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Recent Developments In Bail Jurisprudence

Udayan Mukerji
1 Jun 2021 4:23 AM GMT
Recent Developments In Bail Jurisprudence

The egalitarian maxim "Bail, not Jail" enunciated by Justice V. R. Krishna Iyer seemed to have got watered down in the past decades. The number of under trial prisoners in jails kept inexorably increasing over the years. As the graph below would show, more than 18000 under trial prisoners had, as on 31st December 207, been languishing in jails (bereft of either conviction or acquittal) for...

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The egalitarian maxim "Bail, not Jail" enunciated by Justice V. R. Krishna Iyer seemed to have got watered down in the past decades. The number of under trial prisoners in jails kept inexorably increasing over the years. As the graph below would show, more than 18000 under trial prisoners had, as on 31st December 207, been languishing in jails (bereft of either conviction or acquittal) for more than three years.

Thankfully, decisions by the higher judiciary, in the last few years, have tended to reestablish the primacy of the ideal of personal liberty. In this article, we shall study some such recent decisions that have dealt at length with the subject of bail and its importance in our jurisprudence.

Reaffirming Bail not Jail

The Supreme Court in Dataram Singh v State of Uttar Pradesh & Another, (Criminal Appeal No.227 /2018 – judgment delivered on 6th February 2018 firmly and emphatically restored, to its rightful place, the liberal dictum of 'bail, not jail' adumbrated by Justice Iyer. Justice Madan B Lokur stated:

"Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."

Clearly, the words of Justice Lokur strongly remind us of the precept laid down by Justice Iyer that bail and not jail should be the bellwether principle dealing with the law of bail in our country. The sanctity and relevance of bail to a civilized (and civil) society is indubitable. It is not a fashionable cause celebre to be picked up and loudly advocated by 'woke' groups or civil liberties organisations from time to time. Instead, the approach to bail is fundamental in deciphering whether a State and its people have progressed towards truly liberal values or have regressed into some kind of jurisprudential obscurantism.

Default Bail u/s 167 CrPC

The proviso to Section 167(2) of the CrPC postulates:

Provided that,

(a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,

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

(ii) Sixty days, where the investigation relates to any other

offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to an does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter;

[Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.]

In Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 it was categorically laid down, by the Supreme Court, that:

"On the expiry of he said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate."

This "indefeasible right" for default bail if the accused is under custody (police or judicial) and the investigation is not completed within 90 days or 60 days (as the case may be) was forcefully reiterated by the Supreme Court in Bikramjit Singh v State of Punjab (Criminal Appeal No. 667 Of 2020). In his judgment, Justice R. F. Nariman observed:

"Even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused."

"…….right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum."

Justice Nariman also reaffirmed the vision of bail as an aspect of Article 21 of the Constitution of India which prescribed that "No person shall be deprived of his life or personal liberty except according to procedure established by law ……………."

"The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled."

Much the same view was put forth by Justice Mohan M. Shantanagoudar, of the Supreme Court in M. Ravindran v The Intelligence Officer, DRI (Criminal Appeal No. 699 of 2020).

"Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose."

"With respect to the CrPC particularly, the Statement of Objects and Reasons is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21."

Adverting to stratagems employed or events that occur such as to defeat the "indefeasible right" of the accused to default bail under Section 167(2) CrPC, Justice Shantanagoudar observed:

"…………cannot be interpreted so as to mean that even where the accused has promptly exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed."

"The arguments of the State that the expression "availed of" would only mean actual release after furnishing the necessary bail would cause grave injustice to the accused and would defeat the very purpose of the Proviso to Section 167(2), CrPC."

"……… as a cautionary measure, the counsel for the accused as well as the magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge sharing by magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligations spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld."

"……..Public Prosecutors cannot be permitted to misuse the limited notice issued to them by the Court on bail applications filed under Section 167(2) by dragging on proceedings and filing subsequent applications/reports for the purpose of 'buying extra time' and facilitating filling up of lacunae in the investigation by the investigating agency."

Thus, the M. Ravindran Case (supra) also brought into sharp focus the unfortunate practices that the prosecution, in criminal proceedings, often adopts and thereby palters with the law in order, occasionally, to stall the grant of rightful default bail to an accused.

Onerous conditions attached to bail

In their justified concern to ensure that an accused does not jump bail, Courts betimes tend to attach overly burdensome conditions to the bail order; thereby reducing the factum of enlargement of the accused on bail to a near impossibility. This issue was examined in Anil Jindal v State of Haryana (Punjab & Haryana High Court) CRM-M-4525 of 2020 (O&M) with Justice Arun Monga stating:

"Judiciousness qua grant or refusal of bail must be exercised prudently. A conditions for grant of bail, incapable of compliance, renders the bail a complete fantasy………….. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint."

Clubbing near impossible conditions with the bail order would tantamount to denial of bail. It would be like paying lip service to the cause of bail while keeping the relief itself out of bounds for the applicant.

Duration of Anticipatory Bail

Once anticipatory bail is granted by Court (under Section 438 CrPC), how long does it hold? Is the duration curtailed by (a) the registering of an FIR; (b) the filing of a charge sheet; (c) the framing of charges by the Court or (d) the length of the trial?

In Gurbaksh Singh Sibbia v. State of Punjab (1980 SCR (3) 383), a Constitution Bench of the Supreme Court had laid down:

"…the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions."

However, a recent judgment of the Supreme Court in Sushila Aggarwal v State (NCT) of Delhi [Special Leave Petition (Criminal) Nos.72817282/2017], the Sibbia Case (supra) judgment has been dilated upon to convey that:

"Conditions can be imposed by the concerned court while granting prearrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the "anticipatory bail" application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time."

It is a moot point whether the Sushila Aggarwal case (Supra) imparts a modicum of subjectivity to the decision a Court might take in regard to the duration of anticipatory bail. It cannot be gainsaid that when the Court grants anticipatory bail, it does so only upon hearing the Public Prosecutor and hence, arguments for and against the anticipatory bail application would have been duly heard and the material on record (if any) considered by the bail before granting anticipatory bail. Ergo, the accused (or prospective accused) would, at least, at that stage, have met all the conditions that merit grant of bail (subject to such conditions as may appear appropriate o the Court). If such be the case, then it begs the question as to how and what basis the Court can reach any conclusion, at this stage, to the effect that the anticipatory bail would become undeserved or unmerited at a later point in time like the registering of an FIR or the filing of a charge sheet?

Bail upon long incarceration pending trial

Much has been said and written on the subject of undertrial prisoners confined within prison walls without bail, occasionally for years together. This has also featured in the pronouncements, directions and obiter dicta of the judiciary. This disturbing feature of our criminal justice and administration system cropped up, yet again, in Union of India v K. A. Najeeb CRIMINAL APPEAL NO. 98 Of 2021 (SC). Justice Surya Kant remarked:

"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

"Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence."


There can be no denying the fact that any accused who is an obvious menace to society and who is capable of thwarting the delivery of justice may have to be denied bail, by Courts, for the greater good and safety of society. Equally so, in the light of past and recent Supreme Court judgments, it should be clear that denial of bail cannot and should not be used in a pejorative fashion by Courts as that would go against the Constitutional prescriptions pertaining to personal liberty. The possible temptation to deny bail to an accused as some kind of instant punishment for his unproven sins must be scrupulously abjured. Even in cases where statutes like the NDPS Act or the PMLA are invoked, the twin conditions of (a) the accused not appearing to be prima facie guilty and (b) that he shall not commit "any offence" if enlarged on bail, should not be so narrowly construed that incarceration is the inevitable outcome.

Udayan Mukerji (IPS Retd) is a  Senior Partner of Bonum Lex Law Firm.Views are personal.

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