SATENDER KUMAR ANTIL versus CENTRAL BUREAU OF INVESTIGATION & ANR. on 11 July 2022

[2022] 10 S.C.R. 351

SATENDER KUMAR ANTIL

v.

CENTRAL BUREAU OF INVESTIGATION & ANR.

(Miscellaneous Application No.1849 of 2021)

JULY 11, 2022

[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]

Bail – Grant of – Code of Criminal Procedure, 1973 – ss. 41,41A, 88, 170, 204 and 209 – Constitution of India – Arts. 21 & 22– Applications have been filed seeking certain directions/clarifications, to deal with the aspects governing the grant of bail –Held: The Government of India may consider the introduction of aseparate enactment in the nature of a Bail Act so as to streamlinethe grant of bail – While considering the application for enlargementon bail, Courts will have to satisfy themselves on the due complianceof sec. 41 of CrPC – Any non-compliance would entitle the accusedto a grant of bail – Section 41 and 41A are facets of Article 21 ofthe Constitution – The directions of Arnesh Kumar v. State of Biharought to be complied with in letter and spirit by the investigatingand prosecuting agencies – While the view expressed by the SupremeCourt on the non-compliance of Section 41 and the consequencesthat flow from it has to be kept in mind by the Court, which isexpected to be reflected in the orders – To take care of not only theunwarranted arrests, but also the clogging of bail applicationsbefore various Courts, all the State Governments and the UnionTerritories directed to facilitate standing orders, to comply with themandate of Section 41A – There need not be any insistence of abail application while considering the application u/ss. 88, 170,204 and 209 of the Code.

Code of Criminal Procedure, 1973 – Special Courts –Constitution of – The State and Central Governments will have tocomply with the directions issued by Supreme Court from time totime with respect to constitution of special courts – The High Courtin consultation with the State Governments will have to undertakean exercise on the need for the special courts – The vacancies inthe position of Presiding Officers of the special courts will have tobe filled up expeditiously.

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ACode of Criminal Procedure, 1973 – ss. 436A, 440 –Undertrial Prisoners – The statistics placed before the Courtindicated that more than 2/3rd of the inmates of the prisons constituteundertrial prisoners – Of this category of prisoners, majority maynot even be required to be arrested despite registration of acognizable offense, being charged with offenses punishable forBseven years or less – The High Courts are directed to undertake theexercise of finding out the undertrial prisoners who are not able tocomply with the bail conditions – After doing so, appropriate actionwill have to be taken in light of sec. 440, facilitating the release –While insisting upon sureties the mandate of sec. 440 of the CodeChas to be kept in mind – An exercise will have to be done in asimilar manner to comply with the mandate of sec. 436A both at thedistrict judiciary level and the High Court as earlier directed bythis Court in Bhim Singh, followed by appropriate orders.

Code of Criminal Procedure, 1973 – Bail Application –DDisposal of – Timeframe – Bail applications ought to be disposedof within a period of two weeks except if the provisions mandateotherwise, with the exception being an intervening application –Applications for anticipatory bail are expected to be disposed ofwithin a period of six weeks with the exception of any interveningapplication.E

Code of Criminal Procedure, 1973 – Sec. 167(2) – Objectand presumption under – It has got a laudable object behind it,which is to ensure an expeditious investigation and a fair trial, andto set down a rationalised procedure that protects the interests ofthe indigent sections of society – This is also another limb of Art. 21F– Presumption of innocence is also inbuilt in this provision – Theright enshrined is an absolute and indefeasible one, inuring to thebenefit of suspect – A duty is enjoined upon the agency to completethe investigation within the time prescribed and a failure would enablethe release of the accused – Such a right cannot be taken awayeven during any unforeseen circumstances – As a consequence ofGthe right flowing from Sec.167(2), courts will have to give due effectto it, and thus any detention beyond this period would certainly beillegal, being an affront to the liberty of the person concerned –Therefore, it is not only the duty of the investigating agency butalso the courts to see to it that an accused gets the benefit of SectionH167 (2).

Code of Criminal Procedure, 1973 – Sec. 170 – Scope andambit – A power which is to be exercised by the court after thecompletion of the investigation – In a case where the prosecutiondoes not require custody of the accused, there is no need for anarrest when a case is sent to the magistrate u/s. 170 – There is noteven a need for filing a bail application, as the accused is merelyforwarded to the court for the framing of charges and issuance ofprocess for trial – However, cases in which the accused personsare already in custody, then, the bail application has to be decidedon its own merits – There needs to be Strict Complanace of hemandate laid down in Siddharth v. State of U.P.

Code of Criminal Procedure, 1973 – ss. 88 & 204 – s. 204gives a discretion to a Magistrate, and being procedural in nature,it is to be exercised as a matter of course by following the prescriptionof sec. 88 – Thus, issuing a warrant may be an exception in whichcase the Magistrate will have to give reasons.

Code of Criminal Procedure, 1973 – s. 209 – It gives amplepower to the Magistrate to remand a person into custody during oruntil the conclusion of the trial – Since the power is to be exercisedby the Magistrate on a case-to-case basis, it is his wisdom in eitherremanding an accused or granting bail – Even here, it is judicialdiscretion which the Magistrate has to exercise – A Magistrate cantake a call even without an application for bail if he is inclined todo so.

Code of Criminal Procedure, 1973 – sec. 309 – Bail – Itmandates courts to continue the proceedings on a day-to-day basistill the completion of the evidence – Any delay on the part of thecourt or the prosecution would certainly violate Art. 21 – Courtsshall make sure that the accused does not suffer for the delayoccasioned due to no fault of his own – Therefore, while it isexpected of the court to comply with sec. 309 to the extent possible,an unexplained, avoidable and prolonged delay in concluding atrial, appeal or revision would certainly be a factor for theconsideration of bail.

Code of Criminal Procedure, 1973 – sec. 389 – Bail – Itconcerns itself with circumstances pending appeal leading to therelease of the appellant on bail – The power exercisable u/s. 389 is AB

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Adifferent from that of the one either u/ss. 437 or 439, pending trial– This is for the reason that “presumption of innocence” and “bailis the rule and jail is the exception” may not be available to theappellant who has suffered a conviction – A mere pendency of anappeal per se would not be a factor – However, delay in taking upthe main appeal or revision coupled with the benefit conferred u/s.B436A of the Code among other factors ought to be considered for afavourable release on bail.

Code of Criminal Procedure, 1973 – sec. 436A – In a casewhere an appeal is pending for a longer time, to bring it u/s. 436A,the period of incarceration in all forms will have to be reckoned,Cand so also for the revision – When a person has undergone detentionfor a period extending to one-half of the maximum period ofimprisonment specified for that offense he shall be released by thecourt on his personal bond with or without sureties – There is noteven a need for a bail application in a case of this natureDparticularly when the reasons for delay are not attributable againstthe accused.

Code of Criminal Procedure, 1973 – sec. 437 – It empowersthe Magistrate to deal with all the offenses while considering anapplication for bail with the exception of an offense punishableEeither with life imprisonment or death triable exclusively by the Courtof Sessions.

Code of Criminal Procedure, 1973 – sec. 440 – The amountof every bond executed is to be fixed with regard to the circumstancesof the case and shall not be excessive – Reasonableness of theFbond and surety is something which the court has to keep in mindwhenever the same is insisted upon, and therefore while exercisingthe power u/s. 88 also the said factum has to be kept in mind –Imposing a condition which is impossible of compliance would bedefeating the very object of the release.

GCode of Criminal Procedure, 1973 – ss. 436A, 309 167(2),440 – Special Acts – The general principle governing delay wouldapply to Special Acts also – To make it clear, the provision containedin sec. 436A would apply to the Special Acts also in the absence ofany specific provision – There is a need to comply with the directionsof this Court to expedite the process and also a stricter complianceH

of Sec. 309 – The existence of a pari materia or a similar provisionlike sec.167(2) available under the Special Act would have the sameeffect entitling the accused for a default bail – Even here the courtwill have to consider the satisfaction u/s. 440.

Bail – Whether Economic Offences should be treated as aclass of its own or otherwise – The gravity of the offence, the objectof the Special Act, and the attending circumstances are a few of thefactors to be taken note of, along with the period of sentence –After all, an economic offence cannot be classified as such, as itmay involve various activities and may differ from one case toanother – Therefore, it is not advisable on the part of the court tocategorise all the offences into one group and deny bail on thatbasis.

Practice and Procedures – Criminal Trial – Approach of theCourt - Criminal courts in general with the trial court in particularare the guardian angels of liberty - Any conscious failure by theCriminal Courts would constitute an affront to liberty - It is thepious duty of the Criminal Court to zealously guard and keep aconsistent vision in safeguarding the constitutional values and ethos- A criminal court must uphold the constitutional thrust withresponsibility mandated on them by acting akin to a high priest.

Bail Application – Judicial Dispensation - Courts tend to thinkthat the possibility of a conviction being nearer to rarity, bailapplications will have to be decided strictly, contrary to legalprinciples – The Court cannot mix up consideration of a bailapplication, which is not punitive in nature with that of a possibleadjudication by way of trial – On the contrary, an ultimate acquittalwith continued custody would be a case of grave injustice –Uniformity and certainty in the decisions of the court are thefoundations of judicial dispensation - Persons accused with sameoffense shall never be treated differently either by the same courtor by the same or different courts – Such an action though by anexercise of discretion despite being a judicial one would be a graveaffront to Arts. 14 and 15 of the Constitution of India.

Code of Criminal Procedure, 1973 – Trial - Defined - Anextended meaning has to be given to this word for the purpose ofenlargement on bail to include, the stage of investigation and A

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Athereafter - In the former stage, an arrest followed by a policecustody may be warranted for a thorough investigation, while inthe latter what matters substantially is the proceedings before theCourt in the form of a trial - An appeal or revision shall also beconstrued as a facet of trial when it comes to the consideration ofbail on suspension of sentence.B

Code of Criminal Procedure, 1973 – Bail – Defined - A bailis nothing but a surety inclusive of a personal bond from the accused- It means the release of an accused person either by the orders ofthe Court or by the police or by the Investigating Agency - It is aconditional release on the solemn undertaking by the suspect thatChe would cooperate both with the investigation and the trial - Bail is the rule and jail is the exception.

Presumption of innocence - Onus on the prosecution to provethe guilt before the Court - Presumption of innocence being a facetof Article 21, shall inure to the benefit of the accused – The weightageDof the evidence has to be assessed on the principle of beyondreasonable doubt.

Disposing of the applications, the Court HELD: 1. These directions are meant for the investigatingEagencies and also for the courts. Accordingly, the Court deem itappropriate to issue the following directions, which may be subjectto State amendments.:

a.) The Government of India may consider the introductionof a separate enactment in the nature of a Bail Act so as toFstreamline 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 theCode and the directions issued by this Court in Arnesh Kumar.Any dereliction on their part has to be brought to the notice ofthe higher authorities by the court followed by appropriate action.G

c.) The courts will have to satisfy themselves on thecompliance 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 TerritoriesHare directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking noteof the order of the High Court of Delhi dated 07.02.2018 in WritPetition (C) No. 7608 of 2017 and the standing order issued bythe Delhi Police i.e. Standing Order No. 109 of 2020, to complywith the mandate of Section 41A of the Code.

e.) There need not be any insistence of a bail applicationwhile considering the application under Section 88, 170, 204 and209 of the Code.

f.) There needs to be a strict compliance of the mandatelaid down in the judgment of this court in Siddharth.

g.) The State and Central Governments will have to complywith the directions issued by this Court from time to time withrespect to constitution of special courts. The High Court inconsultation with the State Governments will have to undertakean exercise on the need for the special courts. The vacancies inthe position of Presiding Officers of the special courts will haveto be filled up expeditiously.

h.) The High Courts are directed to undertake the exerciseof finding out the undertrial prisoners who are not able to complywith the bail conditions. After doing so, appropriate action willhave to be taken in light of Section 440 of the Code, facilitatingthe release.

i.) While insisting upon sureties the mandate of Section 440of the Code has to be kept in mind.

j.) An exercise will have to be done in a similar manner tocomply with the mandate of Section 436A of the Code both at thedistrict judiciary level and the High Court as earlier directed bythis Court in Bhim Singh, followed by appropriate orders.

k.) Bail applications ought to be disposed of within a periodof two weeks except if the provisions mandate otherwise, withthe exception being an intervening application. Applications foranticipatory bail are expected to be disposed of within a period ofsix weeks with the exception of any intervening application.

l.) All State Governments, Union Territories and HighCourts are directed to file affidavits/ status reports within a periodof four months. [Para 73][445-F-G; 446-A-H; 447-A-C]

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Nikesh Tarachand Shah v. Union of India (2018) 11SCC 1 : [2017] 12 SCR 358; Sanjay Chandra v. CBI(2012) 1 SCC 40 : [2011] 13 SCR 309; Corey LeeJames Myers v. Her Majesty the Queen 2019 SCC 18;Her Majesty the Queen v. Kevin Antic and Ors. 2017SCC 27; Arnesh Kumar v. State of Bihar (2014) 8 SCC273 : [2014] 8 SCR 128; Inder Mohan Goswami v. Stateof Uttaranchal (2007) 12 SCC 1 : [2007] 10 SCR 847;Pankaj Jain v. Union of India (2018) 5 SCC 743 :[2018] 9 SCR 248; M. Ravindran v. Directorate ofRevenue Intelligence (2021) 2 SCC 485; Siddharth v.State of U.P. (2021) 1 SCC 676; Hussainara Khatoon& Ors. v Home Secretary, State of Bihar, 1980 (1) SCC81 : [1979] 3 SCR 169; Hussain & Anr. v. Union ofIndia & Ors. 2017 (5) SCC 702 : [2017] 2 SCR 626;Surinder Singh @ Shingara Singh v State of Punjab2005 (7) SCC 387 : [2005] 2 Suppl. SCR 1172; AtulTripathi v State of U.P. & Anr. 2014 (9) SCC 177 :[2014] 14 SCR 1188; Angana v. State of Rajasthan(2009) 3 SCC 767 : [2009] 1 SCR 941; Sunil Kumar v.Vipin Kumar (2014) 8 SCC 868; Bhim Singh v. Unionof India (2015) 13 SCC 605; Prahlad Singh Bhati v.NCT, Delhi (2001) 4 SCC 280 : [2001] 2 SCR 684;The Balasaheb Satbhai Merchant Coop Bank Ltd. vs.The State of Maharashtra and Ors. 2011 SCC OnLineBom 1261; In re Kenneth Humphrey, S 247278; 482P.3d 1008 (2021); Union of India v. K.A. Najeeb (2021)3 SCC 713; Supreme Court Legal Aid Committee v.Union of India (1994) 6 SCC 731 : [1994] 4 Suppl.SCR 386; P. Chidambaram v. Directorate of Enforcement(2020) 13 SCC 791 : [2019] 14 SCR 450; SanjayChandra v. CBI (2012) 1 SCC 40 : [2011] 13 SCR 309;Arnab Manoranjan Goswami v. State of Maharashtra(2021) 2 SCC 427 – referred to Case Law Reference [2017] 12 SCR 358[2011] 13 SCR 309

SATENDER KUMAR ANTIL v. CENTRAL BUREAU OFINVESTIGATION & ANR.

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CRIMINAL APPELLATE JURISDICTION : MiscellaneousApplication No.1849 of 2021. In Special Leave Petition (Crl.) No.5191of 2021

From the Judgment and Order dated 01.07.2021 of the High Courtof Judicature at Allahabad CRIMINAL MISC. ANTICIPATORY BAILNo.7598 of 2021.

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Miscellaneous Application Diary No.29164 of 2021 In SpecialLeave Petition (Crl.) No.5191 of 2021

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AS. V. Raju, ASG, Sidharth Luthra, Amit Desai, Sr. Advs., ChiragMadan, Hardik Rupal, Ms. Shubhangi Jain, Ayush Kaushik, LakshayMehta, Shashank Gaurav, Akbar Siddique, Ms. Anzu K. Varkey, Ms.Sairica Raju, Ms. Annam Venkatesh, Ms. Priyanka Das, Om PrakashShukla, Mohammed Akhil, Udai Khanna, Ritwiz Rishabh, AnshumanSingh, Ankit Bhatia, Harsh Paul Singh, Arvind Kumar Sharma, GautamBAwasthi, Amit K. Nain, Ms. Stuti Gujral, Ms. Priti Verma, Ms. SaushriyaHavelia, Sahil Ghai, Ms. Priyashree Sharma PH, Syed Faraz Alam, KushChaturvedi, Arjun Garg, S. Mahesh Sahasranaman, Gopalkrishna Shenoy,Rohan Dakshini, Ms. Pooja Kothari, Ashwin Thool, Pratik Rajopadhyay,Aakash Nandolia, Ms. Sagun Srivastava, Mahesh Agarwal, Arshit Anand,CNishant Rao, E. C. Agrawala, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

“Liberty is one of the most essential requirements of the modernman. It is said to be the delicate fruit of a mature civilization. It is theDvery quintessence of civilized existence and essential requirement of amodern man”

- John E.E.D. in “Essays on Freedom and Power”

1. Taking note of the continuous supply of cases seeking bail afterfiling of the final report on a wrong interpretation of Section 170 of theECode of Criminal Procedure (hereinafter referred to as “the Code” forshort), an endeavour was made by this Court to categorize the types ofoffenses to be used as guidelines for the future. Assistance was soughtfrom Shri Sidharth Luthra, learned senior counsel, and learned AdditionalSolicitor General Shri S.V. Raju.After allowing the application forintervention, an appropriate Order was passed on 07.10.2021. The sameFis reproduced as under:

“We have been provided assistance both by Mr. S.V. Raju, learnedAdditional Solicitor General and Mr. Sidharth Luthra, learned seniorcounsel and there is broad unanimity in terms of the suggestionsmade by learned ASG. In terms of the suggestions, the offencesGhave been categorized and guidelines are sought to be laid downfor grant of bail, without fettering the discretion of the courtsconcerned and keeping in mind the statutory provisions.

We are inclined to accept the guidelines and make them a part ofthe order of the Court for the benefit of the Courts below. TheHguidelines are as under:

Categories/Types of Offences

A) Offences punishable with imprisonment of 7 years or less notfalling in category B & D.

B) Offences punishable with death, imprisonment for life, orimprisonment for more than 7 years.

C) Offences punishable under Special Acts containing stringentprovisions 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 appearingbefore 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 permittingappearance 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 BailableWarrant.

d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if suchan application is moved on behalf of the accused before executionof the NBW on an undertaking of the accused to appear physicallyon the next date/s of hearing.

e) Bail applications of such accused on appearance may be decidedw/o the accused being taken in physical custody or by grantinginterim bail till the bail application is decided.

CATEGORY B/D

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On appearance of the accused in Court pursuant to process issuedbail application to be decided on merits.

CATEGORY C

Same as Category B & D with the additional condition ofcompliance 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 casesand complaint cases.

The trial Courts and the High Courts will keep in mind the aforesaidguidelines while considering bail applications. The caveat whichhas been put by learned ASG is that where the accused have notcooperated in the investigation nor appeared before theInvestigating Officers, nor answered summons when the Courtfeels that judicial custody of the accused is necessary for thecompletion of the trial, where further investigation including apossible recovery is needed, the aforesaid approach cannot givethem benefit, something we agree with.

We may also notice an aspect submitted by Mr. Luthra that whileissuing notice to consider bail, the trial Court is not precluded fromgranting interim bail taking into consideration the conduct of theaccused during the investigation which has not warranted arrest.On this aspect also we would give our imprimatur and naturallythe bail application to be ultimately considered, would be guidedby the statutory provisions.

The suggestions of learned ASG which we have adopted havecategorized a separate set of offences as “economic Offences”not covered by the special Acts. In this behalf, suffice to say onthe submission of Mr. Luthra that this Court in Sanjay Chandravs.CBI, (2012) 1 SCC 40 has observed in para 39 that in determiningwhether 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 ofthe aforesaid guidelines but do form a different nature of offencesand thus the seriousness of the charge has to be taken into account but simultaneously, the severity of the punishment imposed by thestatute would also be a factor.

We appreciate the assistance given by the learned counsels andthe positive approach adopted by the learned ASG.

The SLP stands disposed of and the matter need not be listedfurther.

A copy of this order be circulated to the Registrars of the differentHigh Courts to be further circulated to the trial Courts so that theunnecessary 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 tocategory ‘C’ wherein, inadvertently, Section 45 of the Prevention ofMoney 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 endeavourto work out some of the fine tuning which is required to givemeaning to the intent of our order dated 07.10.2021.

We make it clear that our intent was to ease the process of bailand not to restrict it. The order, in no way, imposes any additionalfetters but is in furtherance of the line of judicial thinking to enlargethe scope of bail.

At this stage, suffice for us to say that while referring to category‘C’, inadvertently, Section 45 of Prevention of Money launderingAct (PMLA) has been mentioned which has been struck downby this Court. Learned ASG states that an amendment was madeand that is pending challenge before this Court before a differentBench. That would be a matter to be considered by that Bench.

We are also putting a caution that merely by categorizing certainoffences as economic offences which may be non-cognizable, itdoes 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 acharge sheet is filed, would not be an ipso facto cause to arrest A

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Athe petitioner, an aspect in general clarified by us in Criminal AppealNo.838/2021 Siddharth v. State of Uttar Pradesh &Anr. dated16.08.2021.”

3. Some more applications have been filed seeking certaindirections/clarifications, while impressing this Court to deal with the otherBaspects governing the grant of bail. We have heard Shri Amit Desai,learned senior counsel, Shri Sidharth Luthra, learned senior counsel, andlearned Additional Solicitor General Shri S.V. Raju.

4. Having found that special leave petitions pertaining to differentoffenses, particularly on the rejection of bail applications are being filedCbefore this Court, despite various directions issued from time to time, wedeem it appropriate to undertake this exercise. We do make it clear thatall 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 onits own merits.PREVAILING SITUATIOND

5. Jails in India are flooded with undertrial prisoners. The statisticsplaced before us would indicate that more than 2/3[rd] of the inmates ofthe prisons constitute undertrial prisoners. Of this category of prisoners,majority may not even be required to be arrested despite registration ofEa cognizable offense, being charged with offenses punishable for sevenyears or less. They are not only poor and illiterate but also would includewomen.Thus, there is a culture of offense being inherited by many ofthem. As observed by this Court, it certainly exhibits the mindset, a vestigeof colonial India, on the part of the Investigating Agency, notwithstandingthe fact arrest is a draconian measure resulting in curtailment of liberty,Fand thus to be used sparingly. In a democracy, there can never be animpression that it is a police State as both are conceptually opposite toeach other.

DEFINITION OF TRIAL

6. The word ‘trial’ is not explained and defined under the Code.AnGextended meaning has to be given to this word for the purpose ofenlargement on bail to include, the stage of investigation and thereafter.Primary considerations would obviously be different between these twostages. In the former stage, an arrest followed by a police custody maybe warranted for a thorough investigation, while in the latter what mattersHsubstantially 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 isfor a more favourable consideration towards enlargement wheninvestigation is completed, of course, among other factors.

7. Similarly, an appeal or revision shall also be construed as afacet of trial when it comes to the consideration of bail on suspension ofsentence.

DEFINITION OF BAIL

8. The term “bail” has not been defined in the Code, though isused very often.A bail is nothing but a surety inclusive of a personalbond from the accused. It means the release of an accused person eitherby 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 whileenabling any interference in the judicial process. Thus, it is a conditionalrelease on the solemn undertaking by the suspect that he would cooperateboth with the investigation and the trial. The word “bail” has been definedin the Black’s Law Dictionary, 9[th ]Edn., pg. 160 as: - “A security such as cash or a bond; esp., security required by acourt for the release of a prisoner who must appear in court at afuture time.”

10. Wharton’s Law Lexicon, 14th Edn., pg. 105 defines bail as: - “to set at liberty a person arrested or imprisoned, on security beingtaken for his appearance on a day and at a place certain, whichsecurity is called bail, because the party arrested or imprisoned isdelivered into the hands of those who bind themselves or becomebail for his due appearance when required, in order that he maybe safely protected from prison, to which they have, if they fearhis 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 hasbeen 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) 11SCC 1, held that:

“19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh SinghSibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri)

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465], the purpose of granting bail is set out with great felicity asfollows: (SCC pp. 586-88, paras 27-30)

“27. It is not necessary to refer to decisions which deal withthe right to ordinary bail because that right does not furnish anexact parallel to the right to anticipatory bail. It is, however,interesting that as long back as in 1924 it was held by the HighCourt of Calcutta in Nagendra Nath Chakravarti, Inre [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80that the object of bail is to secure the attendance of the accusedat the trial, that the proper test to be applied in the solution ofthe question whether bail should be granted or refused iswhether it is probable that the party will appear to take his trialand that it is indisputable that bail is not to be withheld as apunishment. In two other cases which, significantly, are the“Meerut Conspiracy cases” observations are to be foundregarding the right to bail which deserve a special mention.In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it wasobserved, while dealing with Section 498 which correspondsto the present Section 439 of the Code, that it conferred uponthe Sessions Judge or the High Court wide powers to grantbail which were not handicapped by the restrictions in thepreceding Section 497 which corresponds to the presentSection 437. It was observed by the Court that there was nohard-and-fast rule and no inflexible principle governing theexercise of the discretion conferred by Section 498 and thatthe only principle which was established was that the discretionshould be exercised judiciously. In Emperor v. H.L.Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLineAll 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 itwas said that it was very unwise to make an attempt to laydown any particular rules which will bind the High Court, havingregard to the fact that the legislature itself left the discretion ofthe court unfettered. According to the High Court, the varietyof cases that may arise from time to time cannot be safelyclassified and it is dangerous to make an attempt to classifythe cases and to say that in particular classes a bail may begranted but not in other classes. It was observed that the principle to be deduced from the various sections in the CriminalProcedure Code was that grant of bail is the rule and refusal isthe exception. An accused person who enjoys freedom is in amuch better position to look after his case and to properly defendhimself than if he were in custody. As a presumably innocentperson he is therefore entitled to freedom and every opportunityto look after his own case. A presumably innocent person musthave 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: (SCCp. 242, para 1)

‘1. … the issue [of bail] is one of liberty, justice, publicsafety and burden of the public treasury, all of which insistthat a developed jurisprudence of bail is integral to a sociallysensitised judicial process. … After all, personal liberty ofan accused or convict is fundamental, suffering lawfuleclipse only in terms of “procedure established by law”.The last four words of Article 21 are the life of that humanright.’

29. In Gurcharan Singh v. State(UT of Delhi) [GurcharanSingh 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 matterof granting bail. The facts and circumstances of each casewill govern the exercise of judicial discretion in granting orcancelling 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 thecourt, the granting or denial is regulated, to a large extent, bythe facts and circumstances of each particular case. Since theobject of the detention or imprisonment of the accused is tosecure his appearance and submission to the jurisdiction andthe judgment of the court, the primary inquiry is whether arecognizance or bond would effect that end.’

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It is thus clear that the question whether to grant bail or notdepends for its answer upon a variety of circumstances, thecumulative effect of which must enter into the judicial verdict.Any one single circumstance cannot be treated as of universalvalidity or as necessarily justifying the grant or refusal of bail.”

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24. Article 21 is the Ark of the Covenant so far as the FundamentalRights Chapter of the Constitution is concerned. It deals withnothing less sacrosanct than the rights of life and personal libertyof the citizens of India and other persons. It is the only article inthe Fundamental Rights Chapter (along with Article 20) that cannotbe suspended even in an emergency [see Article 359(1) of theConstitution]. At present, Article 21 is the repository of a vastnumber of substantive and procedural rights post ManekaGandhi 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 SCC40, has observed that:

“21. In bail applications, generally, it has been laid down from theearliest times that the object of bail is to secure the appearance ofthe accused person at his trial by reasonable amount of bail. Theobject of bail is neither punitive nor preventative. Deprivation ofliberty must be considered a punishment, unless it is required toensure that an accused person will stand his trial when calledupon. The courts owe more than verbal respect to the principlethat punishment begins after conviction, and that every man isdeemed to be innocent until duly tried and duly found guilty.

22. From the earliest times, it was appreciated that detention incustody pending completion of trial could be a cause of greathardship. From time to time, necessity demands that someunconvicted persons should be held in custody pending trial tosecure their attendance at the trial but in such cases, “necessity”is the operative test. In this country, it would be quite contrary tothe concept of personal liberty enshrined in the Constitution thatany person should be punished in respect of any matter, uponwhich, he has not been convicted or that in any circumstances, heshould be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the mostextraordinary circumstances.

23. Apart from the question of prevention being the object of refusalof bail, one must not lose sight of the fact that any imprisonmentbefore conviction has a substantial punitive content and it wouldbe improper for any court to refuse bail as a mark of disapprovalof former conduct whether the accused has been convicted for itor not or to refuse bail to an unconvicted person for the purposeof giving him a taste of imprisonment as a lesson.”

PRESUMPTION OF INNOCENCE

13. Innocence of a person accused of an offense is presumedthrough a legal fiction, placing the onus on the prosecution to prove theguilt before the Court. Thus, it is for that agency to satisfy the Court thatthe arrest made was warranted and enlargement on bail is to be denied.

14. Presumption of innocence has been acknowledged throughoutthe world. Article 14 (2) of the International Covenant on Civil and PoliticalRights, 1966 and Article 11 of the Universal Declaration of Human Rightsacknowledge the presumption of innocence, as a cardinal principle oflaw, until the individual is proven guilty.

15. Both in Australia and Canada, a prima facie right to areasonable bail is recognized based on the gravity of offence. In theUnited States, it is a common practice for bail to be a cash deposit. Inthe United Kingdom, bail is more likely to consist of a set of restrictions.

16. The Supreme Court of Canada in Corey Lee James Myersv. Her Majesty the Queen, 2019 SCC 18, has held that bail has to beconsidered on acceptable legal parameters. It thus confers adequatediscretion on the Court to consider the enlargement on bail of whichunreasonable 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 isan essential element of an enlightened criminal justice system. Itentrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the libertyof accused persons. This right has two aspects: a person chargedwith an offence has the right not to be denied bail without justcause and the right to reasonable bail. Under the first aspect, a AB

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provision may not deny bail without “just cause” there is just causeto deny bail only if the denial occurs in a narrow set ofcircumstances, and the denial is necessary to promote the properfunctioning of the bail system and is not undertaken for any purposeextraneous to that system. The second aspect, the right toreasonable bail, relates to the terms of bail, including the quantumof any monetary component and other restrictions that are imposedon the accused for the release period. It protects accused personsfrom conditions and forms of release that are unreasonable.

While a bail hearing is an expedited procedure, the bail provisionsare federal law and must be applied consistently and fairly in allprovinces and territories. A central part of the Canadian law ofbail consists of the ladder principle and the authorized forms ofrelease, which are found in s. 515(1) to (3) of the Criminal Code.Save for exceptions, an unconditional release on an undertakingis the default position when granting release. Alternative forms ofrelease are to be imposed in accordance with the ladder principle,which must be adhered to strictly: release is favoured at the earliestreasonable opportunity and on the least onerous grounds. If theCrown proposes an alternate form of release, it must show whythis form is necessary for a more restrictive form of release to beimposed. Each rung of the ladder must be considered individuallyand must be rejected before moving to a more restrictive form ofrelease. Where the parties disagree on the form of release, it isan error of law for a judge to order a more restrictive form withoutjustifying the decision to reject the less onerous forms. Arecognizance with sureties is one of the most onerous forms ofrelease, and should not be imposed unless all the less onerousforms have been considered and rejected as inappropriate. It isnot necessary to impose cash bail on accused persons if they ortheir sureties have reasonably recoverable assets and are able topledge those assets to the satisfaction of the court. A recognizanceis functionally equivalent to cash bail and has the same coerciveeffect. Cash bail should be relied on only in exceptionalcircumstances in which release on a recognizance with suretiesis unavailable. When cash bail is ordered, the amount must not beset so high that it effectively amounts to a detention order, whichmeans that the amount should be no higher than necessary tosatisfy the concern that would otherwise warrant detention and SATENDER KUMAR ANTIL v. CENTRAL BUREAU OFINVESTIGATION & ANR. [M. M. SUNDRESH, J.]

proportionate to the means of the accused and the circumstancesof the case. The judge is under a positive obligation to inquire intothe ability of the accused to pay. Terms of releaseunder s. 515(4) should only be imposed to the extent that they arenecessary to address concerns related to the statutory criteria fordetention and to ensure that the accused is released. They mustnot be imposed to change an accused person’s behaviour or topunish an accused person. Where a bail review is requested, courtsmust 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 provisionsin many of the countries world-over governing the consideration forenlargement on bail, courtshave always interpreted them on the acceptedprinciple of presumption of innocence and held in favour of the accused.

18. The position in India is no different. It has been the consistentstandof 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 tothe court of law. The weightage of the evidence has to be assessed onthe principle of beyond reasonable doubt.

PROVISIONS OF THE CODE OF CRIMINALPROCEDURE

“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 procedurallaw, is enacted on the inviolable right enshrined under Article 21 and 22of the Constitution of India. The provisions governing clearly exhibitedthe 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-bailableoffense is a cognizable offense enabling the police officer to arrest withouta warrant. To exercise the said power, the Code introduces certainembargoes by way of restrictions.

Section 41, 41A and 60Aof the Code

CHAPTER V

ARREST OF PERSONS

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A41. When police may arrest without warrant.—(1) Any policeofficer may without an order from a Magistrate and without awarrant, arrest any person—

(a) who commits, in the presence of a police officer, acognizable offence; (b) against whom a reasonable complaint has been made, orcredible information has been received, or a reasonablesuspicion exists that he has committed a cognizable offencepunishable with imprisonment for a term which may be lessthan seven years or which may extend to seven years whetherwith or without fine, if the following conditions are satisfied,namely:—

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(i) the police officer has reason to believe on the basis ofsuch complaint, information, or suspicion that such personhas committed the said offence;

(ii) the police officer is satisfied that such arrest isnecessary—

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(a) to prevent such person from committing anyfurther offence; or (b)for proper investigation of the offence; or

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(d) to prevent such person from making anyinducement, threat or promise to any personacquainted with the facts of the case so as todissuade him from disclosing such facts to theCourt or to the police officer; or F

(e) as unless such person is arrested, his presence inthe Court whenever required cannot be ensured,and the police officer shall record while makingsuch arrest, his reasons in writing:

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Provided that a police officer shall, in all caseswhere the arrest of a person is not required underthe provisions of this sub-section, record thereasons in writing for not making the arrest.

(ba) against whom credible information has beenAreceived that he has committed a cognizableoffence punishable with imprisonment for a termwhich may extend to more than seven yearswhether with or without fine or with deathsentence and the police officer has reason toBbelieve on the basis of that information that suchperson has committed the said offence;(c)who has been proclaimed as an offender eitherunder this Code or by order of the StateGovernment; orC(d)in whose possession anything is found which mayreasonably be suspected to be stolen property andwho may reasonably be suspected of havingcommitted an offence with reference to suchthing; orD(e)who obstructs a police officer while in theexecution of his duty, or who has escaped, orattempts to escape, from lawful custody; or(f) who is reasonably suspected of being a deserterfrom any of the Armed Forces of the Union; orE(g)who has been concerned in, or against whom areasonable complaint has been made, or credibleinformation has been received, or a reasonablesuspicion exists, of his having been concerned in,any act committed at any place out of India which,Fif committed in India, would have been punishableas an offence, and for which he is, under any lawrelating to extradition, or otherwise, liable to beapprehended or detained in custody in India; or G

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officer, provided that the requisition specifies theperson to be arrested and the offence or othercause for which the arrest is to be made and itappears therefrom that the person might lawfullybe arrested without a warrant by the officer whoissued the requisition.

(2) Subject to the provisions of section 42, no person concerned ina non-cognizable offence or against whom a complaint has beenmade or credible information has been received or reasonablesuspicion exists of his having so concerned, shall be arrested exceptunder a warrant or order of a Magistrate.

41A. Notice of appearance before police officer.—(1) [Thepolice officer shall], in all cases where the arrest of a person isnot required under the provisions of sub-section (1) of section 41,issue a notice directing the person against whom a reasonablecomplaint has been made, or credible information has beenreceived, or a reasonable suspicion exists that he has committeda cognizable offence, to appear before him or at such other placeas may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be theduty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply withthe notice, he shall not be arrested in respect of the offencereferred to in the notice unless, for reasons to be recorded, thepolice officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the termsof the notice or is unwilling to identify himself, the police officermay, subject to such orders as may have been passed by acompetent Court in this behalf, arrest him for the offence mentionedin the notice.

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60A. Arrest to be made strictly according to the Code.—No arrest shall be made except in accordance with the provisionsof this Code or any other law for the time being in force providingfor arrest.”

21. Section 41 under Chapter V of the Code deals with the arrestof persons. Even for a cognizable offense, an arrest is not mandatory ascan be seen from the mandate of this provision. If the officer is satisfiedthat a person has committed a cognizable offense, punishable withimprisonment for a term which may be less than seven years, or whichmay extend to the said period, with or without fine, an arrest could onlyfollow 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 necessityfor an arrest. Such necessity is drawn to prevent the committing of anyfurther offense, for a proper investigation, and to prevent him/her fromeither disappearing or tampering with the evidence. He/she can also bearrested to prevent such person from makingany inducement, threat, orpromise to any person according to the facts, so as to dissuade him fromdisclosing said facts either to the court or to the police officer. One moreground on which an arrest may be necessary is when his/her presenceis required after arrest for production before the Court and the samecannot be assured.

22. This provision mandates the police officer to record his reasonsin writing while making the arrest. Thus, a police officer is duty-bound torecord the reasons for arrest in writing. Similarly, the police officer shallrecord reasons when he/she chooses not to arrest. There is no requirementof the aforesaid procedure when the offense alleged is more than sevenyears, among other reasons.

23. The consequence ofnon-compliance with Section 41 shallcertainly inureto 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 thisprovision. Any non-compliance would entitle the accused toa grant ofbail.

24. Section 41A deals with the procedure for appearance beforethe police officer who is required to issue a notice to the person againstwhom a reasonable complaint has been made, or credible informationhas been received or a reasonable suspicion exists that he has committeda cognizable offence, and arrest is not required under Section 41(1).Section 41B deals with the procedure of arrest along with mandatoryduty on the part of the officer.

25. On the scope and objective of Section 41 and 41A, it is obviousthat they are facets of Article 21 of the Constitution. We need not

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Aelaborate any further, in light of the judgment of this Court in ArneshKumar v. State of Bihar, (2014) 8 SCC 273:

“7.1. From a plain reading of the aforesaid provision, it is evidentthat a person accused of an offence punishable withimprisonment for a term which may be less than seven yearsor which may extend to seven years with or without fine, cannotbe arrested by the police officer only on his satisfaction thatsuch person had committed the offence punishable as aforesaid.A police officer before arrest, in such cases has to be furthersatisfied that such arrest is necessary to prevent such personfrom committing any further offence; or for proper investigationof the case; or to prevent the accused from causing the evidenceof the offence to disappear; or tampering with such evidencein any manner; or to prevent such person from making anyinducement, threat or promise to a witness so as to dissuadehim from disclosing such facts to the court or the police officer;or unless such accused person is arrested, his presence in thecourt whenever required cannot be ensured. These are theconclusions, which one may reach based on facts.

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7.2. The law mandates the police officer to state the facts andrecord the reasons in writing which led him to come to aconclusion covered by any of the provisions aforesaid, whilemaking such arrest. The law further requires the police officersto record the reasons in writing for not making the arrest.

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7.3. In pith and core, the police officer before arrest must puta question to himself, why arrest? Is it really required? Whatpurpose it will serve? What object it will achieve? It is onlyafter these questions are addressed and one or the otherconditions as enumerated above is satisfied, the power of arrestneeds to be exercised. In fine, before arrest first the policeofficers should have reason to believe on the basis of informationand material that the accused has committed the offence. Apartfrom this, the police officer has to be satisfied further that thearrest is necessary for one or the more purposes envisaged bysub-clauses (a) to (e) of clause (1) of Section 41 CrPC.

8. An accused arrested without warrant by the police has theconstitutional right under Article 22(2) of the Constitution of Indiaand Section 57 CrPC to be produced before the Magistrate without H

unnecessary delay and in no circumstances beyond 24 hoursexcluding the time necessary for the journey:

8.1. During the course of investigation of a case, an accusedcan be kept in detention beyond a period of 24 hours only whenit is authorised by the Magistrate in exercise of power underSection 167 CrPC. The power to authorise detention is a verysolemn function. It affects the liberty and freedom of citizensand needs to be exercised with great care and caution. Ourexperience tells us that it is not exercised with the seriousnessit deserves. In many of the cases, detention is authorised in aroutine, casual and cavalier manner.

8.2. Before a Magistrate authorises detention under Section167 CrPC, he has to be first satisfied that the arrest made islegal and in accordance with law and all the constitutional rightsof the person arrested are satisfied. If the arrest effected bythe police officer does not satisfy the requirements of Section41 of the Code, Magistrate is duty-bound not to authorise hisfurther detention and release the accused. In other words, whenan accused is produced before the Magistrate, the police officereffecting the arrest is required to furnish to the Magistrate, thefacts, reasons and its conclusions for arrest and the Magistratein turn is to be satisfied that the condition precedent for arrestunder Section 41 CrPC has been satisfied and it is onlythereafter that he will authorise the detention of an accused.

8.3. The Magistrate before authorising detention will recordhis own satisfaction, may be in brief but the said satisfactionmust reflect from his order. It shall never be based upon theipse dixit of the police officer, for example, in case the policeofficer considers the arrest necessary to prevent such personfrom committing any further offence or for proper investigationof the case or for preventing an accused from tampering withevidence or making inducement, etc. the police officer shallfurnish to the Magistrate the facts, the reasons and materialson the basis of which the police officer had reached itsconclusion. Those shall be perused by the Magistrate whileauthorising the detention and only after recording his satisfactionin writing that the Magistrate will authorise the detention ofthe accused.

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8.4. In fine, when a suspect is arrested and produced before aMagistrate for authorising detention, the Magistrate has toaddress the question whether specific reasons have beenrecorded for arrest and if so, prima facie those reasons arerelevant, and secondly, a reasonable conclusion could at all bereached by the police officer that one or the other conditionsstated above are attracted. To this limited extent the Magistratewill make judicial scrutiny.

9. …The aforesaid provision makes it clear that in all cases wherethe arrest of a person is not required under Section 41(1) CrPC,the police officer is required to issue notice directing the accusedto appear before him at a specified place and time. Law obligessuch an accused to appear before the police officer and it furthermandates that if such an accused complies with the terms of noticehe shall not be arrested, unless for reasons to be recorded, thepolice officer is of the opinion that the arrest is necessary. At thisstage also, the condition precedent for arrest as envisaged underSection 41 CrPC has to be complied and shall be subject to thesame scrutiny by the Magistrate as aforesaid.

10. We are of the opinion that if the provisions of Section 41 CrPCwhich authorises the police officer to arrest an accused withoutan order from a Magistrate and without a warrant are scrupulouslyenforced, the wrong committed by the police officers intentionallyor unwittingly would be reversed and the number of cases whichcome to the Court for grant of anticipatory bail will substantiallyreduce. We would like to emphasise that the practice ofmechanically reproducing in the case diary all or most of thereasons contained in Section 41 CrPC for effecting arrest bediscouraged and discontinued.

11. Our endeavour in this judgment is to ensure that police officersdo not arrest the accused unnecessarily and Magistrate do notauthorise detention casually and mechanically. In order to ensurewhat we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officersnot to automatically arrest when a case under Section 498-AIPC is registered but to satisfy themselves about the necessityfor arrest under the parameters laid down above flowing fromSection 41 CrPC; 11.2. All police officers be provided with a check list containingspecified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filledand furnish the reasons and materials which necessitated thearrest, while forwarding/producing the accused before theMagistrate for further detention; 11.4. The Magistrate while authorising detention of the accusedshall peruse the report furnished by the police officer in termsaforesaid and only after recording its satisfaction, the Magistratewill authorise detention; 11.5. The decision not to arrest an accused, be forwarded tothe Magistrate within two weeks from the date of the institutionof the case with a copy to the Magistrate which may beextended by the Superintendent of Police of the district for thereasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC beserved on the accused within two weeks from the date ofinstitution of the case, which may be extended by theSuperintendent of Police of the district for the reasons to berecorded in writing; 11.7. Failure to comply with the directions aforesaid shall apartfrom rendering the police officers concerned liable fordepartmental action, they shall also be liable to be punished forcontempt of court to be instituted before the High Court havingterritorial jurisdiction.

11.8. Authorising detention without recording reasons asaforesaid by the Judicial Magistrate concerned shall be liablefor departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not onlyapply to the cases under Section 498-A IPC or Section 4 of theDowry Prohibition Act, the case in hand, but also such cases whereoffence is punishable with imprisonment for a term which may beless than seven years or which may extend to seven years, whetherwith or without fine.”

26. We only reiterate that the directions aforesaid ought to becomplied with in letter and spirit by the investigating and prosecuting A

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Aagencies, while the view expressed by us on the non-compliance ofSection 41 and the consequences that flow from it has to be kept in mindby 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 SectionB41A of the Code. This Court has clearly interpreted Section 41(1)(b)(i)and (ii) inter alia holding that notwithstanding the existence of a reasonto believe qua a police officer, the satisfaction for the need to arrestshall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to beread along with sub-clause (ii) and therefore both the elements of ‘reasonto believe’ and ‘satisfaction qua an arrest’ are mandated and accordinglyCare to be recorded by the police officer.

28. It is also brought to our notice that there are no specificguidelines with respect to the mandatory compliance of Section 41A ofthe Code. An endeavour was made by the Delhi High Court while decidingWrit Petition (C) No. 7608 of 2017 vide order dated 07.02.2018, followedDby order dated 28.10.2021 in Contempt Case (C) No. 480 of 2020 &CM Application No. 25054 of 2020, wherein not only the need forguidelines but also the effect of non-compliance towards taking actionagainst the officers concerned was discussed. We also take note of thefact that a standing order has been passed by the Delhi Police viz.,EStanding Order No. 109 of 2020, which provides for a set of guidelinesin the form of procedure for issuance of notices or orders by the policeofficers. Considering the aforesaid action taken, in due compliance withthe order passed by the Delhi High Court in Writ Petition (C) No.7608of 2017 dated 07.02.2018, this Court has also passed an order in WritPetition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of BiharFto look into the said aspect of an appropriate modification to give effectto the mandate of Section 41A. A recent judgment has also been renderedon the same lines by the High Court of Jharkhand in Cr.M.P. No. 1291of 2021 dated 16.06.2022.

29. Thus, we deem it appropriate to direct all the StateGGovernments and the Union Territories to facilitate standing orders whiletaking note of the standing order issued by the Delhi Police i.e., StandingOrder No. 109 of 2020, to comply with the mandate of Section 41A. Wedo feel that this would certainly take care of not only the unwarrantedarrests, but also the clogging of bail applications before various CourtsHas 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 officerseffecting arrest without due compliance of Section 41 and Section 41A.We express our hope that the Investigating Agencies would keep inmind the law laid down in Arnesh Kumar (Supra), the discretion to beexercised on the touchstone of presumption of innocence, and thesafeguards provided under Section 41, since an arrest is not mandatory.Ifdiscretion is exercised to effect such an arrest, there shall be proceduralcompliance. Our view is also reflected by the interpretation of the specificprovision under Section 60A of the Codewhich warrants the officerconcerned to make the arrest strictly in accordance with the Code.

Section 87 and 88 ofthe Code

“87. Issue of warrant in lieu of, or in addition to,summons.—A Court may, in any case in which it is empoweredby this Code to issue a summons for the appearance of anyperson, issue, after recording its reasons in writing, a warrantfor his arrest—

(a) if, either before the issue of such summons, or after theissue of the same but before the time fixed for hisappearance, the Court sees reason to believe that he hasabsconded or will not obey the summons; or (b) if at such time he fails to appear and the summons isproved to have been duly served in time to admit of hisappearing in accordance therewith and no reasonableexcuse is offered for such failure

88. Power to take bond for appearance.—When any personfor whose appearance or arrest the officer presiding in anyCourt is empowered to issue a summons or warrant, is presentin such Court, such officer may require such person to executea bond, with or without sureties, for his appearance in suchCourt, or any other Court to which the case may be transferredfor trial.”

31. When the courts seek the attendance of aperson, either asummons or a warrant is to be issued depending upon the nature andfacts governing the case. Section 87 gives the discretion to the court toissue a warrant, either in lieu of or in addition to summons. The exerciseof the aforesaid power can only be done after recording of reasons. Awarrant can be either bailable or non-bailable. Section 88 of the Code AB

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Aempowers the Court to take a bond for appearance of a person with orwithout sureties.

32. Considering the aforesaid two provisions,courts will have toadopt the procedure in issuing summons first, thereafter a bailable warrant,and then a non-bailable warrant may be issued, if so warranted,as heldBby this Court in Inder Mohan Goswami v. State of Uttaranchal, (2007)12 SCC 1. Despite the aforesaid clear dictum, we notice that non-bailablewarrants are issued as a matter of course without due application ofmind and against the tenor of the provision, which merely facilitates adiscretion, which is obviously to be exercised in favour of the personwhose attendance is sought for, particularly in the light of liberty enshrinedCunder Article 21 of the Constitution. Therefore, valid reasons have to begiven for not exercising discretion in favour of the said person. ThisCourt in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12SCC 1, has held that:

“50. Civilised countries have recognised that liberty is the mostDprecious of all the human rights. The American Declaration ofIndependence, 1776, French Declaration of the Rights of Menand the Citizen, 1789, Universal Declaration of Human Rightsand the International Covenant of Civil and Political Rights, 1966all speak with one voice—liberty is the natural and inalienableright of every human being. Similarly, Article 21 of our ConstitutionEproclaims that no one shall be deprived of his liberty except inaccordance with procedure prescribed by law.

51. The issuance of non-bailable warrants involves interferencewith personal liberty. Arrest and imprisonment means deprivationof the most precious right of an individual. Therefore, the courtsFhave to be extremely careful before issuing non-bailable warrants.

52. Just as liberty is precious for an individual so is the interest ofthe society in maintaining law and order. Both are extremelyimportant for the survival of a civilised society. Sometimes in thelarger interest of the public and the State it becomes absolutelyGimperative 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 tocourt when summons or bailable warrants would be unlikely tohave the desired result. This could be when:H

• it is reasonable to believe that the person will not voluntarilyappear in court; or

• the police authorities are unable to find the person to servehim with a summon; or

• it is considered that the person could harm someone if notplaced into custody immediately.

54. As far as possible, if the court is of the opinion that a summonwill suffice in getting the appearance of the accused in the court,the summon or the bailable warrants should be preferred. Thewarrants either bailable or non-bailable should never be issuedwithout proper scrutiny of facts and complete application of mind,due to the extremely serious consequences and ramifications whichensue on issuance of warrants. The court must very carefullyexamine whether the criminal complaint or FIR has not been filedwith an oblique motive.

55. In complaint cases, at the first instance, the court should directserving of the summons along with the copy of the complaint. Ifthe accused seem to be avoiding the summons, the court, in thesecond instance should issue bailable warrant. In the third instance,when the court is fully satisfied that the accused is avoiding thecourt’s proceeding intentionally, the process of issuance of thenon-bailable warrant should be resorted to. Personal liberty isparamount, therefore, we caution courts at the first and secondinstance to refrain from issuing non-bailable warrants.

56. The power being discretionary must be exercised judiciouslywith extreme care and caution. The court should properly balanceboth personal liberty and societal interest before issuing warrants.There cannot be any straitjacket formula for issuance of warrantsbut as a general rule, unless an accused is charged with thecommission of an offence of a heinous crime and it is feared thathe is likely to tamper or destroy the evidence or is likely to evadethe process of law, issuance of non-bailable warrants should beavoided.

57. The court should try to maintain proper balance betweenindividual liberty and the interest of the public and the State whileissuing non-bailable warrant.”

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33. On the exercise of discretion under Section 88, this Court inPankaj Jain v. Union of India, (2018) 5 SCC 743, has held that:

“12. The main issue which needs to be answered in the presentappeal is as to whether it was obligatory for the Court to releasethe appellant by accepting the bond under Section 88 CrPC onthe ground that he was not arrested during investigation or theCourt has rightly exercised its jurisdiction under Section 88 inrejecting the application filed by the appellant praying for releaseby accepting the bond under Section 88 CrPC.

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13. Section 88 CrPC is a provision which is contained in ChapterVI “Processes to Compel Appearance” of the Code of CriminalProcedure, 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 asfollows:

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D“88. Power to take bond for appearance.—When anyperson for whose appearance or arrest the officer presiding inany court is empowered to issue a summons or warrant, ispresent in such court, such officer may require such person toexecute a bond, with or without sureties, for his appearance insuch court, or any other court to which the case may beEtransferred for trial.”

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14. We need to first consider as to what was the import of thewords “may” used in Section 88.

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22. Section 88 CrPC does not confer any right on any person,who is present in a court. Discretionary power given to the courtis for the purpose and object of ensuring appearance of suchperson in that court or to any other court into which the case maybe transferred for trial. Discretion given under Section 88 to thecourt does not confer any right on a person, who is present in thecourt rather it is the power given to the court to facilitate hisappearance, which clearly indicates that use of the word “may”is discretionary and it is for the court to exercise its discretionwhen situation so demands. It is further relevant to note that theword used in Section 88 “any person” has to be given wide G

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meaning, which may include persons, who are not even accusedin a case and appeared as witnesses.”

Section 167(2)of the Code

167. Procedure when investigation cannot be completed intwenty-four hours.—

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(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdiction totry the case, from time to time, authorise the detention of theaccused in such custody as such Magistrate thinks fit, for a termnot exceeding fifteen days in the whole; and if he has no jurisdictionto try the case or commit it for trial, and considers further detentionunnecessary, he may order the accused to be forwarded to aMagistrate having such jurisdiction:

Provided that—

(a) the Magistrate may authorise the detention of the accusedperson, otherwise than in the custody of the police, beyond theperiod of fifteen days, if he is satisfied that adequate groundsexist for doing so, but no Magistrate shall authorise the detentionof the accused person in custody under this paragraph for atotal period exceeding,—

(i) ninety days, where the investigation relates to an offencepunishable with death, imprisonment for life or imprisonmentfor a term of not less than ten years;

(ii) sixty days, where the investigation relates to any otheroffence, and, on the expiry of the said period of ninety days,or sixty days, as the case may be, the accused person shallbe released on bail if he is prepared to and does furnishbail, and every person released on bail under this sub-sectionshall be deemed to be so released under the provisions ofChapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused incustody of the police under this section unless the accused isproduced before him in person for the first time andsubsequently every time till the accused remains in the custody A

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of the police, but the Magistrate may extend further detentionin judicial custody on production of the accused either in personor through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empoweredin this behalf by the High Court, shall authorise detention in thecustody of the police.

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Explanation I.—For the avoidance of doubts, it is herebydeclared that, notwithstanding the expiry of the period specifiedin Para (a), the accused shall be detained in custody so long ashe does not furnish bail.

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Explanation II.—If any question arises whether an accusedperson was produced before the Magistrate as required underclause (b), the production of the accused person may be provedby his signature on the order authorising detention or by theorder certified by the Magistrate as to production of the accusedDperson through the medium of electronic video linkage, as thecase may be.

Provided further that in case of a woman under eighteen yearsof age, the detention shall be authorised to be in the custody ofa remand home or recognised social institution.”

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E34. Section 167(2) was introduced in the year 1978, giving emphasisto the maximum period of time to complete the investigation. Thisprovision has got a laudable object behind it, which is to ensure anexpeditious investigation and a fair trial, and to set down a rationalisedprocedure that protects the interests of the indigent sections of society.FThis is also another limb of Article 21. Presumption of innocence is alsoinbuilt in this provision. An investigating agency has to expedite the processof investigation as a suspect is languishing under incarceration. Thus, aduty is enjoined upon the agency to complete the investigation within thetime prescribed and a failure would enable the release of the accused.The right enshrined is an absolute and indefeasible one, inuring to theGbenefit of suspect. Such a right cannot be taken away even during anyunforeseen circumstances, such as the recent pandemic, as held by thiscourt in M. Ravindran v. Directorate of Revenue Intelligence,(2021) 2 SCC 485:

“II. Section 167(2) and the Fundamental Right to Life andHPersonal Liberty

17. Before we proceed to expand upon the parameters of theright to default bail under Section 167(2) as interpreted by variousdecisions of this Court, we find it pertinent to note the observationsmade by this Court in Uday Mohanlal Acharya [UdayMohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453: 2001 SCC (Cri) 760] on the fundamental right to personal libertyof 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 theIndian Constitution and deprivation of the same can only be inaccordance with law and in conformity with the provisionsthereof, as stipulated under Article 21 of the Constitution. Whenthe law provides that the Magistrate could authorise thedetention of the accused in custody up to a maximum periodas indicated in the proviso to sub-section (2) of Section 167,any further detention beyond the period without filing of achallan by the investigating agency would be a subterfuge andwould not be in accordance with law and in conformity withthe 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 “noperson shall be deprived of his life or personal liberty exceptaccording to procedure established by law”. It has been settledby a Constitution Bench of this Court in ManekaGandhi 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 Section167(2) CrPC and the safeguard of “default bail” contained in theproviso thereto is intrinsically linked to Article 21 and is nothingbut a legislative exposition of the constitutional safeguard that noperson 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 ofthe CrPC, the maximum period for which an accused could beremanded to custody, either police or judicial, was 15 days.However, since it was often unworkable to conclude complicatedinvestigations within 15 days, a practice arose wherein investigatingofficers would file “preliminary charge-sheets” after the expiry AB

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of the remand period. The State would then request the Magistrateto postpone commencement of the trial and authorise furtherremand of the accused under Section 344 of the 1898 Code tillthe time the investigation was completed and the final charge-sheet was filed. The Law Commission of India in Report No. 14on Reforms of the Judicial Administration (Vol. II, 1948, pp.758-760) pointed out that in many cases the accused werelanguishing for several months in custody without any final reportbeing filed before the courts. It was also pointed out that therewas conflict in judicial opinion as to whether the Magistrate wasbound to release the accused if the police report was not filedwithin 15 days.

17.3. Hence the Law Commission in Report No. 14 recommendedthe need for an appropriate provision specifically providing forcontinued remand after the expiry of 15 days, in a manner that“while meeting the needs of a full and proper investigation incases of serious crime, will still safeguard the liberty of theperson of the individual”. Further, that the legislature shouldprescribe a maximum time period beyond which no accused couldbe detained without filing of the police report before the Magistrate.It was pointed out that in England, even a person accused ofgrave offences such as treason could not be indefinitely detainedin prison till commencement of the trial.

17.4. The suggestion made in Report No. 14 was reiterated bythe Law Commission in Report No. 41 on The Code of CriminalProcedure, 1898 (Vol. I, 1969, pp. 76-77). The Law Commissionre-emphasised the need to guard against the misuse of Section344 of the 1898 Code by filing “preliminary reports” for remandingthe accused beyond the statutory period prescribed under Section167. It was pointed out that this could lead to serious abuse wherein“the arrested person can in this manner be kept in custodyindefinitely while the investigation can go on in a leisurelymanner”. Hence the Commission recommended fixing of amaximum time-limit of 60 days for remand. The Commissionconsidered the reservation expressed earlier in Report No. 37that such an extension may result in the 60-day period becominga matter of routine. However, faith was expressed that propersupervision by the superior courts would help circumvent the same.

17.5. The suggestions made in Report No. 41 were taken note ofand incorporated by the Central Government while drafting theCode of Criminal Procedure Bill in 1970. Ultimately, the 1898Code was replaced by the present CrPC. The Statement ofObjects and Reasons of the CrPC provides that the Governmenttook the following important considerations into account whileevaluating the recommendations of the Law Commission:

“3. The recommendations of the Commission were examinedcarefully by the Government, keeping in view, among others,the following basic considerations:

(i) an accused person should get a fair trial in accordancewith the accepted principles of natural justice;

(ii) every effort should be made to avoid delay ininvestigation and trial which is harmful not only to theindividuals involved but also to society; and

(iii) the procedure should not be complicated and should, tothe utmost extent possible, ensure fair deal to the poorersections of the community.”

17.6. It was in this backdrop that Section 167(2) was enactedwithin the present day CrPC, providing for time-limits on the periodof remand of the accused, proportionate to the seriousness of theoffence committed, failing which the accused acquires theindefeasible right to bail. As is evident from the recommendationsof the Law Commission mentioned supra, the intent of thelegislature was to balance the need for sufficient time-limits tocomplete the investigation with the need to protect the civil libertiesof the accused. Section 167(2) provides for a clear mandate thatthe investigative agency must collect the required evidence withinthe prescribed time period, failing which the accused can no longerbe detained. This ensures that the investigating officers arecompelled to act swiftly and efficiently without misusing theprospect of further remand. This also ensures that the court takescognizance of the case without any undue delay from the date ofgiving information of the offence, so that society at large does notlose faith and develop cynicism towards the criminal justice system.

17.7. Therefore, as mentioned supra, Section 167(2) is integrallylinked to the constitutional commitment under Article 21 promising AB

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protection of life and personal liberty against unlawful and arbitrarydetention, and must be interpreted in a manner which serves thispurpose. In this regard we find it useful to refer to the decision ofthe three-Judge Bench of this Court in Rakesh KumarPaul v. State of Assam [Rakesh Kumar Paul v. State of Assam,(2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , which laid downcertain seminal principles as to the interpretation of Section 167(2)CrPC though the questions of law involved were somewhatdifferent from the present case. The questions before the three-Judge Bench in Rakesh Kumar Paul [Rakesh KumarPaul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri)401] were whether, firstly, the 90-day remand extension underSection 167(2)(a)(i) would be applicable in respect of offenceswhere the maximum period of imprisonment was 10 years, thoughthe minimum period was less than 10 years. Secondly, whetherthe application for bail filed by the accused could be construed asan application for default bail, even though the expiry of thestatutory period under Section 167(2) had not been specificallypleaded as a ground for bail. The majority opinion held that the90-day limit is only available in respect of offences wherea minimum ten year’ imprisonment period is stipulated, and thatthe oral arguments for default bail made by the counsel for theaccused before the High Court would suffice in lieu of a writtenapplication. This was based on the reasoning that the court shouldnot be too technical in matters of personal liberty. Madan B. Lokur,J. in his majority opinion, pertinently observed as follows: (SCCpp. 95-96 & 99, paras 29, 32 & 41)

“29. Notwithstanding this, the basic legislative intent ofcompleting investigations within twenty-four hours and alsowithin 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 tocomplete investigations, the legislature has also and alwaysput a premium on personal liberty and has always felt thatit would be unfair to an accused to remain in custody for aprolonged or indefinite period. It is for this reason andalso to hold the investigating agency accountable that time-limits have been laid down by the legislature. …

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32. …Such views and opinions over a prolonged period haveprompted the legislature for more than a century to ensureexpeditious conclusion of investigations so that an accusedperson is not unnecessarily deprived of his or her personalliberty by remaining in prolonged custody for an offence thathe or she might not even have committed. In our opinion,the entire debate before us must also be looked at from thepoint of view of expeditious conclusion of investigationsand from the angle of personal liberty and not from a purelydictionary or textual perspective as canvassed by thelearned counsel for the State.

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41. We take this view keeping in mind that in matters ofpersonal liberty and Article 21 of the Constitution, it is notalways advisable to be formalistic or technical. The historyof the personal liberty jurisprudence of this Court and otherconstitutional courts includes petitions for a writ of habeascorpus and for other writs being entertained even on the basisof a letter addressed to the Chief Justice or the Court.”

Therefore, the courts cannot adopt a rigid or formalistic approachwhilst considering any issue that touches upon the rights containedin Article 21.

17.8. We may also refer with benefit to the recent judgment ofthis Court in S. Kasi v. State [S. Kasi v. State, (2021) 12 SCC 1 :2020 SCC OnLine SC 529], wherein it was observed that theindefeasible right to default bail under Section 167(2) is an integralpart of the right to personal liberty under Article 21, and the saidright to bail cannot be suspended even during a pandemic situationas is prevailing currently. It was emphasised that the right of theaccused to be set at liberty takes precedence over the right of theState to carry on the investigation and submit a charge-sheet.

17.9. Additionally, it is well-settled that in case of any ambiguityin the construction of a penal statute, the courts must favour theinterpretation which leans towards protecting the rights of the A

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accused, given the ubiquitous power disparity between the individualaccused and the State machinery. This is applicable not only inthe case of substantive penal statutes but also in the case ofprocedures providing for the curtailment of the liberty of theaccused.

17.10. With respect to the CrPC particularly, the Statement ofObjects and Reasons (supra) is an important aid of construction.Section 167(2) has to be interpreted keeping in mind the threefoldobjectives expressed by the legislature, namely, ensuring a fairtrial, expeditious investigation and trial, and setting down arationalised procedure that protects the interests of indigentsections of society. These objects are nothing but subsets of theoverarching fundamental right guaranteed under Article 21.

17.11. Hence, it is from the perspective of upholding thefundamental right to life and personal liberty under Article 21 thatwe shall clarify and reconcile the various judicial interpretationsof Section 167(2) for the purpose of resolving the dilemma thathas 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 beyondthis period would certainly be illegal, being an affront to the liberty of theperson concerned. Therefore, it is not only the duty of the investigatingagency but also the courts to see to it that an accused gets the benefit ofSection 167 (2).

Section 170of the Code:

“170. Cases to be sent to Magistrate when evidence issufficient.—(1) If, upon an investigation under this Chapter, itappears to the officer in charge of the police station that thereis sufficient evidence or reasonable ground as aforesaid, suchofficer shall forward the accused under custody to a Magistrateempowered to take cognizance of the offence upon a policereport and to try the accused or commit him for trial, or, if theoffence is bailable and the accused is able to give security,shall take security from him for his appearance before suchMagistrate on a day fixed and for his attendance from day today before such Magistrate until otherwise directed.”

36. The scope and ambit of Section 170 has already been dealtwith by this Court in Siddharth v. State of U.P., (2021) 1 SCC 676.Thisis a power which is to be exercised by the court after the completion ofthe investigation by the agency concerned. Therefore, this is a proceduralcompliance from the point of view of the court alone, and thus theinvestigating agency has got a limited role to play. In a case where theprosecution does not require custody of the accused, there is no needfor an arrest when a case is sent to the magistrate under Section 170ofthe Code. There is not even a need for filing a bail application, as theaccused is merely forwarded to the court for the framing of charges andissuance of process for trial. If the court is of the view that there is noneed for any remand, then the court can fall back upon Section 88of theCode and complete the formalities required to secure the presence ofthe accused for the commencement of the trial. Of course, there maybe a situation where a remand may be required, it is only in such casesthat the accused will have to be heard. Therefore, in such a situation, anopportunity will have to be given to the accused persons, if the court isof the prima facie view that the remand would be required. We make itclear that we have not said anything on the cases in which the accusedpersons are already in custody, for which, the bail application has to bedecided on its own merits. Suffice it to state that for due compliance ofSection 170of 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 heldthat:

“There are judicial precedents available on the interpretation ofthe 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 HighCourt dealt with an argument similar to the contention of therespondent that Section 170 CrPC prevents the trial court fromtaking a charge-sheet on record unless the accused is taken intocustody. The relevant extracts are as under : (SCC OnLine Delparas 15-16 & 19-20)

“15. Word “custody” appearing in this section does notcontemplate either police or judicial custody. It merely connotesthe presentation of accused by the investigating officer beforethe Court at the time of filing of the charge-sheet whereafterthe role of the Court starts. Had it not been so the investigating AB

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officer would not have been vested with powers to release aperson on bail in a bailable offence after finding that there wassufficient evidence to put the accused on trial and it wouldhave been obligatory upon him to produce such an accused incustody before the Magistrate for being released on bail bythe Court.

16. In case the police/investigating officer thinks it unnecessaryto present the accused in custody for the reason that theaccused would neither abscond nor would disobey the summonsas he has been cooperating in investigation and investigationcan be completed without arresting him, the IO is not obligedto produce such an accused in custody.

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19. It appears that the learned Special Judge was labouringunder a misconception that in every non-bailable and cognizableoffence 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 coursethe police should always avoid arresting a person and sendinghim to jail, if it is possible for the police to complete theinvestigation without his arrest and if every kind of cooperationis provided by the accused to the investigating officer incompleting the investigation. It is only in cases of utmostnecessity, where the investigation cannot be completed withoutarresting the person, for instance, a person may be requiredfor recovery of incriminating articles or weapon of offence orfor eliciting some information or clue as to his accomplices orany circumstantial evidence, that his arrest may be necessary.Such an arrest may also be necessary if the investigating officerconcerned or officer in charge of the police station thinks thatpresence of the accused will be difficult to procure because ofgrave and serious nature of crime as the possibility of hisabsconding or disobeying the process or fleeing from justicecannot be ruled out.”

6. In a subsequent judgment the Division Bench of the Delhi HighCourt in High Court of Delhi v. State [High Court ofDelhi v. State, 2018 SCC OnLine Del 12306 : (2018) 254 DLT

641] relied on these observations in High Court of Delhi [HighCourt of Delhi v. CBI, 2004 SCC OnLine Del 53 : (2004) 72 DRJ629] and observed that it is not essential in every case involving acognizable and non-bailable offence that an accused be takeninto custody when the charge-sheet/final report is filed.

7. The Delhi High Court is not alone in having adopted this viewand other High Courts apparently have also followed suit on theproposition that criminal courts cannot refuse to accept a charge-sheet simply because the accused has not been arrested andproduced before the court.

8. In Deendayal Kishanchand v. State of Gujarat [DeendayalKishanchand v. State of Gujarat, 1982 SCC OnLine Guj 172 : 1983Cri LJ 1583], the High Court observed as under : (SCC OnLineGuj 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 availableto be produced before the court along with the charge-sheet,even though earlier they were released on bail. Therefore, asthe court refused to accept the charge-sheet unless all theaccused 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. Thisis very clear from the evidence on record.

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8. I must say at this stage that the refusal by criminal courtseither through the learned Magistrate or through their officestaff to accept the charge-sheet without production of theaccused persons is not justified by any provision of law.Therefore, it should be impressed upon all the courts that theyshould accept the charge-sheet whenever it is produced bythe police with any endorsement to be made on the charge-sheet by the staff or the Magistrate pertaining to any omissionor requirement in the charge-sheet. But when the police submitsthe charge-sheet, it is the duty of the court to accept it especiallyin view of the provisions of Section 468 of the Code whichcreates a limitation of taking cognizance of offence. Likewise,police authorities also should impress on all police officers that A

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if charge-sheet is not accepted for any such reason, thenattention of the Sessions Judge should be drawn to these factsand get suitable orders so that such difficulties would not arise henceforth.”

9. We are in agreement with the aforesaid view of the High Courtsand would like to give our imprimatur to the said judicial view. Ithas rightly been observed on consideration of Section 170 CrPCthat it does not impose an obligation on the officer-in-charge toarrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accusedhas cooperated with the investigation throughout and yet on thecharge-sheet being filed non-bailable warrants have been issuedfor his production premised on the requirement that there is anobligation to arrest the accused and produce him before the court.We are of the view that if the investigating officer does not believethat the accused will abscond or disobey summons he/she is notrequired to be produced in custody. The word “custody” appearingin Section 170 CrPC does not contemplate either police or judicialcustody but it merely connotes the presentation of the accused bythe investigating officer before the court while filing the charge-sheet.

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10. We may note that personal liberty is an important aspect ofEour constitutional mandate. The occasion to arrest an accusedduring investigation arises when custodial investigation becomesnecessary or it is a heinous crime or where there is a possibility ofinfluencing the witnesses or accused may abscond. Merelybecause an arrest can be made because it is lawful does notFmandate that arrest must be made. A distinction must be madebetween the existence of the power to arrest and the justificationfor exercise of it [Joginder Kumar v. State of U.P., (1994) 4 SCC260 : 1994 SCC (Cri) 1172] . If arrest is made routine, it cancause incalculable harm to the reputation and self-esteem of a E

person. If the investigating officer has no reason to believe thatGthe accused will abscond or disobey summons and has, in fact,throughout cooperated with the investigation we fail to appreciatewhy there should be a compulsion on the officer to arrest theaccused.

11. We are, in fact, faced with a situation where contrary to theHobservations in Joginder Kumar case [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] how a policeofficer has to deal with a scenario of arrest, the trial courts arestated to be insisting on the arrest of an accused as a prerequisiteformality to take the charge-sheet on record in view of theprovisions of Section 170 CrPC. We consider such a coursemisplaced 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 Magistratetaking cognizance of an offence there is sufficient ground forproceeding, and the case appears to be—

(a) a summons-case, he shall issue his summons for theattendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinksfit, a summons, for causing the accused to be brought or toappear at a certain time before such Magistrate or (if hehas no jurisdiction himself) some other Magistrate havingjurisdiction.”

“209. Commitment of case to Court of Session whenoffence is triable exclusively by it.—When in a caseinstituted on a police report or otherwise, the accused appearsor is brought before the Magistrate and it appears to theMagistrate that the offence is triable exclusively by the Courtof Session, he shall—

(a) commit, after complying with the provisions of section207 or section 208, as the case may be, the case to theCourt of Session, and subject to the provisions of this Coderelating to bail, remand the accused to custody until suchcommitment has been made; (b) subject to the provisions of this Code relating to bail,remand the accused to custody during, and until theconclusion of, the trial;”

37. Section 204of the Code speaks of issue of process whilecommencing the proceeding before the Magistrate.Sub-section (1)(b)gives a discretion to a Magistrate qua a warrant case, either to issue awarrant or a summons. As this provision gives a discretion, and beingprocedural in nature, it is to be exercised as a matter of course by following AB

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Athe prescription of Section 88of the Code. Thus, issuing a warrant maybe an exception in which case the Magistrate will have to give reasons.

38. Section 209of the Code pertains to commitment of a case to aCourt of Sessions by the Magistrate when the offence is triable exclusivelyby the said court. Sub-sections (a) and (b) of Section 209of the CodeBgive ample power to the Magistrate to remand a person into custodyduring or until the conclusion of the trial. Since the power is to be exercisedby the Magistrate on a case-to-case basis, it is his wisdom in eitherremanding an accused or granting bail. Even here, it is judicial discretionwhich the Magistrate has to exercise. As we have already dealt with thedefinition of bail, which in simple parlance means a release subject toCthe restrictions and conditions, a Magistrate can take a call even withoutan application for bail if he is inclined to do so. In such a case he canseek 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 saidperson has to be heard. Here again, we make it clear that there is noDneed for a separate application and Magistrate is required to afford anopportunity and to pass a speaking order on bail.

Section 309of the Code

39. This provision has been substituted by Act 13 of 2013 and Act22 of 2018. It would be appropriate to reproduce the said provision forEbetter appreciation:

“309. Power to postpone or adjourn proceedings.—(1) Inevery 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 theFfollowing day to be necessary for reasons to be recorded:

Provided that when the inquiry or trial relates to an offenceunder Section 376, [Section 376A, Section 376AB, Section 376B,Section 376C, Section 376D, Section 376DA or Section 376DBof the Indian Penal Code (45 of 1860), the inquiry or trial shall] beGcompleted within a period of two months from the date of filing ofthe charge sheet.

(2) If the Court, after taking cognizance of an offence, orcommencement of trial, finds it necessary or advisable to postponethe commencement of, or adjourn, any inquiry or trial, it may, H

from time to time, for reasons to be recorded, postpone or adjournthe same on such terms as it thinks fit, for such time as it considersreasonable, and may by a warrant remand the accused if incustody:

Provided that no Magistrate shall remand an accused personto custody under this section for a term exceeding fifteen days ata time:

Provided further that when witnesses are in attendance, noadjournment or postponement shall be granted, without examiningthem, except for special reasons to be recorded in writing:

Provided also that no adjournment shall be granted for thepurpose only of enabling the accused person to show cause againstthe 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 ofthat party; (b) the fact that the pleader of a party is engaged in anotherCourt, shall not be a ground for adjournment;

(c) where a witness is present in Court but a party or hispleader is not present or the party or his pleader thoughpresent in Court, is not ready to examine or cross-examinethe witness, the Court may, if thinks fit, record the statementof the witness and pass such orders as it thinks fit dispensingwith the examination-in-chief or cross-examination of thewitness, as the case may be.]

Explanation 1.—If sufficient evidence has been obtained to raisea suspicion that the accused may have committed an offence,and it appears likely that further evidence may be obtained by aremand, this is a reasonable cause for a remand.

Explanation 2.—The terms on which an adjournment orpostponement may be granted include, in appropriate cases, thepayment of costs by the prosecution or the accused.”

40. Sub-section (1) mandates courts to continue the proceedingson aday-to-day basis till the completion of the evidence. Therefore, once A

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Aa trial starts, it should reach the logical end. Various directions havebeen issued by this Court not to give unnecessary adjournments resultingin the witnesses being won over. However, the non-compliance of Section309continues with gay abandon. Perhaps courts alone cannot be faultedas there are multiple reasons that lead to such adjournments. Thoughthe section makes adjournments and that too not for a longer time periodBas an exception, they become the norm. We are touching upon thisprovision only to show that any delay on the part of the court or theprosecution would certainly violate Article 21. This is more so when theaccused person is under incarceration. This provision must be appliedinuring to the benefit of the accused while considering the applicationCfor bail. Whatever may be the nature of the offence, a prolonged trial,appeal or a revision against an accused or a convict under custody orincarceration, would be violative of Article 21. While the courts willhave to endeavour to complete at least the recording of the evidence ofthe private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delayDoccasioned due to no fault of his own.

41. Sub-section (2) has to be read along with sub-section (1). Theproviso to sub-section (2) restricts the period of remand to a maximumof 15 days at a time. The second proviso prohibits an adjournment whenthe witnesses are in attendance except for special reasons, which aretoEbe recorded. Certain reasons for seeking adjournment are held to bepermissible. One must read this provision from the point of view of thedispensation of justice. After all, right to a fair and speedy trial is yetanother facet of Article 21. Therefore, while it is expected of the courtto comply with Section 309 of the Code to the extent possible, an

Funexplained, avoidable and prolonged delay in concluding a trial, appealor revision would certainly be a factor for the consideration of bail. Thiswe hold so notwithstanding the beneficial provision under Section 436Aof the Code which stands on a different footing.

Precedents:

G• Hussainara Khatoon &Ors. v Home Secretary, State OfBihar, 1980 (1) SCC 81:

“2. Though we issued notice to the State of Bihar two weeksago, it is unfortunate that on February 5, 1979, no one hasappeared on behalf of the State and we must, therefore, at this H

stage proceed on the basis that the allegations contained in theissues of the Indian Express dated January 8 and 9, 1979 whichare incorporated in the writ petition are correct. The informationcontained in these newspaper cuttings is most distressing andit is sufficient to stir the conscience and disturb the equanimityof any socially motivated lawyer or judge. Some of theundertrial prisoners whose names are given in the newspapercuttings have been in jail for as many as 5, 7 or 9 years and afew of them, even more than 10 years, without their trial havingbegun. What faith can these lost souls have in the judicial systemwhich denies them a bare trial for so many years and keepsthem behind bars, not because they are guilty, but becausethey are too poor to afford bail and the courts have no time totry them. It is a travesty of justice that many poor accused,“little Indians, are forced into long cellular servitude for littleoffences” because the bail procedure is beyond their meagremeans and trials don’t commence and even if they do, theynever conclude. There can be little doubt, after the dynamicinterpretation placed by this Court on Article 21 in ManekaGandhi v. Union of India [(1978) 2 SCR 621 : (1978) 1 SCC248] that a procedure which keeps such large numbers ofpeople behind bars without trial so long cannot possibly beregarded as ‘reasonable, just or fair”’ so as to be in conformitywith the requirement of that article. It is necessary, therefore,that the law as enacted by the legislature and as administeredby the courts must radically change its approach to pre-trialdetention and ensure ‘reasonable, just and fair’ procedure whichhas creative connotation after Maneka Gandhi case [(1978)2 SCR 621 : (1978) 1 SCC 248].

3. Now, one reason why our legal and judicial systemcontinually denies justice to the poor by keeping them for longyears in pre-trial detention is our highly unsatisfactory bailsystem. It suffers from a property oriented approach whichseems to proceed on the erroneous assumption that risk ofmonetary 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 earlierCode enacted towards the end of the last century and wherean accused is to be released on his personal bond, it insists that ABC

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the bond should contain a monetary obligation requiring theaccused to pay a sum of money in case he fails to appear atthe trial. Moreover, as if this were not sufficient deterrent tothe poor, the courts mechanically and as a matter of courseinsist that the accused should produce sureties who will standbail for him and these sureties must again establish theirsolvency to be able to pay up the amount of the bail in case theaccused fails to appear to answer the charge. This system ofbails operates very harshly against the poor and it is only thenon-poor who are able to take advantage of it by gettingthemselves released on bail. The poor find it difficult to furnishbail even without sureties because very often the amount ofthe bail fixed by the courts is so unrealistically excessive thatin a majority of cases the poor are unable to satisfy the policeor the Magistrate about their solvency for the amount of thebail and where the bail is with sureties, as is usually the case, itbecomes an almost impossible task for the poor to find personssufficiently solvent to stand as sureties. The result is that eitherthey are fleeced by the police and revenue officials or by toutsand professional sureties and sometimes they have even toincur debts for securing their release or, being unable to obtainrelease, they have to remain in jail until such time as the courtis able to take up their cases for trial, leading to graveconsequences, namely, (1) though presumed innocent, they aresubjected to psychological and physical deprivations of jail life,(2) they are prevented from contributing to the preparation oftheir defence, and (3) they lose their job, if they have one, andare deprived of an opportunity to work to support themselvesand their family members with the result that the burden oftheir detention almost invariably falls heavily on the innocentmembers of the family. It is here that the poor find our legaland judicial system oppressive and heavily weighted againstthem and a feeling of frustration and despair occurs upon themas they find that they are helplessly in a position of inequalitywith the non-poor. The Legal Aid Committee appointed by theGovernment of Gujarat under the chairmanship of one of us,Mr Justice Bhagwati, emphasised this glaring inequality in thefollowing words:

The bail system, as we see it administered in the criminalcourts today, is extremely unsatisfactory and needs drasticchange. In the first place it is virtually impossible to translaterisk of non-appearance by the accused into precisemonetary terms and even its basic premise that risk offinancial loss is necessary to prevent the accused fromfleeing is of doubtful validity. There are severalconsiderations which deter an accused from running awayfrom justice and risk of financial loss is only one of themand that too not a major one. The experience of enlightenedBail Projects in the United States such as Manhattan BailProject and D.C. Bail Project shows that even withoutmonetary bail it has been possible to secure the presenceof the accused at the trial in quite a large number of cases.Moreover, the bail system causes discrimination against thepoor since the poor would not be able to furnish bail onaccount of their poverty while the wealthier personsotherwise similarly situate would be able to secure theirfreedom because they can afford to furnish bail. Thisdiscrimination arises even if the amount of the bail is fixedby the Magistrate is not high, for a large majority of thosewho are brought before the courts in criminal cases are sopoor that they would find it difficult to furnish bail even in asmall amount.

The Gujarat Committee also pointed out how the practice offixing the amount of bail with reference to the nature of thecharge without taking into account relevant factors, such asthe individual financial circumstances of the accused and theprobability of his fleeing before trial, is harsh and oppressiveand discriminates against the poor:

The discriminatory nature of the bail system becomes allthe more acute by reason of the mechanical way in whichit is customarily operated. It is no doubt true thattheoretically the Magistrate has broad discretion in fixingthe amount of bail but in practice it seems that the amountof bail depends almost always on the seriousness of theoffence. It is fixed according to a schedule related to thenature of the charge. Little weight is given either to the ABC

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probability that the accused will attempt to flee before histrial or to his individual financial circumstances, the veryfactors which seem most relevant if the purpose of bail isto assure the appearance of the accused at the trial. Theresult of ignoring these factors and fixing the amount ofbail mechanically having regard only to the seriousness ofthe offence is to discriminate against the poor who are notin the same position as the rich as regards capacity to furnishbail. The courts by ignoring the differential capacity of therich and the poor to furnish bail and treating them equallyproduce inequality between the rich and the poor: the richwho is charged with the same offence in the samecircumstances is able to secure his release while the pooris unable to do so on account of his poverty. These aresome of the major defects in the bail system as it is operatedtoday.

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 oursystem of criminal justice: the reform of the bail system.

This system has endured—archaic, unjust and virtuallyunexamined —since the Judiciary Act of 1789.

The principal purpose of bail is to insure that an accusedperson will return for trial if he is released after arrest.

How is that purpose met under the present system? Thedefendant with means can afford to pay bail. He can affordto buy his freedom. But poorer defendant cannot pay theprice. He languishes in jail weeks, months and perhaps evenyears before trial.

He does not stay in jail because he is guilty.

He does not stay in jail because any sentence has beenpassed.

He does not stay in jail because he is any more likely to fleebefore 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 hardshipto the poor and if we really want to eliminate the evil effects ofpoverty and assure a fair and just treatment to the poor in theadministration of justice, it is imperative that the bail systemshould be thoroughly reformed so that it should be possible forthe poor, as easily as the rich, to obtain pre-trial release withoutjeopardising the interest of justice.

4. It is high time that our Parliament realises that risk ofmonetary loss is not the only deterrent against fleeing fromjustice, but there are also other factors which act as equaldeterrents against fleeing. Ours is a socialist republic with socialjustice as the signature tune of our Constitution and Parliamentwould do well to consider whether it would not be moreconsonant with the ethos of our Constitution that instead ofrisk of financial loss, other relevant considerations such as familyties, roots in the community, job security, membership of stableorganisations etc., should be the determinative factors in grantof bail and the accused should in appropriate cases be releasedon his personal bond without monetary obligation. Of course, itmay be necessary in such a case to provide by an amendmentof the penal law that if the accused wilfully fails to appear incompliance with the promise contained in his personal bond,he shall be liable to penal action. But even under the law as itstands today the courts must abandon the antiquated conceptunder which pre-trial release is ordered only against bail withsureties. That concept is outdated and experience has shownthat it has done more harm than good. The new insight into thesubject of pre-trial release which has been developed in sociallyadvanced countries and particularly the United States shouldnow inform the decisions of our courts in regard to pre-trialrelease. If the Court is satisfied, after taking into account, onthe basis of information placed before it, that the accused hashis roots in the community and is not likely to abscond, it cansafely release the accused on his personal bond. To determinewhether the accused has his roots in the community whichwould deter him from fleeing, the Court should take into accountthe following factors concerning the accused:

1. The length of his residence in the community, AB

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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 priorrelease on recognizance or on bail,

6. the identity of responsible members of the communitywho would vouch for his reliability,

7. the nature of the offence charged and the apparentprobability of conviction and the likely sentence insofar asthese factors are relevant to the risk of non-appearance,and

8. any other factors indicating the ties of the accused to thecommunity or bearing on the risk of wilful failure to appear.

If the court is satisfied on a consideration of the relevant factorsthat the accused has his ties in the community and there is nosubstantial risk of non-appearance, the accused may, as far aspossible, be released on his personal bond. Of course, if factsare brought to the notice of the court which go to show thathaving regard to the condition and background of the accused,his previous record and the nature and circumstances of theoffence, there may be a substantial risk of his non-appearanceat the trial, as for example, where the accused is a notoriousbad character or a confirmed criminal or the offence is serious(these examples are only by way of illustration), the Courtmay not release the accused on his personal bond and mayinsist on bail with sureties. But in the majority of cases,considerations like family ties and relationship, roots in thecommunity, employment status etc. may prevail with the Courtin releasing the accused on his personal bond and particularlyin cases where the offence is not grave and the accused ispoor or belongs to a weaker section of the community, releaseon personal bond could, as far as possible, be preferred. Buteven while releasing the accused on personal bond it isnecessary to caution the Court that the amount of the bondwhich it fixes should not be based merely on the nature of thecharge. The decision as regards the amount of the bond should be an individualised decision depending on the individualfinancial circumstances of the accused and the probability ofhis absconding. The amount of the bond should be determinedhaving regard to these relevant factors and should not be fixedmechanically according to a schedule keyed to the nature ofthe charge. Otherwise, it would be difficult for the accused tosecure his release even by executing a personal bond. Moreover,when the accused is released on his personal bond, it would bevery harsh and oppressive if he is required to satisfy the Court—and what we have said here in regard to the court must applyequally in relation to the police while granting bail—that he issolvent enough to pay the amount of the bond if he fails toappear at the trial and in consequence the bond is forfeited.The inquiry into the solvency of the accused can become asource of great harassment to him and often result in denial ofbail and deprivation of liberty and should not, therefore, beinsisted upon as a condition of acceptance of the personal bond.We have no doubt that if the system of bail, even under theexisting law, is administered in the manner we have indicatedin this judgment, it would go a long way towards relievinghardship of the poor and help them to secure pre-trial releasefrom incarceration. It is for this reason we have directed theundertrial prisoners whose names are given in the two issuesof the Indian Express should be released forthwith on theirpersonal bond. We should have ordinarily said that personalbond to be executed by them should be with monetaryobligation but we directed as an exceptional measure that thereneed be no monetary obligation in the personal bond becausewe found that all these persons have been in jail without trialfor several years, and in some cases for offences for whichthe punishment would in all probability be less than the periodof their detention and, moreover, the order we were makingwas merely an interim order. The peculiar facts andcircumstances of the case dictated such an unusual course.

5. There is also one other infirmity of the legal and judicialsystem which is responsible for this gross denial of justice tothe undertrial prisoners and that is the notorious delay in disposalof cases. It is a sad reflection on the legal and judicial systemthat the trial of an accused should not even commence for a ABC

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long number of years. Even a delay of one year in thecommencement of the trial is bad enough: how much worsecould it be when the delay is as long as 3 or 5 or 7 or even 10years. Speedy trial is of the essence of criminal justice andthere can be no doubt that delay in trial by itself constitutesdenial 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 rightto a speedy and public trial.

So also Article 3 of the European Convention on Human Rightsprovides that:

Every one arrested or detained . . . shall be entitled to trialwithin a reasonable time or to release pending trial.

We think that even under our Constitution, though speedy trialis not specifically enumerated as a fundamental right, it isimplicit in the broad sweep and content of Article 21 asinterpreted by this Court in Maneka Gandhi v. Union of India[(1978) 2 SCR 621 : (1978) 1 SCC 248]. We have held in thatcase that Article 21 confers a fundamental right on every personnot to be deprived of his life or liberty except in accordancewith the procedure prescribed by law and it is not enough toconstitute compliance with the requirement of that article thatsome semblance of a procedure should be prescribed by law,but that the procedure should be “reasonable, fair and just”. Ifa person is deprived of his liberty under a procedure which isnot “reasonable, fair or just”, such deprivation would be violativeof his fundamental right under Article 21, and he would beentitled to enforce such fundamental right and secure hisrelease. Now obviously procedure prescribed by law fordepriving a person of liberty cannot be ‘reasonable, fair orjust’ unless that procedure ensures a speedy trial fordetermination of the guilt of such person. No procedure whichdoes 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 byspeedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and libertyenshrined in Article 21. The question which would, however,arise is as to what would be the consequence if a personaccused of an offence is denied speedy trial and is sought tobe deprived of his liberty by imprisonment as a result of a long-delayed trial in violation of his fundamental right under Article21. Would he be entitled to be released unconditionally freedfrom the charge levelled against him on the ground that tryinghim after an unduly long period of time and convicting himafter such trial would constitute violation of his fundamentalright under Article 21. That is a question we shall have toconsider when we hear the writ petition on merits on theadjourned date. But one thing is certain, and we cannot impressit too strongly on the State Government that it is high time thatthe State Government realized its responsibility to the peoplein the matter of administration of justice and set up more courtsfor the trial of cases. We may point out that it would not beenough merely to establish more courts but the StateGovernment would also have to man them by competent Judgesand whatever is necessary for the purpose of recruitingcompetent Judges, such as improving their conditions of service,would have to be done by the State Government, if they wantto improve the system of administration of justice and make itan effective instrument for reaching justice to the large massesof people for whom justice is today a meaningless and emptyword.”

• Hussain &Anr. vs. Union of India & Ors., 2017 (5) SCC702:

“28. Judicial service as well as legal service are not like anyother services. They are missions for serving the society. Themission is not achieved if the litigant who is waiting in the queuedoes not get his turn for a long time. The Chief Justices andChief Ministers have resolved that all cases must be disposedof within five years which by any standard is quite a long timefor a case to be decided in the first court. Decision of cases ofundertrials in custody is one of the priority areas. There areobstructions at every level in enforcement of right of speedytrial—vested interests or unscrupulous elements try to delay AB

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the proceedings. Lack of infrastructure is another handicap.In spite of all odds, determined efforts are required at everylevel for success of the mission. Ways and means have to befound out by constant thinking and monitoring. The PresidingOfficer of a court cannot rest in a state of helplessness. This isthe constitutional responsibility of the State to provide necessaryinfrastructure and of the High Courts to monitor the functioningof subordinate courts to ensure timely disposal of cases. Thefirst step in this direction is preparation of an appropriate actionplan at the level of the High Court and thereafter at the levelof each and every individual judicial officer. Implementation ofthe action plan will require serious efforts and constantmonitoring.

29. To sum up:

29.1. The High Courts may issue directions to subordinatecourts that—

29.1.1. Bail applications be disposed of normally within oneweek; 29.1.2. Magisterial trials, where accused are in custody, benormally concluded within six months and sessions trials whereaccused are in custody be normally concluded within two years; 29.1.3. Efforts be made to dispose of all cases which are fiveyears old by the end of the year; 29.1.4. As a supplement to Section 436-A, but consistent withthe spirit thereof, if an undertrial has completed period ofcustody in excess of the sentence likely to be awarded ifconviction is recorded such undertrial must be released onpersonal bond. Such an assessment must be made by the trialcourts concerned from time to time; 29.1.5. The above timelines may be the touchstone forassessment of judicial performance in annual confidentialreports.

29.2. The High Courts are requested to ensure that bailapplications filed before them are decided as far as possiblewithin one month and criminal appeals where accused are incustody for more than five years are concluded at the earliest; 29.3. The High Courts may prepare, issue and monitorappropriate action plans for the subordinate courts; 29.4. The High Courts may monitor steps for speedyinvestigation and trials on administrative and judicial side fromtime to time; 29.5. The High Courts may take such stringent measures asmay be found necessary in the light of judgment of this Courtin Harish Uppal [Harish Uppal v. Union of India, (2003) 2SCC 45].

30. Accordingly, we request the Chief Justices of all the HighCourts to forthwith take appropriate steps consistent with thedirections of this Court in Hussainara Khatoon [HussainaraKhatoon (7) v. State of Bihar, (1995) 5 SCC 326 : 1995 SCC(Cri) 913], Akhtari Bi [Akhtari Bi v. State of M.P., (2001) 4SCC 355 : 2001 SCC (Cri) 714], Noor Mohammed [NoorMohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC(Crv) 754], Thana Singh [Thana Singh v. Central Bureauof Narcotics, (2013) 2 SCC 590 : (2013) 2 SCC (Cri) 818],Supreme Court Legal Aid Committee [Supreme Court LegalAid Committee (Representing Undertrial Prisoners) v. Unionof India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39],Imtiaz Ahmad [Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC688 : (2012) 1 SCC (Cri) 986], [Imtiyaz Ahmad v. State ofU.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) 1SCC (L&S) 731], Harish Uppal [Harish Uppal v. Union ofIndia, (2003) 2 SCC 45] and Resolution of Chief Justices’Conference and observations hereinabove and to haveappropriate monitoring mechanism in place on the administrativeside as well as on the judicial side for speeding up disposal ofcases of undertrials pending in subordinate courts and appealspending 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 emphasisedthe fact that speedy trial is a fundamental right implicit in the A

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broad sweep and content of Article 21 of the Constitution. Theaforesaid article confers a fundamental right on every personnot to be deprived of his life or liberty except in accordancewith the procedure prescribed by law. If a person is deprivedof his liberty under a procedure which is not reasonable, fair,or just, such deprivation would be violative of his fundamentalright under Article 21 of the Constitution. It has also beenemphasised by this Court that the procedure so prescribed mustensure a speedy trial for determination of the guilt of suchperson. It is conceded that some amount of deprivation ofpersonal liberty cannot be avoided, but if the period of deprivationpending trial becomes unduly long, the fairness assured byArticle 21 would receive a jolt. These are observations madein several decisions of this Court dealing with the subject ofspeedy trial. In this case, we are concerned with the casewhere a person has been found guilty of an offence punishableunder Section 302 IPC and who has been sentenced toimprisonment for life. The Code of Criminal Procedure affordsa right of appeal to such a convict. The difficulty arises whenthe appeal preferred by such a convict cannot be disposed ofwithin a reasonable time. In Kashmira Singh v. State of Punjab[(1977) 4 SCC 291 : 1977 SCC (Cri) 559] this Court dealt withsuch a case. It is observed: (SCC pp. 292-93, para 2)

“The practice not to release on bail a person who has beensentenced to life imprisonment was evolved in the HighCourts and in this Court on the basis that once a person hasbeen found guilty and sentenced to life imprisonment, heshould not be let loose, so long as his conviction and sentenceare not set aside, but the underlying postulate of this practicewas that the appeal of such person would be disposed ofwithin a measurable distance of time, so that if he is ultimatelyfound to be innocent, he would not have to remain in jail foran unduly long period. The rationale of this practice canhave no application where the Court is not in a position todispose of the appeal for five or six years. It would indeedbe a travesty of justice to keep a person in jail for a periodof five or six years for an offence which is ultimately foundnot to have been committed by him. Can the Court evercompensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell aperson: ‘We have admitted your appeal because we thinkyou have a prima facie case, but unfortunately we have notime to hear your appeal for quite a few years and, therefore,until we hear your appeal, you must remain in jail, eventhough you may be innocent?’ What confidence would suchadministration of justice inspire in the mind of the public? Itmay quite conceivably happen, and it has in fact happenedin a few cases in this Court, that a person may serve out hisfull term of imprisonment before his appeal is taken up forhearing. Would a judge not be overwhelmed with a feelingof contrition while acquitting such a person after hearingthe appeal? Would it not be an affront to his sense of justice?Of what avail would the acquittal be to such a person whohas already served out his term of imprisonment or at anyrate a major part of it? It is, therefore, absolutely essentialthat the practice which this Court has been following in thepast must be reconsidered and so long as this Court is notin a position to hear the appeal of an accused within areasonable period of time, the Court should ordinarily, unlessthere are cogent grounds for acting otherwise, release theaccused on bail in cases where special leave has beengranted to the accused to appeal against his conviction andsentence.”

9. Similar observations are found in some of the other decisionsof this Court which have been brought to our notice. But,however, it is significant to note that all these decisions onlylay down broad guidelines which the courts must bear in mindwhile dealing with an application for grant of bail to an appellantbefore the court. None of the decisions lay down any invariablerule for grant of bail on completion of a specified period ofdetention in custody. Indeed in a discretionary matter, like grantor refusal of bail, it would be impossible to lay down anyinvariable rule or evolve a straitjacket formula. The court mustexercise its discretion having regard to all the relevant factsand circumstances. What the relevant facts and circumstancesare, which the court must keep in mind, has been laid downover the years by the courts in this country in a large numberof decisions which are well known. It is, therefore, futile to ABC

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attempt to lay down any invariable rule or formula in suchmatters.

10. The counsel for the parties submitted before us that thoughit has been so understood by the courts in Punjab, the decisionof the Punjab and Haryana High Court in Dharam Pal case[(2000) 1 Chan LR 74] only lays down guidelines and not anyinvariable rule. Unfortunately, the decision has beenmisunderstood by the Court in view of the manner in whichthe principles have been couched in the aforesaid judgment.After considering the various decisions of this Court and thedifficulties faced by the courts, the High Court in Dharam Palcase [(2000) 1 Chan LR 74] observed: (Chan LR p. 87, para18)

“We, therefore, direct that life convicts, who haveundergone at least five years of imprisonment of which atleast three years should be after conviction, should bereleased on bail pending the hearing of their appeals shouldthey make an application for this purpose. We are also ofthe opinion that the same principles ought to apply to thoseconvicted by the courts martial and such prisoners shouldalso be entitled to release after seeking a suspension oftheir sentences. We further direct that the period of fiveyears 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 applicablein cases where the very grant of bail is forbidden by law.”

Section 389 of the Code

“389. Suspension of sentence pending the appeal; releaseof appellant on bail.—(1) Pending any appeal by a convictedperson, the Appellate Court may, for reasons to be recordedby it in writing, order that the execution of the sentence ororder appealed against be suspended and, also, if he is inconfinement, that he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing onbail or on his own bond a convicted person who is convicted ofan offence punishable with death or imprisonment for life orimprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writingagainst such release:

Provided further that in cases where a convicted person isreleased on bail it shall be open to the Public Prosecutor to filean application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate Courtmay be exercised also by the High Court in the case of anappeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by whichhe is convicted that he intends to present an appeal, the Courtshall, —

(i) where such person, being on bail, is sentenced toimprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has beenconvicted is a bailable one, and he is on bail,order that theconvicted person be released on bail, unless there are specialreasons for refusing bail, for such period as will affordsufficient time to present the appeal and obtain the ordersof the Appellate Court under sub-section (1), and thesentence of imprisonment shall, so long as he is so releasedon bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonmentfor a term or to imprisonment for life, the time during which heis so released shall be excluded in computing the term for whichhe is so sentenced.”

42. Section 389of the Code concerns itself with circumstancespending appeal leading to the release of the appellant on bail. The powerexercisable under Section 389 is different from that of the one eitherunder Section 437or under Section 439of the Code, pending trial. This isfor the reasonthat”presumption of innocence” and “bail is the rule andjail is the exception” may not be available to the appellant who hassuffereda conviction. A mere pendency of an appeal per se would not be afactor.

43. A suspension of sentence is an act of keeping the sentence inabeyance, pending the final adjudication. Though delay in taking up themain appeal would certainly be a factor and the benefit available under A

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ASection 436A would also be considered, the Courts will have to see therelevant factors including the conviction rendered by the trial court. Whenit is so apparent that the appeals are not likely to be taken up and disposedof, 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 orBrevision coupled with the benefit conferred under Section 436A of theCode among other factors ought to be consideredfor a favourable releaseon bail.

Precedents:

• Atul Tripathi vs State of U.P. &Anr., 2014 (9) SCC 177:C

“13. It may be seen that there is a marked difference betweenthe procedure for consideration of bail under Section 439, whichis pre-conviction stage and Section 389 CrPC, which is post-conviction stage. In case of Section 439, the Code providesthat only notice to the public prosecutor unless impractical beDgiven before granting bail to a person who is accused of anoffence which is triable exclusively by the Court of Sessionsor where the punishment for the offence is imprisonment forlife; whereas in the case of post-conviction bail under Section389 CrPC, where the conviction in respect of a serious offenceEhaving punishment with death or life imprisonment orimprisonment for a term not less than ten years, it is mandatorythat the appellate court gives an opportunity to the publicprosecutor for showing cause in writing against such release.

14. …in case the appellate court is inclined to consider therelease of the convict on bail, the public prosecutor shall begranted an opportunity to show cause in writing as to why theAppellant be not released on bail. Such a stringent provision isintroduced only to ensure that the court is apprised of all therelevant factors so that the court may consider whether it is anappropriate case for release having regard to the manner inwhich the crime is committed, gravity of the offence, age,criminal antecedents of the convict, impact on public confidencein the justice-delivery system, etc. Despite such an opportunitybeing granted to the Public Prosecutor, in case no cause isshown in writing, the appellate court shall record that the Statehas not filed any objection in writing. This procedure is intended G

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to ensure transparency, to ensure that there is no allegation ofcollusion and to ensure that the court is properly assisted bythe State with true and correct facts with regard to the relevantconsiderations 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 theHigh Court, the Court has ample power and discretion tosuspend the sentence, but that discretion has to be exercisedjudiciously depending on the facts and circumstances of eachcase. While considering the suspension of sentence, each caseis to be considered on the basis of nature of the offence, mannerin which occurrence had taken place, whether in any mannerbail granted earlier had been misused. In fact, there is nostraitjacket formula which can be applied in exercising thediscretion. The facts and circumstances of each case willgovern the exercise of judicial discretion while considering theapplication filed by the convict under Section 389 of the CriminalProcedure Code.”

• Sunil Kumar v. Vipin Kumar (2014) 8 SCC 868:

“13. We have heard the rival legal contentions raised by boththe parties. We are of the opinion that the High Court hasrightly applied its discretionary power under Section 389 CrPCto enlarge the respondents on bail. Firstly, both the criminalappeal and criminal revision filed by both the parties are pendingbefore the High Court which means that the convictions of therespondents are not confirmed by the appellate court. Secondly,it is an admitted fact that the respondents had been grantedbail earlier and they did not misuse the liberty. Also, therespondents had conceded to the occurrence of the incidentthough with a different version.

14. We are of the opinion that the High Court has taken intoconsideration all the relevant facts including the fact that thechance of the appeal being heard in the near future is extremelyremote, hence, the High Court has released the respondentson bail on the basis of sound legal reasoning. We do not wishto interfere with the decision of the High Court at this stage.The appeal is dismissed accordingly.”

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45. However, we hasten to add that if the court is inclined torelease the appellant on bail, it has to be predicated on his own bond asfacilitated by Sub-section (1).

Section 436A of the Code

436A. Maximum period for which an undertrial prisoner canBbe detained.—Where a person has, during the period ofinvestigation, inquiry or trial under this Code of an offenceunder any law (not being an offence for which the punishmentof death has been specified as one of the punishments underthat law) undergone detention for a period extending up toone-half of the maximum period of imprisonment specified forCthat offence under that law, he shall be released by the Courton his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutorand for reasons to be recorded by it in writing, order thecontinued detention of such person for a period longer thanDone-half of the said period or release him on bail instead of thepersonal bond with or without sureties:

Provided further that no such person shall in any case bedetained during the period of investigation, inquiry or trial formore than the maximum period of imprisonment provided forEthe said offence under that law.

Explanation.—In computing the period of detention under thissection for granting bail, the period of detention passed due todelay in proceeding caused by the accused shall be excluded.

46. Section 436Aof the Code has been inserted by Act 25 ofF2005. This provision has got a laudable object behind it, particularly fromthe point of view of granting bail.This provision draws the maximumperiod for which an undertrial prisoner can be detained. This period hasto be reckoned with the custody of the accused during the investigation,inquiry and trial. We have already explained that the word ‘trial’ willhave to be given an expanded meaning particularly when an appeal orGadmission is pending. Thus, in a case where an appeal is pending for alonger time, to bring it under Section 436A, the period of incarceration inall forms will have to be reckoned, and so also for the revision.

47. Under this provision, when a person has undergone detentionfor a period extending to one-half of the maximum period of imprisonmentHspecified for that offense, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes themandatory compliance of this provision. We do feel that there is noteven a need for a bail application in a case of this nature particularlywhen the reasons for delay are not attributable against the accused. Weare also conscious of the fact that while taking a decision the publicprosecutor is to be heard, and the court, if it is of the view that there is aneed for continued detention longer than one-half of the said period, hasto do so. However, such an exercise of power is expected to beundertaken sparingly being an exception to the general rule. Once again,we have to reiterate that ‘bail is the rule and jail is an exception’ coupledwith the principle governing the presumption of innocence. We have nodoubt in our mind that this provision is asubstantive one, facilitating liberty,being the core intendment of Article 21. The only caveat as furnishedunder the Explanation being the delay in the proceeding caused onaccount of the accused to be excluded. This court in Bhim Singh v.Union of India, (2015) 13 SCC 605, while dealing with the aforesaidprovision, has directed that:

“5. Having given our thoughtful consideration to the legislativepolicy engrafted in Section 436-A and large number of undertrialprisoners housed in the prisons, we are of the considered viewthat some order deserves to be passed by us so that the undertrialprisoners do not continue to be detained in prison beyond themaximum period provided under Section 436-A.

6. We, accordingly, direct that jurisdictional Magistrate/ChiefJudicial Magistrate/Sessions Judge shall hold one sitting in a weekin each jail/prison for two months commencing from 1-10-2014for the purposes of effective implementation of Section 436-A ofthe Code of Criminal Procedure. In its sittings in jail, the abovejudicial officers shall identify the undertrial prisoners who havecompleted half period of the maximum period or maximum periodof imprisonment provided for the said offence under the law andafter complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of suchundertrial prisoners who fulfil the requirement of Section 436-Afor their release immediately. Such jurisdictional Magistrate/ChiefJudicial Magistrate/Sessions Judge shall submit the report of eachof such sittings to the Registrar General of the High Court and atthe end of two months, the Registrar General of each High Court A

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Ashall submit the report to the Secretary General of this Courtwithout any delay. To facilitate compliance with the above order,we direct the Jail Superintendent of each jail/prison to provide allnecessary facilities for holding the court sitting by the above judicialofficers. A copy of this order shall be sent to the Registrar Generalof each High Court, who in turn will communicate the copy of theBorder to all Sessions Judges within his State for necessarycompliance.”

48. The aforesaid directions issued by this Court if not compliedfully, are expected to be complied with in order to prevent the unnecessaryincarceration of undertrials, and to uphold the inviolable principle ofCpresumption of innocence until proven guilty.

Section 437 of the Code

“437. When bail may be taken in case of non-bailableoffence.—1 [(1) When any person accused of, or suspectedof, the commission of any non-bailable offence is arrested orDdetained without warrant by an officer in charge of a policestation or appears or is brought before a Court other than theHigh Court or Court of session, he may be released on bail,but—

(i) such person shall not be so released if there appearreasonable grounds for believing that he has been guilty ofan offence punishable with death or imprisonment for life; E

(ii) such person shall not be so released if such offence is acognizable offence and he had been previously convictedof an offence punishable with death, imprisonment for lifeFor imprisonment for seven years or more, or he had beenpreviously convicted on two or more occasions of acognizable 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 inclause (i) or clause (ii) be released on bail if such person isunder the age of sixteen years or is a woman or is sick orinfirm:

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Provided further that the Court may also direct that a personreferred to in clause (ii) be released on bail if it is satisfied thatit is just and proper so to do for any other special reason:

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Provided also that the mere fact that an accused person maybe required for being identified by witnesses during investigationshall not be sufficient ground for refusing to grant bail if he isotherwise entitled to be released on bail and gives an undertakingthat he shall comply with such directions as may be given bythe Court:]

Provided also that no person shall, if the offence alleged tohave 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 withoutgiving an opportunity of hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of theinvestigation, inquiry or trial, as the case may be, that there arenot reasonable grounds for believing that the accused hascommitted a non-bailable offence, but that there are sufficientgrounds for further inquiry into his guilt, the accused shall,subject to the provisions of section 446A and pending suchinquiry, be released on bail, or, at the discretion of such officeror Court, on the execution by him of a bond without suretiesfor his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission ofan offence punishable with imprisonment which may extendto seven years or more or of an offence under Chapter VI,Chapter XVI or Chapter XVII of the Indian Penal Code (45of 1860) or abatement of, or conspiracy or attempt to commit,any such offence, is released on bail under sub-section (1), theCourt shall impose the conditions,—

(a) that such person shall attend in accordance with theconditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar tothe offence of which he is accused, or suspected, of thecommission of which he is suspected, and

(c) that such person shall not directly or indirectly makeany inducement, threat or promise to any person acquaintedwith the facts of the case so as to dissuade him fromdisclosing such facts to the Court or to any police officer ortamper with the evidence, and may also impose, in the A

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interests of justice, such other conditions as it considersnecessary.]

(4) An officer or a Court releasing any person on bail undersub-section (1) or sub-section (2), shall record in writing his orits 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 necessaryso to do, direct that such person be arrested and commit him tocustody.

(6) If, in any case triable by a Magistrate, the trial of a personaccused of any non-bailable offence is not concluded within aperiod of sixty days from the first date fixed for taking evidencein the case, such person shall, if he is in custody during thewhole of the said period, be released on bail to the satisfactionof 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 personaccused of a non-bailable offence and before judgment isdelivered, the Court is of opinion that there are reasonablegrounds for believing that the accused is not guilty of any suchoffence, it shall release the accused, if he is in custody, on theexecution by him of a bond without sureties for his appearanceto hear judgment delivered.”

49. Seeking to impeach Warren Hastings for his activities duringthe colonial period, Sir Edmund Burke madethe following famousstatement in”The World’s Famous Orations”authored by Bryan, WilliamJennings, published by New York: Funk and Wagnalls Company, 1906:

“Law and arbitrary power are in eternal enmity. Name me amagistrate, and I will name property; name me power, and I willname protection. It is a contradiction in terms, it is blasphemy inreligion, it is wickedness in politics, to say that any man can havearbitrary power. In every patent of office the duty is included. Forwhat else does a magistrate exist? To suppose for power is anabsurdity in idea. Judges are guided and governed by the eternallaws of justice, to which we are all subject. We may bite ourchains, if we will, but we shall be made to know ourselves, and betaught that man is born to be governed by law; and he that willsubstitute will in the place of it is an enemy to God.”

50. Section 437of the Code is a provision dealing with bail in caseof non-bailable offenses by a court other than the High Court or a Courtof Sessions. Here again, bail is the rule but the exception would comewhen the court is satisfied that there are reasonable grounds that theaccused has been guilty of the offense punishable either with death orimprisonment for life. Similarly, if the said person is previously convictedof an offense punishable with death or imprisonment for life orimprisonment for seven years or more or convicted previously on two ormore occasions, the accused shall not be released on bail by themagistrate.

51. Proviso to Section 437of the Code mandates that when theaccused is under the age of sixteen years, sick or infirm or being awoman, 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. Ina case pertaining to women, the court is expected to show somesensitivity. We have already takennote of the fact that many womenwho commit cognizable offensesare poor and illiterate.In many cases,upon being young they have children to take care of, and there are manyinstances when the children are to live in prisons. The statistics wouldshow that more than 1000 children are living in prisons along with theirmothers. This is an aspect that the courts are expected to take note ofas it would not only involve the interest of the accused, but also thechildren who are not expected to get exposed to the prisons. There is agrave danger of their being inherited not only with poverty but with crimeas well.

52. The power of a court is quite enormous while exercising thepower under Section 437. Apart from the general principle which wehave discussed, the court is also empowered to grant bail on specialreasons. The said power has to be exercised keeping in view the mandateof Section 41 and 41A of the Code as well. If there is a proper exerciseof power either by the investigating agencies or by the court, the majorityof the problem of the undertrials would be taken care of.

53. The proviso to Section 437 warrants an opportunity to beafforded to the learned Public Prosecutor while considering an offensepunishable with death, imprisonment for life, or imprisonment for sevenyears or more. Though, this proviso appears to be contrary to the mainprovision contained in Section 437(1) which, by way of a positivedirection, prohibits the Magistrate from releasing a person guilty of an AB

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Aoffense punishable with either death or imprisonment for life. It is tritethat 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 excludethe offense exclusively triable by the Court of Sessions. Thus, one hasto understand the proviso by a combined reading of Sections 437 and439 of the Code, as the latter provision reiterates the aforesaid provisionBto the exclusion of the learned Magistrate over an offense triableexclusively by a Court of Sessions. To make the position clear, if theMagistrate has got the jurisdiction to try an offense for which themaximum punishment is either life or death, when such jurisdiction isconferred on the learned Magistrate, it goes without saying that the powerCto release the accused on bail for the offense alleged also can beexercised. This Court in Prahlad Singh Bhati v. NCT, Delhi, (2001) 4SCC 280 has held:

“7. Powers of the Magistrate, while dealing with the applicationsfor grant of bail, are regulated by the punishment prescribed forDthe offence in which the bail is sought. Generally speaking ifpunishment prescribed is for imprisonment for life and death penaltyand the offence is exclusively triable by the Court of Session, theMagistrate has no jurisdiction to grant bail unless the matter iscovered by the provisos attached to Section 437 of the Code. Thelimitations circumscribing the jurisdiction of the Magistrate areEevident and apparent. Assumption of jurisdiction to entertain theapplication is distinguishable from the exercise of the jurisdiction.”

54. We wish to place reliance on the judgment of the BombayHigh Court in The Balasaheb Satbhai Merchant Coop Bank Ltd.vs. The State of Maharashtra and Ors., 2011 SCC OnLine BomF1261:

“13. At this stage, it may be useful to quote the observations ofthis Court in “Ambarish Rangshhi Patnigere v. State ofMaharashtra” referred supra, which reads thus - G“17. It may be noted here that the learned Counsel forintervener contended that the Magistrate did not havejurisdiction to grant bail because the offences under Sections467 and 409 IPC, carry punishment which may be lifeimprisonment. According to the learned Counsel, if the offenceis punishable with sentence of death or life imprisonment, theH

Magistrate cannot grant bail under Section 437(1) Cr.P.C.,unless there are special grounds mentioned therein. He reliedupon certain authorities in this respect including Prahlad SighBhati v. NCT, Delhi and Anr. JT 2001 (4) SCC 280. In thatcase, offence was under Section 302 which is punishable withdeath sentence or life imprisonment and is exclusively triableby Court of Sessions. The offence under Section 409 ispunishable with imprisonment for life or imprisonment for 10years and fine. Similarly, the office under Section 467 is alsopunishable with imprisonment for life or imprisonment for 10years and fine. Even though the maximum sentence whichmay be awarded is life imprisonment, as per Part I of Scheduleannexed to Cr.P.C., both these offences are triable by aMagistrate of First Class. It appears that there are severaloffences including under sec. 326 in the Penal Code, 1860wherein sentence, which may be awarded, is imprisonmentfor life or imprisonment for lesser terms and such offencesare triable by Magistrate of the First Class. If the Magistrateis empowered to try the case and pass judgment and order ofconviction or acquittal, it is difficult to understand why hecannot pass order granting bail, which is interlocutory innature, in such cases. In fact, the restriction under Section437(1) Cr.P.C. is in respect of those offences which arepunishable with alternative sentence of death or lifeimprisonment. If the offence is punishable with lifeimprisonment or any other lesser sentence and is triable byMagistrate, it cannot be said that Magistrate does not havejurisdiction to consider the bail application. In taking thisview, I am supported by the old Judgment of Nagpur JudicialCommissioner’s Court in Tularam and Ors. v. Emperor 27Cri.L.J. 1926 page 1063 and also by the Judgment of theKerala High Court in Satyan v. State 1981 Cr. L.J. 1313. InSatyan, the Kerala High Court considered several earlierjudgments 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 thereare reasonable grounds for believing that he has committedan offence punishable with death or an offence punishablewith imprisonment for life. In other words the learned AB

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Magistrate has interpreted the expression “offencepunishable with death or imprisonment for life” in Section437(1) to include all offences where the punishment extendsto imprisonment for life. This reasoning, no doubt, is seenadopted in an old Rangoon Case H.M. Boudville v.Emperor, AIR 1925 129 : (1925) 26 Cri LJ 427 whileinterpreting the phrase “an offence punishable with deathor 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). TheRangoon High Court held that the prohibition againstgranting bail is confined to cases where the sentence iseither death or alternative transportation for life. In otherwords, what the Court held was that the phrase “death ortransportation for life” in Section 497 of the old Code didnot extend to offences punishable with transportation forlife only, it will be interesting to note the following passagefrom the above judgment:

“It is difficult to see what principle, other than pureempiricism should distinguish offences punishable withtransportation for life from offences punishable withlong terms of imprisonment; why, for instance, thedetenu accused of lurking house trespass with a viewto commit theft, for which the punishment is fourteenyears imprisonment, should be specially favoured asagainst the individual who has dishonestly receivedstolen property, knowing that it was obtained by dacoity,for which the punishment happens to be transportationfor life? It cannot seriously be argued that thecomparatively slight difference in decree of possiblepunishment will render it morally less likely that theperson arrested will put in an appearance in the onecase rather than the other. On the other hand the degreeof difference is so great as between transportation forlife and death as to be immeasurable. A prudentLegislature will, therefore, withdraw from the discretionof the Magistracy cases in which, if guilt is probable,even a man of the greatest fortitude may be wiling topay a material price, however, exorbitant, for life.”

The above decision has been followed by the Nagpur HighCourt in the case reported in Tularam v. Emperor, (AIR 1927Nag 53) : (1926) 27 Cri LJ 1063).

“8. The reasoning applies with equal force in interpretingthe phrase “offence punishable with death or imprisonmentfor life” So long as an offence under section 326 is triableby a Magistrate of the First Class there is no reason why itshould be viewed differently in the matter of granting bailfrom an offence under Section 420 I.P.C. for which thepunishment extends imprisonment for 7 years or any othernon-bailable offence for which the punishment is a termof imprisonment.”

It would be illogical and incomprehensible to say that themagistrate who can hold the trial and pass judgment ofacquittal or conviction for the offences punishable withsentence of life imprisonment or lesser term of imprisonment,for example in offences under S. 326, 409, 467, etc., cannotconsider the application for bail in such offences. In fact, itappears that the restriction under Section 437(1) (a) isapplicable only to those cases which are punishable with deathsentence or life imprisonment as alternative sentence. It maybe noted that in Prahlad Sigh Bhati(supra), in para 6, theSupreme Court held that even though there is no legal barfor a Magistrate to consider an application for grant of bailto a person who is arrested for an offence exclusively triableby a Court of session, yet it would be proper and appropriatethat in such a case the Magistrate directs the accused personto approach the Court of Session for the purposes of gettingthe relief of bail. This may be applicable to many cases,wherein the sentence, which may be awarded, is not even lifeimprisonment, but the offence is exclusively triable by courtof Sessions for example offences punishable under Sections306, 308, 314, 315, 316, 399, 400 and 450. Taking intoconsideration the legal position, I do not find any substancein the contention of Mr. Bhatt, learned Counsel for theintervener that merely because the offence is under Section409 and 467 IPC, Magistrate did not have jurisdiction tohear and grant the bail.

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14. It may also be useful to refer the observations of this Courtin Ishan Vasant Deshmukh v. State of Maharashtra” referredsupra, which read thus—

“The observations of the Supreme Court that generallyspeaking if the punishment prescribed is that ofimprisonment for life or death penalty, and the offence isexclusively triable by the Court of Sessions, the Magistratehas no jurisdiction to grant bail, unless the matter iscovered by the provisos attached to section 437 of theCode. Thus, merely because an offence is punishable whenimprisonment for life, it does not follow a Magistrate wouldhave no jurisdiction to grant bail, unless offence is alsoexclusively triable by the Court of Sessions. This, impliesthat the Magistrate would be entitled to grant bail in casestriable by him even though punishment prescribed mayextend to imprisonment for life. This Judgment in PrahladSingh Bhati’s case had not been cited before Judge, whodecided State of Maharashtra v. Rajkumar Kunda Swami.Had this Judgment been noticed by the Hon’ble Judgedeciding that case, the observation that the Magistrate maynot decide an application for bail if the offence ispunishable with imprisonment for life would possibly wouldnot have been made. In view of the observations of theSupreme Court in Prahlad Singh Bhati’s case, it is clearthat the view taken by J.H. Bhatia, J. in AmbarishRangshahi Patnigere v. State of Maharashtra, reported at2010 ALL MR (Cri) 2775 is in tune with the Judgment ofthe Supreme Court and therefore, the Magistrate wouldhave jurisdiction to grant bail.”

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55. Thus, we would like to reiterate the aforesaid position so thatthe jurisdictional Magistrate who otherwise has the jurisdiction to try acriminal case which provides for a maximum punishment of either life orGdeath sentence, has got ample jurisdiction to consider the release onbail.

Section 439of the Code

“439. Special powers of High Court or Court of Sessionregarding bail.—

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(1) A High Court or Court of Session may direct—

(a) that any person accused of an offence and in custodybe released on bail, and if the offence is of the naturespecified in sub-section (3) of section 437, may impose anycondition which it considers necessary for the purposesmentioned in that sub-section; (b) that any condition imposed by a Magistrate whenreleasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, beforegranting bail to a person who is accused of an offence which istriable exclusively by the Court of Session or which, though not sotriable, is punishable with imprisonment for life, give notice of theapplication for bail to the Public Prosecutor unless it is, for reasonsto be recorded in writing, of opinion that it is not practicable togive such notice.

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(2) A High Court or Court of Session may direct that any personwho has been released on bail under this Chapter be arrested andcommit him to custody.”

56. Section 439confers a power upon the High Court or a Courtof Sessions regarding the bail. This power is to be exercised against theorder of the judicial magistrate exercising power under Section 437 ofthe Codeor in a case triable by the Court of Sessions exclusively. In theformer set of cases, the observations made by us would apply to theexercise of power under Section 439 as well.

57. Interestingly,the second proviso to Section 439 prescribes forthe notice of an application to be served on the public prosecutor withina time limit of 15 days on the set of offenses mentioned thereunder.Similarly, proviso to sub-section (1)(a) makes it obligatory to give noticeof the application for bail to the public prosecutor as well as the informantor any other person authorised by him at the time of hearing theapplication for bail. This being the mandate of the legislation, the HighCourt and the Court of Sessions shall see to it that it is being compliedwith.

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Aof an offense punishable either with life imprisonment or death triableexclusively by the Court of Sessions. The first proviso facilitates a courtto conditionally release on bail an accused if he is under the age of 16years or is a woman or is sick or infirm, as discussed earlier. This beinga welfare legislation, though introduced by way of a proviso, has to beapplied while considering release on bail either by the Court of SessionsBor the High Court, as the case may be. The power under Section 439 ofthe Codeis exercised against an order rejecting an application for bailand against an offence exclusively decided by the Court of Sessions.There cannot be a divided application of proviso to Section 437, whileexercising the power under Section 439. While dealing with a welfareClegislation, a purposive interpretation giving the benefit to the needy personbeing the intendment is the role required to be played by the court. Wedo not wish to state that this proviso has to be considered favourably inall cases as the application depends upon the facts and circumstancescontained therein. What is required is the consideration per se by thecourt of this proviso among other factors.DSection 440 of the Code “440. Amount of bond and reduction thereof.—(1) The amountof every bond executed under this Chapter shall be fixed with dueregard to the circumstances of the case and shall not be excessive.

E(2) The High Court or Court of Session may direct that the bailrequired by a police officer or Magistrate be reduced.”

59. Before we deal with the objective behind Section 440, certainprecedents and laws adopted in the United States of America are requiredto be taken note of.F

60. In the State of Illinois, a conscious decision was taken todispense with the requirement of cost as a predominant factor in theexecution of a warrant while granting bail, as such a condition is anaffront to liberty, and thus, affects the fundamental rights of an arrestee.If an individual is not able to comply with the condition due to theGcircumstances beyond his control, and thus making it impossible for himto enjoy the fruits of the bail granted, it certainly constitutes an act ofinjustice. The objective behind granting of bail is different from theconditions imposed. The State of Illinois took note of the fact that aprisoner cannot be made to comply with the deposit of cash as a pre-condition for enlargement, and therefore dispensed with the same.H

61. When such an onerous condition was challenged on the premisethat it affects a category of persons who do not have the financialwherewithal, making them to continue in incarceration despite a temporaryrelief being granted, enabling them to conduct the trial as free persons,the Supreme Court of California inIn re Kenneth Humphrey, S247278;482 P.3d 1008 (2021), was pleased to hold that the very objective is lostand would possibly impair the preparation of a defense, as such, thecourt was of the view that such onerous conditions cannot be sustainedin the eye of law. Relevant paras of the judgment are reproducedhereunder:

IV.

….In choosing between pretrial release and detention, werecognize that absolute certainty — particularly at the pretrialstage, when the trial meant to adjudicate guilt or innocence is yetto occur — will prove all but impossible. A court making thesedeterminations should focus instead on risks to public or victimsafety or to the integrity of the judicial process that are reasonablylikely to occur. (See Stack v. Boyle (1951) 342 U.S. 1, 8 (conc.opn. of Jackson, J.) [“Admission to bail always involves a riskthat the accused will take flight. That is a calculated risk whichthe law takes as the price of our system of justice”]; cf. Salerno,supra, 481 U.S. at p. 751 [discussing an arrestee’s “identified andarticulable threat to an individual or the community”].)

Even when a bail determination complies with the aboveprerequisites, the court must still consider whether the deprivationof liberty caused by an order of pretrial detention is consistentwith state statutory and constitutional law specifically addressingbail — a question not resolved here7 — and with due process.While due process does not categorically prohibit the governmentfrom ordering pretrial detention, it remains true that “[i]n our societyliberty is the norm, and detention prior to trial or without trial is thecarefully limited exception.” (Salerno, supra, 481 U.S. at p. 755.)

V.

In a crucially important respect, California law is in line with thefederal Constitution: “liberty is the norm, and detention prior totrial or without trial is the carefully limited exception.” (Salerno,supra, 481 U.S. at p. 755.) An arrestee may not be held in custody A

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Apending trial unless the court has made an individualizeddetermination that (1) the arrestee has the financial ability to pay,but nonetheless failed to pay, the amount of bail the court findsreasonably necessary to protect compelling government interests;or (2) detention is necessary to protect victim or public safety, orensure the defendant’s appearance, and there is clear andBconvincing evidence that no less restrictive alternative willreasonably vindicate those interests. (See Humphrey, supra, 19Cal.App.5th at p. 1026.) Pretrial detention on victim and publicsafety grounds, subject to specific and reliable constitutionalconstraints, is a key element of our criminal justice system.CConditioning such detention on the arrestee’s financial resources,without ever assessing whether a defendant can meet thoseconditions or whether the state’s interests could be met by lessrestrictive alternatives, is not.”

62. Under Section 440 the amount of every bond executed underDChapter XXXIII is to be fixed with regard to the circumstances of thecase and shall not be excessive. This is a salutary provision which has tobe kept in mind. The conditions imposed shall not be mechanical anduniform in all cases. It is a mandatory duty of the court to take intoconsideration the circumstances of the case and satisfy itself that it isnot excessive. Imposing a condition which is impossible of complianceEwould be defeating the very object of the release. In this connection, wewould only say that Section 436,437, 438 and 439 of the Code are to beread in consonance. Reasonableness of the bond and surety is somethingwhich the court has to keep in mind whenever the same is insisted upon,and therefore while exercising the power under Section 88 of the CodeFalso the said factum has to be kept in mind. This Court in HussainaraKhatoon &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 aprisoner awaiting trial on bail or on the execution of a personalGbond without sureties for his appearance, I have to say this briefly.There is an amplitude of power in this regard within the existingprovisions of the Code of Criminal Procedure, and it is for thecourts to fully acquaint themselves with the nature and extent oftheir discretion in exercising it. I think it is no longer possible tocountenance a mechanical exercise of the power. What should H

be the amount of security required or the monetary obligationdemanded in a bond is a matter calling for the careful considerationof several factors. The entire object being only to ensure that theundertrial does not flee or hide himself from trial, all the relevantconsiderations which enter into the determination of that questionmust be taken into account. [ Section 440, Cr.P.C.] A synopticimpression of what the considerations could be may be drawnfrom the following provision in the United States Bail Reform Actof 1966 :

In determining which conditions of releases will reasonablyassure appearance, the judicial officer shall, on the basis ofavailable information, take into account the nature andcircumstances of the offence charged, the weight of theevidence against the accused, the accused’s family ties,employment, financial resources, character and mentalcondition, the length of his residence in the community, his recordof convictions, and his record of appearance at courtproceedings or of flight to avoid prosecution or failure to appearat court proceedings. [18 US S. 3146(b)]

These are considerations which should be kept in mind whendetermining the amount of the security or monetary obligation.Perhaps, if this is done the abuses attendant on the prevailingsystem of pre-trial release in India could be avoided or, in anyevent, greatly reduced. See Moti Ram v. State of M.P. [(1978) 4SCC 47]”

CATEGORIES A & B

63. We have already dealt with the relevant provisions which wouldtake care of categories A and B. At the cost of repetition,we wish tostate that, in category A, one would expect a better exercise of discretionon 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 againkeeping in view the general principle of law and the provisions,asdiscussed by us.

SPECIAL ACTS (CATEGORY C)

64. Now we shall come to category (C). We do not wish to dealwith individual enactments as each special Act has got an objective behindit, followed by the rigor imposed. The general principle governing delay A

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Awould apply to these categories also. To make it clear, the provisioncontained in Section 436A of the Code would apply to the Special Actsalso in the absence of any specific provision.For example, the rigor asprovided under Section 37 of the NDPS Act would not come in the wayin such a case as we are dealing with the liberty of a person. We do feelthat more the rigor, the quicker the adjudication ought to be. After all, inBthese types of cases number of witnesses would be very less and theremay not be any justification for prolonging the trial. Perhaps there is aneed to comply with the directions of this Court to expedite the processand also a stricter compliance of Section 309 of the Code.

PrecedentsC

• Union of India v. K.A. Najeeb, (2021) 3 SCC 713:

“15. This Court has clarified in numerous judgments that theliberty guaranteed by Part III of the Constitution would coverwithin its protective ambit not only due procedure and fairnessDbut also access to justice and a speedy trial. In Supreme CourtLegal 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 thatundertrials cannot indefinitely be detained pending trial. Ideally,Eno person ought to suffer adverse consequences of his actsunless the same is established before a neutral arbiter. However,owing to the practicalities of real life where to secure aneffective trial and to ameliorate the risk to society in case apotential criminal is left at large pending trial, the courts areFtasked with deciding whether an individual ought to be releasedpending trial or not. Once it is obvious that a timely trial wouldnot be possible and the accused has suffered incarceration fora significant period of time, the courts would ordinarily beobligated to enlarge them on bail.”

G• Supreme Court Legal Aid Committee v. Union ofIndia(1994) 6 SCC 731:

“15. …In substance the petitioner now prays that all undertrialswho are in jail for the commission of any offence or offencesunder the Act for a period exceeding two years on account ofthe delay in the disposal of cases lodged against them should H

be forthwith released from jail declaring their further detentionto be illegal and void and pending decision of this Court on thesaid larger issue, they should in any case be released on bail. Itis indeed true and that is obvious from the plain language ofSection 36(1) of the Act, that the legislature contemplated thecreation of Special Courts to speed up the trial of thoseprosecuted for the commission of any offence under the Act.It is equally true that similar is the objective of Section 309 ofthe Code. It is also true that this Court has emphasised in aseries of decisions that Articles 14, 19 and 21 sustain and nourisheach 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 HussainaraKhatoon (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. Stateof Bihar [(1983) 2 SCC 104 : 1983 SCC (Cri) 361] to quoteonly a few. This is also the avowed objective of Section 36(1)of the Act. However, this laudable objective got frustrated whenthe State Government delayed the constitution of sufficientnumber of Special Courts in Greater Bombay; the process ofconstituting the first two Special Courts started with theissuance of notifications under Section 36(1) on 4-1-1991 andunder Section 36(2) on 6-4-1991 almost two years from 29-5-1989 when Amendment Act 2 of 1989 became effective. Sincethe number of courts constituted to try offences under the Actwere not sufficient and the appointments of Judges to manthese courts were delayed, cases piled up and the provision inregard to enlargement on bail being strict the offenders havehad to languish in jails for want of trials. As stated earlier Section37 of the Act makes every offence punishable under the Actcognizable and non-bailable and provides that no person accusedof an offence punishable for a term of five years or more shallbe released on bail unless (i) the Public Prosecutor has had anopportunity to oppose bail and (ii) if opposed, the court issatisfied that there are reasonable grounds for believing thathe is not guilty of the offence and is not likely to indulge insimilar activity. On account of the strict language of the saidprovision very few persons accused of certain offences under ABC

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the Act could secure bail. Now to refuse bail on the one handand to delay trial of cases on the other is clearly unfair andunreasonable and contrary to the spirit of Section 36(1) of theAct, Section 309 of the Code and Articles 14, 19 and 21 of theConstitution. We are conscious of the statutory provision findingplace in Section 37 of the Act prescribing the conditions whichhave to be satisfied before a person accused of an offenceunder the Act can be released. Indeed, we have adverted tothis section in the earlier part of the judgment. We have alsokept in mind the interpretation placed on a similar provision inSection 20 of the TADA Act by the Constitution Bench inKartar Singh v. State of Punjab [(1994) 3 SCC 569 : 1994SCC (Cri) 899]. Despite this provision, we have directed asabove mainly at the call of Article 21 as the right to speedytrial may even require in some cases quashing of a criminalproceeding altogether, as held by a Constitution Bench of thisCourt in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225 :1992 SCC (Cri) 93], release on bail, which can be taken to beembedded in the right of speedy trial, may, in some cases bethe demand of Article 21. As we have not felt inclined to acceptthe extreme submission of quashing the proceedings and settingfree the accused whose trials have been delayed beyondreasonable time for reasons already alluded to, we have feltthat deprivation of the personal liberty without ensuring speedytrial would also not be in consonance with the right guaranteedby Article 21. Of course, some amount of deprivation ofpersonal liberty cannot be avoided in such cases; but if theperiod of deprivation pending trial becomes unduly long, thefairness assured by Article 21 would receive a jolt. It is becauseof this that we have felt that after the accused persons havesuffered imprisonment which is half of the maximumpunishment provided for the offence, any further deprivationof personal liberty would be violative of the fundamental rightvisualised by Article 21, which has to be telescoped with theright guaranteed by Article 14 which also promises justness,fairness and reasonableness in procedural matters. What thenis the remedy? The offences under the Act are grave and,therefore, we are not inclined to agree with the submission ofthe learned counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trialsare delayed beyond reasonable time. Alternatively, he contendedthat such accused persons whose trials have been delayedbeyond reasonable time and are likely to be further delayedshould be released on bail on such terms as this Court considersappropriate to impose. This suggestion commends to us. Wewere told by the learned counsel for the State of Maharashtrathat additional Special Courts have since been constituted buthaving regard to the large pendency of such cases in the Statewe are afraid this is not likely to make a significant dent in thehuge pile of such cases. We, therefore, direct as under:

(i) Where the undertrial is accused of an offence(s) underthe Act prescribing a punishment of imprisonment of fiveyears or less and fine, such an undertrial shall be releasedon bail if he has been in jail for a period which is not lessthan half the punishment provided for the offence with whichhe is charged and where he is charged with more than oneoffence, the offence providing the highest punishment. Ifthe offence with which he is charged prescribes themaximum fine, the bail amount shall be 50% of the saidamount with two sureties for like amount. If the maximumfine is not prescribed bail shall be to the satisfaction of theSpecial Judge concerned with two sureties for like amount.

(ii) Where the undertrial accused is charged with anoffence(s) under the Act providing for punishment exceedingfive years and fine, such an undertrial shall be released onbail on the term set out in (i) above provided that his bailamount shall in no case be less than Rs 50,000 with twosureties for like amount.

(iii) Where the undertrial accused is charged with anoffence(s) under the Act punishable with minimumimprisonment of ten years and a minimum fine of Rupeesone lakh, such an undertrial shall be released on bail if hehas been in jail for not less than five years provided hefurnishes bail in the sum of Rupees one lakh with twosureties for like amount.

(iv) Where an undertrial accused is charged for the AB

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commission of an offence punishable under Sections 31 and31-A of the Act, such an undertrial shall not be entitled tobe released on bail by virtue of this order.

The directives in clauses (i), (ii) and (iii) above shall besubject to the following general conditions:

(i) The undertrial accused entitled to be released on bailshall deposit his passport with the learned Judge of theSpecial Court concerned and if he does not hold apassport he shall file an affidavit to that effect in theform that may be prescribed by the learned SpecialJudge. 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 thestatement and the Passport Officer shall verify his recordand send a reply within three weeks. If he fails to replywithin the said time, the learned Special Judge will beentitled to act on the statement of the undertrial accused;

(ii) the undertrial accused shall on being released on bailpresent himself at the police station which hasprosecuted him at least once in a month in the case ofthose covered under clause (i), once in a fortnight in thecase of those covered under clause (ii) and once in aweek in the case of those covered by clause (iii), unlessleave of absence is obtained in advance from the SpecialJudge 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 reasonsto be stated in writing, likely to tamper with evidence orinfluence the prosecution witnesses;

(iv) in the case of undertrial accused who are foreigners,the Special Judge shall, besides impounding theirpassports, insist on a certificate of assurance from theEmbassy/High Commission of the country to which theforeigner-accused belongs, that the said accused shallnot leave the country and shall appear before the SpecialCourt as and when required;

(v) the undertrial accused shall not leave the area inrelation to which the Special Court is constituted exceptwith the permission of the learned Special Judge;

(vi) the undertrial accused may furnish bail by depositingcash equal to the bail amount;

(vii) the Special Judge will be at liberty to cancel bail ifany of the above conditions are violated or a case forcancellation of bail is otherwise made out; and

(viii) after the release of the undertrial accused pursuantto this order, the cases of those undertrials who havenot been released and are in jail will be accorded priorityand the Special Court will proceed with them as providedin 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 jailand their trials are delayed. They are not intended to interferewith the Special Court’s power to grant bail under Section 37 ofthe Act. The Special Court will be free to exercise that powerkeeping in view the complaint of inordinate delay in the disposalof the pending cases. The Special Court will, notwithstanding thedirections, be free to cancel bail if the accused is found to bemisusing it and grounds for cancellation of bail exist. Lastly, wegrant liberty to apply in case of any difficulty in the implementationof this order.”

65. We may clarify on one aspect which is on the interpretation ofSection 170 of the Code. Our discussion made for the other offenceswould apply to these cases also. To clarify this position, we may holdthat if an accused is already underincarceration, then the same wouldcontinue, and therefore, it is needless to say that the provision of theSpecial Act would get applied thereafter. It is only in a case where theaccused is either not arrested consciously by the prosecution or arrestedand enlarged on bail, there is no need for further arrest at the instance ofthe court. Similarly, we would also add that the existence of a parimateriaor a similar provision like Section 167(2)of the Code available under theSpecial Act would have the same effect entitling the accused for a defaultbail. Even here the court will have to consider the satisfaction underSection 440 of the Code.

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440SUPREME COURT REPORTS

AECONOMIC 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 classof its own or otherwise. This issue has already been dealt with by thisCourt in the case of P. Chidambaram v. Directorate of Enforcement,(2020) 13 SCC 791, after taking note of the earlier decisions governingthe field. The gravity of the offence, the object of the Special Act, andthe attending circumstances are a few of the factors to be taken note of,along with the period of sentence. After all, an economic offence cannotbe classified as such, as it may involve various activities and may differfrom one case to another. Therefore, it is not advisable on the part of thecourt to categorise all the offences into one group and deny bail on thatbasis. Suffice it to state that law, as laid down in the following judgements,will govern the field:- B

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• P. Chidambaram v. Directorate of Enforcement, (2020) 13SCC 791:

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• P. Chidambaram v. Directorate of Enforcement, (2020) 13SCC 791:

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23. Thus, from cumulative perusal of the judgments cited oneither side including the one rendered by the Constitution Benchof this Court, it could be deduced that the basic jurisprudencerelating to bail remains the same inasmuch as the grant of bailis the rule and refusal is the exception so as to ensure that theaccused has the opportunity of securing fair trial. However,while considering the same the gravity of the offence is anaspect which is required to be kept in view by the Court. Thegravity for the said purpose will have to be gathered from thefacts and circumstances arising in each case. Keeping in viewthe consequences that would befall on the society in cases offinancial irregularities, it has been held that even economicoffences would fall under the category of “grave offence”and in such circumstance while considering the application forbail in such matters, the Court will have to deal with the same,being sensitive to the nature of allegation made against theaccused. One of the circumstances to consider the gravity ofthe offence is also the term of sentence that is prescribed forthe offence the accused is alleged to have committed. Suchconsideration with regard to the gravity of offence is a factor E

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which is in addition to the triple test or the tripod test that wouldbe normally applied. In that regard what is also to be kept inperspective is that even if the allegation is one of graveeconomic offence, it is not a rule that bail should be denied inevery case since there is no such bar created in the relevantenactment passed by the legislature nor does the bailjurisprudence provide so. Therefore, the underlining conclusionis that irrespective of the nature and gravity of charge, theprecedent of another case alone will not be the basis for eithergrant 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 thepresence 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 thecourts have refused the request for grant of bail on two grounds:the primary ground is that the offence alleged against theaccused persons is very serious involving deep-rooted planningin which, huge financial loss is caused to the State exchequer;the secondary ground is that of the possibility of the accusedpersons tampering with the witnesses. In the present case, thecharge is that of cheating and dishonestly inducing delivery ofproperty and forgery for the purpose of cheating using asgenuine a forged document. The punishment for the offence isimprisonment for a term which may extend to seven years. Itis, no doubt, true that the nature of the charge may be relevant,but at the same time, the punishment to which the party maybe liable, if convicted, also bears upon the issue. Therefore, indetermining whether to grant bail, both the seriousness of thecharge and the severity of the punishment should be taken intoconsideration.

40. The grant or refusal to grant bail lies within the discretionof the court. The grant or denial is regulated, to a large extent,by the facts and circumstances of each particular case. But atthe same time, right to bail is not to be denied merely becauseof the sentiments of the community against the accused. Theprimary purposes of bail in a criminal case are to relieve theaccused of imprisonment, to relieve the State of the burden of AB

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keeping him, pending the trial, and at the same time, to keepthe accused constructively in the custody of the court, whetherbefore or after conviction, to assure that he will submit to thejurisdiction of the court and be in attendance thereon wheneverhis presence is required.

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46. We are conscious of the fact that the accused are chargedwith economic offences of huge magnitude. We are alsoconscious of the fact that the offences alleged, if proved, mayjeopardise the economy of the country. At the same time, wecannot lose sight of the fact that the investigating agency hasalready completed investigation and the charge-sheet is alreadyfiled before the Special Judge, CBI, New Delhi. Therefore,their presence in the custody may not be necessary for furtherinvestigation. We are of the view that the appellants are entitledto the grant of bail pending trial on stringent conditions in orderto ally the apprehension expressed by CBI.”

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67. The rate of conviction in criminal cases in India is abysmallylow. It appears to us that this factor weighs on the mind of the CourtEwhile deciding the bail applications in a negative sense. Courts tend tothink that the possibility of a conviction being nearer to rarity, bailapplications will have to be decided strictly, contrary to legal principles.We cannot mix up consideration of a bail application,which is not punitivein nature with that of a possible adjudication by way of trial. On thecontrary, an ultimate acquittal with continued custody would be a caseFof grave injustice.

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68. Criminal courts in general with the trial court in particular arethe guardian angels of liberty. Liberty, as embedded in the Code, has tobe preserved, protected, and enforced by the Criminal Courts. Anyconscious failure by the Criminal Courts would constitute an affront toGliberty. It is the pious duty of the Criminal Court to zealously guard andkeep a consistent vision in safeguarding the constitutional values andethos. A criminal court must uphold the constitutional thrust withresponsibility mandated on them by acting akin to a high priest. ThisCourt in Arnab Manoranjan Goswami v. State of Maharashtra, (2021)2 SCC 427, has observed that:H

“67. Human liberty is a precious constitutional value, which isundoubtedly subject to regulation by validly enacted legislation.As such, the citizen is subject to the edicts of criminal law andprocedure. Section 482 recognises the inherent power of the HighCourt to make such orders as are necessary to give effect to theprovisions of CrPC “or prevent abuse of the process of any courtor otherwise to secure the ends of justice”. Decisions of this Courtrequire the High Courts, in exercising the jurisdiction entrusted tothem under Section 482, to act with circumspection. In emphasisingthat the High Court must exercise this power with a sense ofrestraint, the decisions of this Court are founded on the basicprinciple that the due enforcement of criminal law should not beobstructed by the accused taking recourse to artifices andstrategies. The public interest in ensuring the due investigation ofcrime is protected by ensuring that the inherent power of the HighCourt is exercised with caution. That indeed is one—and asignificant—end of the spectrum. The other end of the spectrumis equally important : the recognition by Section 482 of the powerinhering in the High Court to prevent the abuse of process or tosecure the ends of justice is a valuable safeguard for protectingliberty. The Code of Criminal Procedure, 1898 was enacted by alegislature which was not subject to constitutional rights andlimitations; yet it recognised the inherent power in Section 561-A.Post-Independence, the recognition by Parliament [ Section 482CrPC, 1973] of the inherent power of the High Court must beconstrued as an aid to preserve the constitutional value of liberty.The writ of liberty runs through the fabric of the Constitution. Theneed to ensure the fair investigation of crime is undoubtedlyimportant in itself, because it protects at one level the rights of thevictim and, at a more fundamental level, the societal interest inensuring that crime is investigated and dealt with in accordancewith law. On the other hand, the misuse of the criminal law is amatter of which the High Court and the lower courts in this countrymust be alive.In the present case, the High Court could not buthave been cognizant of the specific ground which was raisedbefore it by the appellant that he was being made a target as apart of a series of occurrences which have been taking placesince April 2020. The specific case of the appellant is that he hasbeen targeted because his opinions on his television channel are ABC

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Aunpalatable to authority. Whether the appellant has established acase for quashing the FIR is something on which the High Courtwill take a final view when the proceedings are listed before it butwe are clearly of the view that in failing to make even a primafacie evaluation of the FIR, the High Court abdicated itsconstitutional duty and function as a protector of liberty. CourtsBmust be alive to the need to safeguard the public interest in ensuringthat the due enforcement of criminal law is not obstructed. Thefair investigation of crime is an aid to it. Equally it is the duty of—courts across the spectrumthe district judiciary, the High Courtsand the Supreme Court—to ensure that the criminal law does notCbecome a weapon for the selective harassment of citizens. Courtsshould be alive to both ends of the spectrum—the need to ensurethe proper enforcement of criminal law on the one hand and theneed, on the other, of ensuring that the law does not become aruse for targeted harassment. Liberty across human eras is astenuous as tenuous can be. Liberty survives by the vigilance ofDher citizens, on the cacophony of the media and in the dustycorridors of courts alive to the rule of (and not by) law. Yet, muchtoo often, liberty is a casualty when one of these components isfound wanting.”

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69. We wish to note the existence of exclusive Acts in the form ofBail Acts prevailing in the United Kingdom and various States ofUSA.These Acts prescribe adequate guidelines both for investigatingagencies and the courts. We shall now take note of Section 4(1) of theBail Act of 1976 pertaining to United Kingdom:F

“General right to bail of accused persons and others.

4.-(l) A person to whom this section applies shall be grantedbailexcept as provided in Schedule 1 to this Act.”

70. Even other than the aforesaid provision, the enactmentdoesGtake into consideration of the principles of law which we have discussedon the presumption of innocence and the grant of bail being a matter ofright.

71. Uniformity and certainty in the decisions of the court are thefoundations of judicial dispensation. Persons accused with same offenseH

shall never be treated differently either by the same court or by thesame or different courts. Such an action though by an exercise ofdiscretion despite being a judicial one would be a grave affront to Articles14 and 15 of the Constitution of India.

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72. The Bail Act of United Kingdom takes into considerationvarious factors. It is an attempt to have a comprehensive law dealingwith bails by following a simple procedure. The Act takes intoconsideration clogging of the prisons with the undertrial prisoners, casesinvolving the issuance of warrants, granting of bail both before and afterconviction, exercise of the power by the investigating agency and thecourt, violation of the bail conditions, execution of bond and sureties onthe unassailable principle of presumption and right to get bail. Exceptionshave been carved out as mentioned in Schedule I dealing with differentcontingencies and factors including the nature and continuity of offence.They also include Special Acts as well. We believe there is a pressingneed for a similar enactment in our country. We do not wish to sayanything beyond the observation made, except to call on the Governmentof India to consider the introduction of an Act specifically meant forgranting 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 acontinuation of the pre-independence one with its modifications.We hopeand trust that the Government of India would look into the suggestionmade in right earnest.

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SUMMARY/CONCLUSION

73. In conclusion, we would like to issue certain directions. Thesedirections are meant for the investigating agencies and also for thecourts.Accordingly,we deem it appropriate to issue the followingdirections, which may be subject to State amendments.:

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a)The Government of India may consider the introduction ofa separate enactment in the nature of a Bail Act so as tostreamline the grant of bails.

b)The investigating agencies and their officers are duty-boundGto comply with the mandate of Section 41 and 41Aof theCode and the directions issued by this Court in ArneshKumar(supra). Any dereliction on their part has to bebrought to the notice of the higher authorities by the courtfollowed by appropriate action.

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Ac)The courts will have to satisfy themselves on the complianceof Section 41 and 41A of the Code. Any non-compliancewould entitle the accused for grant of bail.

d)All the State Governments and the Union Territories aredirected to facilitate standing orders for the procedure toBbe followed under Section 41 and 41Aof the Code whiletaking note of the order of the High Court of Delhi dated07.02.2018 in Writ Petition (C) No. 7608 of 2018 and thestanding order issued by the Delhi Police i.e. Standing OrderNo. 109 of 2020, to comply with the mandate of Section41Aof the Code.C

e)There need not be any insistence of a bail application whileconsidering the application under Section 88, 170, 204 and209 of the Code.

f)There needs to be a strict compliance of the mandate laidDdown in the judgment of this court in Siddharth(supra).

g)The State and Central Governments will have to complywith the directions issued by this Court from time to timewith respect to constitution of special courts. The High Courtin consultation with the State Governments will have toEundertake an exercise on the need for the special courts.The vacancies in the position of Presiding Officers of thespecial courts will have to be filled up expeditiously.

h)The High Courts are directed to undertake the exercise offinding out the undertrial prisoners who are not able toFcomply with the bail conditions. After doing so, appropriateaction will have to be taken in light of Section 440 of theCode, facilitating the release.

i)While insisting upon sureties the mandate of Section 440 ofthe Codehas to be kept in mind.

Gj)An exercise will have to be done in a similar manner tocomply with the mandate of Section 436A of the Code bothat the district judiciary level and the High Court as earlierdirected by this Court in Bhim Singh (supra), followed byappropriate orders.

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k)Bail applications ought to be disposed of within a period oftwo weeks except if the provisions mandate otherwise, withthe exception being an intervening application. Applicationsfor anticipatory bail are expected to be disposed of within aperiod of six weeks with the exception of any interveningapplication.

l)All State Governments, Union Territories and High Courtsare directed to file affidavits/ status reports within a periodof four months.

74. The Registry is directed to send copy of this judgment to theGovernment of India and all the State Governments/Union Territories.

75. As such, M.A. 1849 of 2021 is disposed of in the aforesaidterms. 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 of2021 (I.A.No.154863 of 2021), applications for clarification/direction arealso disposed of.List for compliance after a period of four months fromtoday.

Ankit Gyan

Applications disposed of.

(Assisted by : Roopanshi Virang, LCRA)

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