinations should focus instead on
risks to public or victim safety or to the integrity of the judicial process that
are reasonably likely to occur. (See Stack v. Boyle (1951) 342 U.S. 1, 8
(conc. opn. of Jackson, J.) [“Admission to bail always involves a risk that
the accused will take flight. That is a calculated risk which the law takes as
the price of our system of justice”]; cf. Salerno, supra, 481 U.S. at p. 751
[discussing an arrestee’s “identified and articulable threat to an individual or
the community”].)
Even when a bail determination complies with the above prerequisites,
the court must still consider whether the deprivation of liberty caused by an
order of pretrial detention is consistent with state statutory and
constitutional law specifically addressing bail — a question not resolved
here7 — and with due process. While due process does not categorically
prohibit the government from ordering pretrial detention, it remains true that
68
“[i]n our society liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” (Salerno, supra, 481 U.S. at p. 755.)
V.
In a crucially important respect, California law is in line with the federal
Constitution: “liberty is the norm, and detention prior to trial or without trial
is the carefully limited exception.” (Salerno, supra, 481 U.S. at p. 755.) An
arrestee may not be held in custody pending trial unless the court has made
an individualized determination that (1) the arrestee has the financial ability
to pay, but nonetheless failed to pay, the amount of bail the court finds
reasonably necessary to protect compelling government interests; or (2)
detention is necessary to protect victim or public safety, or ensure the
defendant’s appearance, and there is clear and convincing evidence that no
less restrictive alternative will reasonably vindicate those interests. (See
Humphrey, supra, 19 Cal.App.5th at p. 1026.) Pretrial detention on victim
and public safety grounds, subject to specific and reliable constitutional
constraints, is a key element of our criminal justice system. Conditioning
such detention on the arrestee’s financial resources, without ever assessing
whether a defendant can meet those conditions or whether the state’s
interests could be met by less restrictive alternatives, is not.”
62.Under Section 440 the amount of every bond executed under Chapter XXXIII
is to be fixed with regard to the circumstances of the case and shall not be
excessive. This is a salutary provision which has to be kept in mind. The
conditions imposed shall not be mechanical and uniform in all cases. It is a
mandatory duty of the court to take into consideration the circumstances of
the case and satisfy itself that it is not excessive. Imposing a condition which
is impossible of compliance would be defeating the very object of the release.
In this connection, we would only say that Section 436, 437, 438 and 439 of
the Code are to be read in consonance. Reasonableness of the bond and surety
is something which the court has to keep in mind whenever the same is
insisted upon, and therefore while exercising the power under Section 88 of
the Code also the said factum has to be kept in mind. This Court in
69
Hussainara Khatoon & Ors v Home Secretary, State of Bihar, 1980 (1)
SCC 81, has held that:
“8. In regard to the exercise of the judicial power to release a prisoner
awaiting trial on bail or on the execution of a personal bond without sureties
for his appearance, I have to say this briefly. There is an amplitude of power
in this regard within the existing provisions of the Code of Criminal
Procedure, and it is for the courts to fully acquaint themselves with the
nature and extent of their discretion in exercising it. I think it is no longer
possible to countenance a mechanical exercise of the power. What should be
the amount of security required or the monetary obligation demanded in a
bond is a matter calling for the careful consideration of several factors. The
entire object being only to ensure that the undertrial does not flee or hide
himself from trial, all the relevant considerations which enter into the
determination of that question must be taken into account. [ Section 440,
Cr.P.C.] A synoptic impression of what the considerations could be may be
drawn from the following provision in the United States Bail Reform Act of
1966 :
In determining which conditions of releases will reasonably assure
appearance, the judicial officer shall, on the basis of available
information, take into account the nature and circumstances of the
offence charged, the weight of the evidence against the accused, the
accused's family ties, employment, financial resources, character and
mental condition, the length of his residence in the community, his
record of convictions, and his record of appearance at court
proceedings or of flight to avoid prosecution or failure to appear at
court proceedings. [18 US S. 3146(b)]
These are considerations which should be kept in mind when determining
the amount of the security or monetary obligation. Perhaps, if this is done
the abuses attendant on the prevailing system of pre-trial release in India
could be avoided or, in any event, greatly reduced. See Moti Ram v. State of
M.P. [(1978) 4 SCC 47]”
CATEGORIES A & B
63.We have already dealt with the relevant provisions which would take care of
categories A and B. At the cost of repetition, we wish to state that, in category
A, one would expect a better exercise of discretion on the part of the court in
favour of the accused. Coming to category B, these cases will have to be dealt
70
with on a case-to-case basis again keeping in view the general principle of
law and the provisions, as discussed by us.
71
SPECIAL ACTS (CATEGORY C)
64.Now we shall come to category (C). We do not wish to deal with individual
enactments as each special Act has got an objective behind it, followed by the
rigor imposed. The general principle governing delay would apply to these
categories also. To make it clear, the provision contained in Section 436A of
the Code would apply to the Special Acts also in the absence of any specific
provision. For example, the rigor as provided under Section 37 of the NDPS
Act would not come in the way in such a case as we are dealing with the
liberty of a person. We do feel that more the rigor, the quicker the
adjudication ought to be. After all, in these types of cases number of
witnesses would be very less and there may not be any justification for
prolonging the trial. Perhaps there is a need to comply with the directions of
this Court to expedite the process and also a stricter compliance of Section
309 of the Code.
Precedents
 Union of India v. K.A. Najeeb, (2021) 3 SCC 713:
“15. This Court has clarified in numerous judgments that the liberty
guaranteed by Part III of the Constitution would cover within its protective
ambit not only due procedure and fairness but also access to justice and a
speedy trial. In Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6
SCC 731, para 15 : 1995 SCC (Cri) 39], it was held that undertrials cannot
indefinitely be detained pending trial. Ideally, no person ought to suffer
adverse consequences of his acts unless the same is established before a
neutral arbiter. However, owing to the practicalities of real life where to
secure an effective trial and to ameliorate the risk to society in case a
potential criminal is left at large pending trial, the courts are tasked with
deciding whether an individual ought to be released pending trial or not.
72
Once it is obvious that a timely trial would not be possible and the accused
has suffered incarceration for a significant period of time, the courts would
ordinarily be obligated to enlarge them on bail.”
 Supreme Court Legal Aid Committee v. Union of India (1994) 6
SCC 731:
“15. …In substance the petitioner now prays that all undertrials who are in
jail for the commission of any offence or offences under the Act for a period
exceeding two years on account of the delay in the disposal of cases lodged
against them should be forthwith released from jail declaring their further
detention to be illegal and void and pending decision of this Court on the
said larger issue, they should in any case be released on bail. It is indeed
true and that is obvious from the plain language of Section 36(1) of the Act,
that the legislature contemplated the creation of Special Courts to speed up
the trial of those prosecuted for the commission of any offence under the
Act. It is equally true that similar is the objective of Section 309 of the
Code. It is also true that this Court has emphasised in a series of decisions
that Articles 14, 19 and 21 sustain and nourish each other and any law
depriving a person of “personal liberty” must prescribe a procedure which is
just, fair and reasonable, i.e., a procedure which promotes speedy trial. See
Hussainara Khatoon (IV) v. Home Secy., State of Bihar [(1980) 1 SCC 98 :
1980 SCC (Cri) 40], Raghubir Singh v. State of Bihar [(1986) 4 SCC 481 :
1986 SCC (Cri) 511] and Kadra Pahadiya v. State of Bihar [(1983) 2 SCC
104 : 1983 SCC (Cri) 361] to quote only a few. This is also the avowed
objective of Section 36(1) of the Act. However, this laudable objective got
frustrated when the State Government delayed the constitution of sufficient
number of Special Courts in Greater Bombay; the process of constituting the
first two Special Courts started with the issuance of notifications under
Section 36(1) on 4-1-1991 and under Section 36(2) on 6-4-1991 almost two
years from 29-5-1989 when Amendment Act 2 of 1989 became effective.
Since the number of courts constituted to try offences under the Act were
not sufficient and the appointments of Judges to man these courts were
delayed, cases piled up and the provision in regard to enlargement on bail
being strict the offenders have had to languish in jails for want of trials. As
stated earlier Section 37 of the Act makes every offence punishable under
the Act cognizable and non-bailable and provides that no person accused of
an offence punishable for a term of five years or more shall be released on
bail unless (i) the Public Prosecutor has had an opportunity to oppose bail
and (ii) if opposed, the court is satisfied that there are reasonable grounds
for believing that he is not guilty of the offence and is not likely to indulge
in similar activity. On account of the strict language of the said provision
very few persons accused of certain offences under the Act could secure
bail. Now to refuse bail on the one hand and to delay trial of cases on the
other is clearly unfair and unreasonable and contrary to the spirit of Section
36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the
Constitution. We are conscious of the statutory provision finding place in
Section 37 of the Act prescribing the conditions which have to be satisfied
73
before a person accused of an offence under the Act can be released. Indeed,
we have adverted to this section in the earlier part of the judgment. We have
also kept in mind the interpretation placed on a similar provision in Section
20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of
Punjab [(1994) 3 SCC 569 : 1994 SCC (Cri) 899]. Despite this provision,
we have directed as above mainly at the call of Article 21 as the right to
speedy trial may even require in some cases quashing of a criminal
proceeding altogether, as held by a Constitution Bench of this Court in A.R.
Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93], release on
bail, which can be taken to be embedded in the right of speedy trial, may, in
some cases be the demand of Article 21. As we have not felt inclined to
accept the extreme submission of quashing the proceedings and setting free
the accused whose trials have been delayed beyond reasonable time for
reasons already alluded to, we have felt that deprivation of the personal
liberty without ensuring speedy trial would also not be in consonance with
the right guaranteed by Article 21. Of course, some amount of deprivation
of personal liberty cannot be avoided in such cases; but if the period of
deprivation pending trial becomes unduly long, the fairness assured by
Article 21 would receive a jolt. It is because of this that we have felt that
after the accused persons have suffered imprisonment which is half of the
maximum punishment provided for the offence, any further deprivation of
personal liberty would be violative of the fundamental right visualised by
Article 21, which has to be telescoped with the right guaranteed by Article
14 which also promises justness, fairness and reasonableness in procedural
matters. What then is the remedy? The offences under the Act are grave and,
therefore, we are not inclined to agree with the submission of the learned
counsel for the petitioner that we should quash the prosecutions and set free
the accused persons whose trials are delayed beyond reasonable time.
Alternatively, he contended that such accused persons whose trials have
been delayed beyond reasonable time and are likely to be further delayed
should be released on bail on such terms as this Court considers appropriate
to impose. This suggestion commends to us. We were told by the learned
counsel for the State of Maharashtra that additional Special Courts have
since been constituted but having regard to the large pendency of such cases
in the State we are afraid this is not likely to make a significant dent in the
huge pile of such cases. We, therefore, direct as under:
(i) Where the undertrial is accused of an offence(s) under the Act
prescribing a punishment of imprisonment of five years or less and
fine, such an undertrial shall be released on bail if he has been in jail
for a period which is not less than half the punishment provided for
the offence with which he is charged and where he is charged with
more than one offence, the offence providing the highest punishment.
If the offence with which he is charged prescribes the maximum fine,
the bail amount shall be 50% of the said amount with two sureties for
like amount. If the maximum fine is not prescribed bail shall be to the
satisfaction of the Special Judge concerned with two sureties for like
amount.
74
(ii) Where the undertrial accused is charged with an offence(s) under
the Act providing for punishment exceeding five years and fine, such
an undertrial shall be released on bail on the term set out in (i) above
provided that his bail amount shall in no case be less than Rs 50,000
with two sureties for like amount.
(iii) Where the undertrial accused is charged with an offence(s) under
the Act punishable with minimum imprisonment of ten years and a
minimum fine of Rupees one lakh, such an undertrial shall be released
on bail if he has been in jail for not less than five years provided he
furnishes bail in the sum of Rupees one lakh with two sureties for like
amount.
(iv) Where an undertrial accused is charged for the commission of an
offence punishable under Sections 31 and 31-A of the Act, such an
undertrial shall not be entitled to be released on bail by virtue of this
order.
The directives in clauses (i), (ii) and (iii) above shall be subject to the
following general conditions:
(i) The undertrial accused entitled to be released on bail shall
deposit his passport with the learned Judge of the Special Court
concerned and if he does not hold a passport he shall file an
affidavit to that effect in the form that may be prescribed by the
learned Special Judge. In the latter case the learned Special
Judge will, if he has reason to doubt the accuracy of the
statement, write to the Passport Officer concerned to verify the
statement and the Passport Officer shall verify his record and
send a reply within three weeks. If he fails to reply within the
said time, the learned Special Judge will be entitled to act on the
statement of the undertrial accused;
(ii) the undertrial accused shall on being released on bail present
himself at the police station which has prosecuted him at least
once in a month in the case of those covered under clause (i),
once in a fortnight in the case of those covered under clause (ii)
and once in a week in the case of those covered by clause (iii),
unless leave of absence is obtained in advance from the Special
Judge concerned;
(iii) the benefit of the direction in clauses (ii) and (iii) shall not
be available to those accused persons who are, in the opinion of
the learned Special Judge, for reasons to be stated in writing,
likely to tamper with evidence or influence the prosecution
witnesses;
(iv) in the case of undertrial accused who are foreigners, the
Special Judge shall, besides impounding their passports, insist
on a certificate of assurance from the Embassy/High
75
Commission of the country to which the foreigner-accused
belongs, that the said accused shall not leave the country and
shall appear before the Special Court as and when required;
(v) the undertrial accused shall not leave the area in relation to
which the Special Court is constituted except with the
permission of the learned Special Judge;
(vi) the undertrial accused may furnish bail by depositing cash
equal to the bail amount;
(vii) the Special Judge will be at liberty to cancel bail if any of
the above conditions are violated or a case for cancellation of
bail is otherwise made out; and
(viii) after the release of the undertrial accused pursuant to this
order, the cases of those undertrials who have not been released
and are in jail will be accorded priority and the Special Court
will proceed with them as provided in Section 309 of the Code.
16. We may state that the above are intended to operate as one-time
directions for cases in which the accused persons are in jail and their trials
are delayed. They are not intended to interfere with the Special Court's
power to grant bail under Section 37 of the Act. The Special Court will be
free to exercise that power keeping in view the complaint of inordinate
delay in the disposal of the pending cases. The Special Court will,
notwithstanding the directions, be free to cancel bail if the accused is found
to be misusing it and grounds for cancellation of bail exist. Lastly, we grant
liberty to apply in case of any difficulty in the implementation of this order.”
65.We may clarify on one aspect which is on the interpretation of Section 170 of
the Code. Our discussion made for the other offences would apply to these
cases also. To clarify this position, we may hold that if an accused is already
under incarceration, then the same would continue, and therefore, it is
needless to say that the provision of the Special Act would get applied
thereafter. It is only in a case where the accused is either not arrested
consciously by the prosecution or arrested and enlarged on bail, there is no
need for further arrest at the instance of the court. Similarly, we would also
add that the existence of a pari materia or a similar provision like Section
76
167(2) of the Code available under the Special Act would have the same
effect entitling the accused for a default bail. Even here the court will have to
consider the satisfaction under Section 440 of the Code.
ECONOMIC OFFENSES (CATEGORY D)
66.What is left for us now to discuss are the economic offences. The question for
consideration is whether it should be treated as a class of its own or
otherwise. This issue has already been dealt with by this Court in the case of
P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after
taking note of the earlier decisions governing the field. The gravity of the
offence, the object of the Special Act, and the attending circumstances are a
few of the factors to be taken note of, along with the period of sentence. After
all, an economic offence cannot be classified as such, as it may involve
various activities and may differ from one case to another. Therefore, it is not
advisable on the part of the court to categorise all the offences into one group
and deny bail on that basis. Suffice it to state that law, as laid down in the
following judgements, will govern the field:-
Precedents
 P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791:
23. Thus, from cumulative perusal of the judgments cited on either side
including the one rendered by the Constitution Bench of this Court, it could
be deduced that the basic jurisprudence relating to bail remains the same
inasmuch as the grant of bail is the rule and refusal is the exception so as to
ensure that the accused has the opportunity of securing fair trial. However,
while considering the same the gravity of the offence is an aspect which is
77
required to be kept in view by the Court. The gravity for the said purpose
will have to be gathered from the facts and circumstances arising in each
case. Keeping in view the consequences that would befall on the society in
cases of financial irregularities, it has been held that even economic offences
would fall under the category of “grave offence” and in such circumstance
while considering the application for bail in such matters, the Court will
have to deal with the same, being sensitive to the nature of allegation made
against the accused. One of the circumstances to consider the gravity of the
offence is also the term of sentence that is prescribed for the offence the
accused is alleged to have committed. Such consideration with regard to the
gravity of offence is a factor which is in addition to the triple test or the
tripod test that would be normally applied. In that regard what is also to be
kept in perspective is that even if the allegation is one of grave economic
offence, it is not a rule that bail should be denied in every case since there is
no such bar created in the relevant enactment passed by the legislature nor
does the bail jurisprudence provide so. Therefore, the underlining
conclusion is that irrespective of the nature and gravity of charge, the
precedent of another case alone will not be the basis for either grant or
refusal of bail though it may have a bearing on principle. But ultimately the
consideration will have to be on case-to-case basis on the facts involved
therein and securing the presence of the accused to stand trial.
 Sanjay Chandra v. CBI (2012) 1 SCC 40:
“39. Coming back to the facts of the present case, both the courts have
refused the request for grant of bail on two grounds: the primary ground is
that the offence alleged against the accused persons is very serious
involving deep-rooted planning in which, huge financial loss is caused to
the State exchequer; the secondary ground is that of the possibility of the
accused persons tampering with the witnesses. In the present case, the
charge is that of cheating and dishonestly inducing delivery of property and
forgery for the purpose of cheating using as genuine a forged document. The
punishment for the offence is imprisonment for a term which may extend to
seven years. It is, no doubt, true that the nature of the charge may be
relevant, but at the same time, the punishment to which the party may be
liable, if convicted, also bears upon the issue. Therefore, in determining
whether to grant bail, both the seriousness of the charge and the severity of
the punishment should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of the court.
The grant or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same time, right to bail is
not to be denied merely because of the sentiments of the community against
the accused. The primary purposes of bail in a criminal case are to relieve
the accused of imprisonment, to relieve the State of the burden of keeping
him, pending the trial, and at the same time, to keep the accused
constructively in the custody of the court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the court and
be in attendance thereon whenever his presence is required.
78
xxx xxx xxx
46. We are conscious of the fact that the accused are charged with economic
offences of huge magnitude. We are also conscious of the fact that the
offences alleged, if proved, may jeopardise the economy of the country. At
the same time, we cannot lose sight of the fact that the investigating agency
has already completed investigation and the charge-sheet is already filed
before the Special Judge, CBI, New Delhi. Therefore, their presence in the
custody may not be necessary for further investigation. We are of the view
that the appellants are entitled to the grant of bail pending trial on stringent
conditions in order to ally the apprehension expressed by CBI.”
ROLE OF THE COURT
67.The rate of conviction in criminal cases in India is abysmally low. It appears
to us that this factor weighs on the mind of the Court while deciding the bail
applications in a negative sense. Courts tend to think that the possibility of a
conviction being nearer to rarity, bail applications will have to be decided
strictly, contrary to legal principles. We cannot mix up consideration of a bail
application, which is not punitive in nature with that of a possible
adjudication by way of trial. On the contrary, an ultimate acquittal with
continued custody would be a case of grave injustice.
68.Criminal courts in general with the trial court in particular are the guardian
angels of liberty. Liberty, as embedded in the Code, has to be preserved,
protected, and enforced by the Criminal Courts. Any conscious failure by the
Criminal Courts would constitute an affront to liberty. It is the pious duty of
the Criminal Court to zealously guard and keep a consistent vision in
safeguarding the constitutional values and ethos. A criminal court must
79
uphold the constitutional thrust with responsibility mandated on them by
acting akin to a high priest. This Court in Arnab Manoranjan Goswami v.
State of Maharashtra, (2021) 2 SCC 427, has observed that:
“67. Human liberty is a precious constitutional value, which is undoubtedly
subject to regulation by validly enacted legislation. As such, the citizen is
subject to the edicts of criminal law and procedure. Section 482 recognises
the inherent power of the High Court to make such orders as are necessary
to give effect to the provisions of CrPC “or prevent abuse of the process of
any court or otherwise to secure the ends of justice”. Decisions of this
Court require the High Courts, in exercising the jurisdiction entrusted to
them under Section 482, to act with circumspection. In emphasising that the
High Court must exercise this power with a sense of restraint, the decisions
of this Court are founded on the basic principle that the due enforcement of
criminal law should not be obstructed by the accused taking recourse to
artifices and strategies. The public interest in ensuring the due investigation
of crime is protected by ensuring that the inherent power of the High Court
is exercised with caution. That indeed is one—and a significant—end of the
spectrum. The other end of the spectrum is equally important : the
recognition by Section 482 of the power inhering in the High Court to
prevent the abuse of process or to secure the ends of justice is a valuable
safeguard for protecting liberty. The Code of Criminal Procedure, 1898 was
enacted by a legislature which was not subject to constitutional rights and
limitations; yet it recognised the inherent power in Section 561-A. PostIndependence, the recognition by Parliament [ Section 482 CrPC, 1973] of
the inherent power of the High Court must be construed as an aid to
preserve the constitutional value of liberty. The writ of liberty runs through
the fabric of the Constitution. The need to ensure the fair investigation of
crime is undoubtedly important in itself, because it protects at one level the
rights of the victim and, at a more fundamental level, the societal interest in
ensuring that crime is investigated and dealt with in accordance with law.
On the other hand, the misuse of the criminal law is a matter of which the
High Court and the lower courts in this country must be alive. In the
present case, the High Court could not but have been cognizant of the
specific ground which was raised before it by the appellant that he was
being made a target as a part of a series of occurrences which have been
taking place since April 2020. The specific case of the appellant is that he
has been targeted because his opinions on his television channel are
unpalatable to authority. Whether the appellant has established a case for
quashing the FIR is something on which the High Court will take a final
view when the proceedings are listed before it but we are clearly of the
view that in failing to make even a prima facie evaluation of the FIR, the
High Court abdicated its constitutional duty and function as a protector of
liberty. Courts must be alive to the need to safeguard the public interest in
ensuring that the due enforcement of criminal law is not obstructed. The
fair investigation of crime is an aid to it. Equally it is the duty of courts
across the spectrum—the district judiciary, the High Courts and the
80
Supreme Court—to ensure that the criminal law does not become a weapon
for the selective harassment of citizens. Courts should be alive to both ends
of the spectrum—the need to ensure the proper enforcement of criminal law
on the one hand and the need, on the other, of ensuring that the law does not
become a ruse for targeted harassment. Liberty across human eras is as
tenuous as tenuous can be. Liberty survives by the vigilance of her citizens,
on the cacophony of the media and in the dusty corridors of courts alive to
the rule of (and not by) law. Yet, much too often, liberty is a casualty when
one of these components is found wanting.”
 (emphasis supplied)
69.We wish to note the existence of exclusive Acts in the form of Bail Acts
prevailing in the United Kingdom and various States of USA. These Acts
prescribe adequate guidelines both for investigating agencies and the courts.
We shall now take note of Section 4(1) of the Bail Act of 1976 pertaining to
United Kingdom:
“General right to bail of accused persons and others.
4.-(l) A person to whom this section applies shall be granted bail except as
provided in Schedule 1 to this Act.”
70. Even other than the aforesaid provision, the enactment does take into
consideration of the principles of law which we have discussed on the
presumption of innocence and the grant of bail being a matter of right.
71.Uniformity and certainty in the decisions of the court are the foundations of
judicial dispensation. Persons accused with same offense shall never be
treated differently either by the same court or by the same or different courts.
Such an action though by an exercise of discretion despite being a judicial
81
one would be a grave affront to Articles 14 and 15 of the Constitution of
India.
72.The Bail Act of United Kingdom takes into consideration various factors. It is
an attempt to have a comprehensive law dealing with bails by following a
simple procedure. The Act takes into consideration clogging of the prisons
with the undertrial prisoners, cases involving the issuance of warrants,
granting of bail both before and after conviction, exercise of the power by the
investigating agency and the court, violation of the bail conditions, execution
of bond and sureties on the unassailable principle of presumption and right to
get bail. Exceptions have been carved out as mentioned in Schedule I dealing
with different contingencies and factors including the nature and continuity of
offence. They also include Special Acts as well. We believe there is a pressing
need for a similar enactment in our country. We do not wish to say anything
beyond the observation made, except to call on the Government of India to
consider the introduction of an Act specifically meant for granting of bail as
done in various other countries like the United Kingdom. Our belief is also
for the reason that the Code as it exists today is a continuation of the preindependence one with its modifications. We hope and trust that the
Government of India would look into the suggestion made in right earnest.
SUMMARY/CONCLUSION
82
73.In conclusion, we would like to issue certain directions. These directions are
meant for the investigating agencies and also for the courts. Accordingly, we
deem it appropriate to issue the following directions, which may be subject to
State amendments.:
a) The Government of India may consider the introduction of a separate
enactment in the nature of a Bail Act so as to streamline the grant of bails.
b) The investigating agencies and their officers are duty-bound to comply
with the mandate of Section 41 and 41A of the Code and the directions
issued by this Court in Arnesh Kumar (supra). Any dereliction on their
part has to be brought to the notice of the higher authorities by the court
followed by appropriate action.
c) The courts will have to satisfy themselves on the compliance of Section
41 and 41A of the Code. Any non-compliance would entitle the accused
for grant of bail.
d) All the State Governments and the Union Territories are directed to
facilitate standing orders for the procedure to be followed under Section
41 and 41A of the Code while taking note of the order of the High Court
of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the
standing order issued by the Delhi Police i.e. Standing Order No. 109 of
2020, to comply with the mandate of Section 41A of the Code.
e) There need not be any insistence of a bail application while considering
the application under Section 88, 170, 204 and 209 of the Code.
83
f) There needs to be a strict compliance of the mandate laid down in the
judgment of this court in Siddharth (supra).
g) The State and Central Governments will have to comply with the
directions issued by this Court from time to time with respect to
constitution of special courts. The High Court in consultation with the
State Governments will have to undertake an exercise on the need for the
special courts. The vacancies in the position of Presiding Officers of the
special courts will have to be filled up expeditiously.
h) The High Courts are directed to undertake the exercise of finding out the
undertrial prisoners who are not able to comply with the bail conditions.
After doing so, appropriate action will have to be taken in light of Section
440 of the Code, facilitating the release.
i) While insisting upon sureties the mandate of Section 440 of the Code has
to be kept in mind.
j) An exercise will have to be done in a similar manner to comply with the
mandate of Section 436A of the Code both at the district judiciary level
and the High Court as earlier directed by this Court in Bhim Singh
(supra), followed by appropriate orders.
k) Bail applications ought to be disposed of within a period of two weeks
except if the provisions mandate otherwise, with the exception being an
intervening application. Applications for anticipatory bail are expected to
be disposed of within a period of six weeks with the exception of any
intervening application.
l) All State Governments, Union Territories and High Courts are directed to
file affidavits/ status reports within a period of four months.
84
74.The Registry is directed to send copy of this judgment to the Government of
India and all the State Governments/Union Territories.
75.As such, M.A. 1849 of 2021 is disposed of in the aforesaid terms. I.A.
No.51315 of 2022, application for intervention is allowed. I.A. Nos. 164761
of 2021, 148421 of 2021 and M.A. Diary No.29164 of 2021 (I.A.No.154863
of 2021), applications for clarification/direction are also disposed of. List for
compliance after a period of four months from today.
…….………………………J.
(SANJAY KISHAN KAUL)
……………………………J.
 (M.M. SUNDRESH)
New Delhi
July 11, 2022
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