High Courts & Trial Courts Have Forgotten That Bail Is Not To Be Withheld As A Punishment: Supreme Court

Sending an important message to the Courts across the country, the Supreme Court recently lamented that the High Courts and Trial Courts have forgotten that bail cannot be denied as a punishment.

"Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment," observed a bench comprising Justices JB Pardiwala and Ujjal Bhuyan.

The bench was deciding an appeal for bail field by a man booked under the Unlawful Activities Prevention Act over alleged smuggling of counterfeit currency from Pakistan. While allowing bail to him considering his incarceration for four year and the fact that the trial has not even commenced, the bench highlighted that howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

The bench noted three striking things - (1) the appellant had been incarcerated as an undertrial for 4 years while his co-accused have gotten bail; (2) charges have not been framed by Trial Court and (3) the prosecution intends to examine 80 witnesses. 

Bail Not To Be Withheld As A Punishment 

Considering the facts of the above case, the bench reiterated the need for the Trial Courts and High Courts not to dilute the essence of speedy trial and personal liberty when deciding issues of bail. It has observed that refusal to grant bail cannot be a punishment mechanism irrespective of the seriousness of the alleged offence.

The Court further placed reliance on the decision of Gudikanti Narasimhulu & Ors. v. Public Prosecutor (1978) 1 SCC 240. which observed that the object of apprehending a person as undertrial is ensuring speedy trial and effective disposal of cases. 

“What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

Reference was made to the recent judgment in Mohd. Muslim v. State (NCT of Delhi) 2023 LiveLaw (SC) 260 which held that bail can be granted if there is undue delay in trial regardless of the stringent provisions of special statutes like NDPS Act. The judgment in Union of India vs. K.A. Najeeb (2021), which held that UAPA does not bar constitutional courts from granting bail on the ground of long delay in the trial was also relied upon.

The Court further added that it should not be forgotten that an undertrial or the appellant (in the present case) is still an accused and not been convicted yet. Thus, the Courts below should not conveniently overlook the principle of innocent until proven guilty.  

"We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be."

State Cannot Object To Bail Plea If It Does Not Intend To Protect Accused's Right To Speedy Trial

Taking serious objection to the delay in trial and prolonged incarceration of the accused, the Court held that if state of prosecuting agency including courts does not make the effort to uphold the fundamental right to speedy trial of the accused, then the State is not entitled to oppose the bail by citing the seriousness of the offence.

The Court expressed that Article 21 of the Constitution applied irrespective of the nature of the crime and is not conditional on the gravity of the offence. 

"If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."  

The appeal was allowed by the bench while observing the infringement of Article 21 by the manner in which the prosecuting agency and the Court have approached the present case.

Case Details :  JAVED GULAM NABI SHAIKH Versus THE STATE OF MAHARASHTRA AND ANR | SLP(Crl) No. 3809/2024 

Citation : 2024 LiveLaw (SC) 437 

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