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

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

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"

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.

(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.

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

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

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.

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

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.

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].”

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

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

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

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;

(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

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;

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

(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;

(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.

(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.

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

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

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

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.

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

28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No.

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

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.

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.”

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

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

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

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;

this behalf by the High Court, shall authorise detention in the

custody of the police.

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

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

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

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

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

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

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

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.

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

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.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

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;

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

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

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

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

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

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

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

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:

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.

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].

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

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.

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

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.

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

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.

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

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.”

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

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

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

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

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

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 -

“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

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."

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

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

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

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

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

“[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.)

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

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

with on a case-to-case basis again keeping in view the general principle of

law and the provisions, as discussed by us.

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.

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

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.

(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

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

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

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.

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

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

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

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

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.

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.

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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SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR

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