TITLE-: Government starts process to amend IPC, CrPC

INTRODUCTION-: The government has initiated the process of amendment to laws such as Indian
Penal Code, the Code of Criminal Procedure and the Indian Evidence Act in consultation with all
stakeholders, the Rajya Sabha was informed on Wednesday.

AIM-: To make comprehensive changes in criminal laws

PREVIEW-: Mr. Mishra said the department-related Parliamentary Standing Committee on Home
Affairs in its 146th report had recommended that there is a need for a comprehensive review of the
criminal justice system of the country.
Earlier the Parliamentary Standing Committee in its 111th and 128th reports had also stressed upon
the need to reform and rationalise the criminal law of the country by introducing a comprehensive
legislation in Parliament rather than bringing about piecemeal amendments in respective acts.
"With a view to make comprehensive changes in the criminal laws of the country to provide
affordable and speedy justice to all, create a people centric legal structure, the government has
initiated the process for comprehensive amendments to criminal laws such as Indian Penal Code,
1860, the code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 in consultation with
all stakeholders," Mr. Mishra said in a written reply to a question.
The Minister said a committee had been constituted under the chairpersonship of the Vice chancellor
of National Law University, Delhi to suggest reforms in the criminal laws.
"The government is committed to bring out a comprehensive legislation taking into account the
recommendations of the committee and the suggestions received from all the stakeholders," he said.

VIEW-:) SCC 81: “2. Though we issued notice to the State of Bihar two weeks ago, it is unfortunate
that on February 5, 1979, no one has appeared on behalf of the State and we must, therefore, at this
stage proceed on the basis that the allegations contained in the issues of the Indian Express dated
January 8 411 and 9, 1979 which are incorporated in the writ petition are correct. The information
contained in these newspaper cuttings is most distressing and it is sufficient to stir the conscience and
disturb the equanimity of any socially motivated lawyer or judge. Some of the undertrial prisoners
whose names are given in the newspaper cuttings have been in jail for as many as 5, 7 or 9 years and
a few of them, even more than 10 years, without their trial having begun. What faith can these lost
souls have in the judicial system which denies them a bare trial for so many years and keeps them
behind bars, not because they are guilty, but because they are too poor to afford bail and the courts
have no time to try them. It is a travesty of justice that many poor accused, “little Indians, are forced
into long cellular servitude for little offences” because the bail procedure is beyond their meagre
means and trials don't commence and even if they do, they never conclude. There can be little doubt,
after the dynamic interpretation placed by this Court on Article 21 in Maneka Gandhi v. Union of
India [(1978) 2 SCR 621 : (1978) 1 SCC 248] that a procedure which keeps such large numbers of
people behind bars without trial so long cannot possibly be regarded as ‘reasonable, just or fair”’ so
as to be in conformity with the requirement of that article. It is necessary, therefore, that the law as
enacted by the legislature and as administered by the courts must radically change its approach to pre-
trial detention and ensure ‘reasonable, just and fair’ procedure which has creative connotation after
Maneka Gandhi case [(1978) 2 SCR 621 : (1978) 1 SCC 248]. 3. Now, one reason why our legal and
judicial system continually denies justice to the poor by keeping them for long years in pre-trial
detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which
seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against
fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt
the same antiquated approach as the earlier Code enacted towards the end of the last century and
where an accused is to be released on his personal bond, it insists that the bond should contain a
monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the
trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a
matter of course insist that the accused should produce sureties who will stand bail for him and these
sureties must again establish their solvency to be able to pay up the amount of the bail in case the
accused fails to appear to answer the charge. This system of bails operates very harshly against the
poor and it is only the non-poor who are able to take advantage of it by getting themselves released on
bail. The poor find it difficult to furnish bail even without sureties because very often the amount of
the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are
unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and
where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the
poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced
by the police and revenue officials or by touts and professional sureties and sometimes they have
even to incur 422 debts for securing their release or, being unable to obtain release, they have to
remain in jail until such time as the court is able to take up their cases for trial, leading to grave
consequences, namely, (1) though presumed innocent, they are subjected to psychological and
physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their
defence, and (3) they lose their job, if they have one, and are deprived of an opportunity to work to
support themselves and their family members with the result that the burden of their detention almost
invariably falls heavily on the innocent members of the family. It is here that the poor find our legal
and judicial system oppressive and heavily weighted against them and a feeling of frustration and
despair occurs upon them as they find that they are helplessly in a position of inequality with the non-
poor. The Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of
one of us, Mr Justice Bhagwati, emphasised this glaring inequality in the following words: The bail
system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs
drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the
accused into precise monetary terms and even its basic premise that risk of financial loss is necessary
to prevent the accused from fleeing is of doubtful validity. There are several considerations which
deter an accused from running away from justice and risk of financial loss is only one of them and
that too not a major one. The experience of enlightened Bail Projects in the United States such as
Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been
possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover,
the bail system causes discrimination against the poor since the poor would not be able to furnish bail
on account of their poverty while the wealthier persons otherwise similarly situate would be able to
secure their freedom because they can afford to furnish bail. This discrimination arises even if the
amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought
before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a
small amount. The Gujarat Committee also pointed out how the practice of fixing the amount of bail
with reference to the nature of the charge without taking into account relevant factors, such as the
individual financial circumstances of the accused and the probability of his fleeing before trial, is
harsh and oppressive and discriminates against the poor: The discriminatory nature of the bail system
becomes all the more acute by reason of the mechanical way in which it is customarily operated. It is
no doubt true that theoretically the Magistrate has broad discretion in fixing the amount of bail but in
practice it seems that the amount of bail depends almost always on the seriousness of the offence. It is
fixed according to a schedule related to the nature of the charge. Little weight is given either to the
probability that the accused will attempt to flee before his trial or to his individual financial
circumstances, the very factors which seem most relevant if 433 the purpose of bail is to assure the
appearance of the accused at the trial. The result of ignoring these factors and fixing the amount of
bail mechanically having regard only to the seriousness of the offence is to discriminate against the
poor who are not in the same position as the rich as regards capacity to furnish bail. The courts by
ignoring the differential capacity of the rich and the poor to furnish bail and treating them equally
produce inequality between the rich and the poor: the rich who is charged with the same offence in
the same circumstances is able to secure his release while the poor is unable to do so on account of
his poverty. These are some of the major defects in the bail system as it is operated today. The same
anguish was expressed by President Lyndon B. Johnson at the time of signing the Bail Reforms Act,
1966: Today, we join to recognise a major development in our system of criminal justice: the reform
of the bail system. This system has endured—archaic, unjust and virtually unexamined —since the
Judiciary Act of 1789. The principal purpose of bail is to insure that an accused person will return for
trial if he is released after arrest. How is that purpose met under the present system? The defendant
with means can afford to pay bail. He can afford to buy his freedom. But poorer defendant cannot pay
the price. He languishes in jail weeks, months and perhaps even years before trial. He does not stay in
jail because he is guilty. He does not stay in jail because any sentence has been passed. He does not
stay in jail because he is any more likely to flee before trial. He stays in jail for one reason only—
because he is poor.... The bail system, as it operates today, is a source of great hardship to the poor
and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to the
poor in the administration of justice, it is imperative that the bail system should be thoroughly
reformed so that it should be possible for the poor, as easily as the rich, to obtain pre-trial release
without jeopardising the interest of justice. 4. It is high time that our Parliament realises that risk of
monetary loss is not the only deterrent against fleeing from justice, but there are also other factors
which act as equal deterrents against fleeing. Ours is a socialist republic with social justice as the
signature tune of our Constitution and Parliament would do well to consider whether it would not be
more consonant with the ethos of our Constitution that instead of risk of financial loss, other relevant
considerations such as family ties, roots in the community, job security, membership of stable
organisations etc., should be the determinative factors in grant of bail and the accused should in
appropriate cases be released on his personal bond without monetary 444 obligation. Of course, it
may be necessary in such a case to provide by an amendment of the penal law that if the accused
wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be
liable to penal action. But even under the law as it stands today the courts must abandon the
antiquated concept under which pre-trial release is ordered only against bail with sureties. That
concept is outdated and experience has shown that it has done more harm than good. The new insight
into the subject of pre-trial release which has been developed in socially advanced countries and
particularly the United States should now inform the decisions of our courts in regard to pre-trial
release. If the Court is satisfied, after taking into account, on the basis of information placed before it,
that the accused has his roots in the community and is not likely to abscond, it can safely release the
accused on his personal bond. To determine whether the accused has his roots in the community
which would deter him from fleeing, the Court should take into account the following factors
concerning the accused: 1. The length of his residence in the community, 2. his employment status,
history and his financial condition, 3. his family ties and relationships, 4. his reputation, character and
monetary condition, 5. his prior criminal record including any record of prior release on recognizance
or on bail, 6. the identity of responsible members of the community who would vouch for his
reliability, 7. the nature of the offence charged and the apparent probability of conviction and the
likely sentence insofar as these factors are relevant to the risk of non-appearance, and 8. any other
factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to
appear. If the court is satisfied on a consideration of the relevant factors that the accused has his ties
in the community and there is no substantial risk of non-appearance, the accused may, as far as
possible, be released on his personal bond. Of course, if facts are brought to the notice of the court
which go to show that having regard to the condition and background of the accused, his previous
record and the nature and circumstances of the offence, there may be a substantial risk of his non-
appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed
criminal or the offence is serious (these examples are only by way of illustration), the Court may not
release the accused on his personal bond and may insist on bail with sureties. But in the majority of
cases, considerations like family ties and relationship, roots in the community, employment status etc.
may prevail with the Court in releasing the accused on his personal bond and particularly in cases
where the offence is not grave and the accused is poor or belongs to a weaker section of the
community, release on personal bond could, as far as possible, be preferred. But even while releasing
the accused on personal bond it is necessary to 454 caution the Court that the amount of the bond
which it fixes should not be based merely on the nature of the charge. The decision as regards the
amount of the bond should be an individualised decision depending on the individual financial
circumstances of the accused and the probability of his absconding. The amount of the bond should
be determined having regard to these relevant factors and should not be fixed mechanically according
to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to
secure his release even by executing a personal bond. Moreover, when the accused is released on his
personal bond, it would be very harsh and oppressive if he is required to satisfy the Court—and what
we have said here in regard to the court must apply equally in relation to the police while granting
bail—that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in
consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source
of great harassment to him and often result in denial of bail and deprivation of liberty and should not,
therefore, be insisted upon as a condition of acceptance of the personal bond. We have no doubt that
if the system of bail, even under the existing law, is administered in the manner we have indicated in
this judgment, it would go a long way towards relieving hardship of the poor and help them to secure
pre-trial release from incarceration. It is for this reason we have directed the undertrial prisoners
whose names are given in the two issues of the Indian Express should be released forthwith on their
personal bond. We should have ordinarily said that personal bond to be executed by them should be
with monetary obligation but we directed as an exceptional measure that there need be no monetary
obligation in the personal bond because we found that all these persons have been in jail without trial
for several years, and in some cases for offences for which the punishment would in all probability be
less than the period of their detention and, moreover, the order we were making was merely an
interim order. The peculiar facts and circumstances of the case dictated such an unusual course. 5.
There is also one other infirmity of the legal and judicial system which is responsible for this gross
denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is a
sad reflection on the legal and judicial system that the trial of an accused should not even commence
for a long number of years. Even a delay of one year in the commencement of the trial is bad enough:
how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is
of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes
denial of justice. It is interesting to note that in the United States, speedy trial is one of the
constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that: In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. So also Article 3
of the European Convention on Human Rights provides that: 465 Every one arrested or detained . . .
shall be entitled to trial within a reasonable time or to release pending trial. We think that even under
our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is
implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi
v. Union of India [(1978) 2 SCR 621 : (1978) 1 SCC 248]. We have held in that case that Article 21
confers a fundamental right on every person not to be deprived of his life or liberty except in
accordance with the procedure prescribed by law and it is not enough to constitute compliance with
the requirement of that article that some semblance of a procedure should be prescribed by law, but
that the procedure should be “reasonable, fair and just”. If a person is deprived of his liberty under a
procedure which is not “reasonable, fair or just”, such deprivation would be violative of his
fundamental right under Article 21, and he would be entitled to enforce such fundamental right and
secure his release. Now obviously procedure prescribed by law for depriving a person of liberty
cannot be ‘reasonable, fair or just’ unless that procedure ensures a speedy trial for determination of
the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded
as ‘reasonable, fair or just’ and it would fall foul of Article 21. There can, therefore, be no doubt that
speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part
of the fundamental right to life and liberty enshrined in Article 21. The question which would,
however, arise is as to what would be the consequence if a person accused of an offence is denied
speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long-delayed
trial in violation of his fundamental right under Article 21. Would he be entitled to be released
unconditionally freed from the charge levelled against him on the ground that trying him after an
unduly long period of time and convicting him after such trial would constitute violation of his
fundamental right under Article 21. That is a question we shall have to consider when we hear the
writ petition on merits on the adjourned date. But one thing is certain, and we cannot impress it too
strongly on the State Government that it is high time that the State Government realized its
responsibility to the people in the matter of administration of justice and set up more courts for the
trial of cases. We may point out that it would not be enough merely to establish more courts but the
State Government would also have to man them by competent Judges and whatever is necessary for
the purpose of recruiting competent Judges, such as improving their conditions of service, would have
to be done by the State Government, if they want to improve the system of administration of justice
and make it an effective instrument for reaching justice to the large masses of people for whom
justice is today a meaningless and empty word.”  Hussain & Anr. vs. Union of India & Ors., 2017
(5) SCC 702: “28. Judicial service as well as legal service are not like any other services. They are
missions for serving the society. The mission is not achieved if the litigant who is waiting in the
queue does not get his turn for a long time. 476 The Chief Justices and Chief Ministers have resolved
that all cases must be disposed of within five years which by any standard is quite a long time for a
case to be decided in the first court. Decision of cases of undertrials in custody is one of the priority
areas. There are obstructions at every level in enforcement of right of speedy trial—vested interests or
unscrupulous elements try to delay the proceedings. Lack of infrastructure is another handicap. In
spite of all odds, determined efforts are required at every level for success of the mission. Ways and
means have to be found out by constant thinking and monitoring. The Presiding Officer of a court
cannot rest in a state of helplessness. This is the constitutional responsibility of the State to provide
necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to
ensure timely disposal of cases. The first step in this direction is preparation of an appropriate action
plan at the level of the High Court and thereafter at the level of each and every individual judicial
officer. Implementation of the action plan will require serious efforts and constant monitoring. 29. To
sum up: 29.1. The High Courts may issue directions to subordinate courts that— 29.1.1. Bail
applications be disposed of normally within one week; 29.1.2. Magisterial trials, where accused are in
custody, be normally concluded within six months and sessions trials where accused are in custody be
normally concluded within two years; 29.1.3. Efforts be made to dispose of all cases which are five
years old by the end of the year; 29.1.4. As a supplement to Section 436-A, but consistent with the
spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be
awarded if conviction is recorded such undertrial must be released on personal bond. Such an
assessment must be made by the trial courts concerned from time to time; 29.1.5. The above timelines
may be the touchstone for assessment of judicial performance in annual confidential reports. 29.2.
The High Courts are requested to ensure that bail applications filed before them are decided as far as
possible within one month and criminal appeals where accused are in custody for more than five
years are concluded at the earliest; 29.3. The High Courts may prepare, issue and monitor appropriate
action plans for the subordinate courts; 29.4. The High Courts may monitor steps for speedy
investigation and trials on administrative and judicial side from time to time; 29.5. The High Courts
may take such stringent measures as may be found necessary in the light of judgment of this Court in
Harish Uppal [Harish Uppal v. Union of India, (2003) 2 SCC 45]. 487 30. Accordingly, we request
the Chief Justices of all the High Courts to forthwith take appropriate steps consistent with the
directions of this Court in Hussainara Khatoon [Hussainara Khatoon (7) v. State of Bihar, (1995) 5
SCC 326 : 1995 SCC (Cri) 913], Akhtari Bi [Akhtari Bi v. State of M.P., (2001) 4 SCC 355 : 2001
SCC (Cri) 714], Noor Mohammed [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2
SCC (Crv) 754], Thana Singh [Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590 :
(2013) 2 SCC (Cri) 818], Supreme Court Legal Aid Committee [Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995
SCC (Cri) 39], Imtiaz Ahmad [Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC 688 : (2012) 1 SCC
(Cri) 986], [Imtiyaz Ahmad v. State of U.P., (2017) 3 SCC 658 : (2017) 3 SCC 665 : (2017) 2 SCC
(Civ) 311 : (2017) 2 SCC (Civ) 318 : (2017) 2 SCC (Cri) 228 : (2017) 2 SCC (Cri) 235 : (2017) 1
SCC (L&S) 724 : (2017) 1 SCC (L&S) 731], Harish Uppal [Harish Uppal v. Union of India, (2003) 2
SCC 45] and Resolution of Chief Justices' Conference and observations hereinabove and to have
appropriate monitoring mechanism in place on the administrative side as well as on the judicial side
for speeding up disposal of cases of undertrials pending in subordinate courts and appeals pending in
the High Courts.”  Surinder Singh @ Shingara Singh vs State Of Punjab, 2005 (7) SCC 387: “8. It is
no doubt true that this Court has repeatedly emphasised the fact that speedy trial is a fundamental
right implicit in the broad sweep and content of Article 21 of the Constitution. The aforesaid article
confers a fundamental right on every person not to be deprived of his life or liberty except in
accordance with the procedure prescribed by law. If a person is deprived of his liberty under a
procedure which is not reasonable, fair, or just, such deprivation would be violative of his
fundamental right under Article 21 of the Constitution. It has also been emphasised by this Court that
the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It
is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period
of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a
jolt. These are observations made in several decisions of this Court dealing with the subject of speedy
trial. In this case, we are concerned with the case where a person has been found guilty of an offence
punishable under Section 302 IPC and who has been sentenced to imprisonment for life. The Code of
Criminal Procedure affords a right of appeal to such a convict. The difficulty arises when the appeal
preferred by such a convict cannot be disposed of within a reasonable time. In Kashmira Singh v.
State of Punjab [(1977) 4 SCC 291 : 1977 SCC (Cri) 559] this Court dealt with such a case. It is
observed: (SCC pp. 292-93, para 2) “The practice not to release on bail a person who has been
sentenced to life imprisonment was evolved in the High Courts and in this Court 497 on the basis that
once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so
long as his conviction and sentence are not set aside, but the underlying postulate of this practice was
that the appeal of such person would be disposed of within a measurable distance of time, so that if he
is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The
rationale of this practice can have no application where the Court is not in a position to dispose of the
appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a
period of five or six years for an offence which is ultimately found not to have been committed by
him. Can the Court ever compensate him for his incarceration which is found to be unjustified?
Would it be just at all for the Court to tell a person: ‘We have admitted your appeal because we think
you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few
years and, therefore, until we hear your appeal, you must remain in jail, even though you may be
innocent?’ What confidence would such administration of justice inspire in the mind of the public? It
may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person
may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge
not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the
appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such
a person who has already served out his term of imprisonment or at any rate a major part of it? It is,
therefore, absolutely essential that the practice which this Court has been following in the past must
be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a
reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting
otherwise, release the accused on bail in cases where special leave has been granted to the accused to
appeal against his conviction and sentence.” 9. Similar observations are found in some of the other
decisions of this Court which have been brought to our notice. But, however, it is significant to note
that all these decisions only lay down broad guidelines which the courts must bear in mind while
dealing with an application for grant of bail to an appellant before the court. None of the decisions lay
down any invariable rule for grant of bail on completion of a specified period of detention in custody.
Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any
invariable rule or evolve a straitjacket formula. The court must exercise its discretion having regard to
all the relevant facts and circumstances. What the relevant facts and circumstances are, which the
court must keep in mind, has been laid down over the years by the courts in this country in a large
number of decisions which are well known. It is, therefore, futile to attempt to lay down any
invariable rule or formula in such matters. 508 10. The counsel for the parties submitted before us that
though it has been so understood by the courts in Punjab, the decision of the Punjab and Haryana
High Court in Dharam Pal case [(2000) 1 Chan LR 74] only lays down guidelines and not any
invariable rule. Unfortunately, the decision has been misunderstood by the Court in view of the
manner in which the principles have been couched in the aforesaid judgment. After considering the
various decisions of this Court and the difficulties faced by the courts, the High Court in Dharam Pal
case [(2000) 1 Chan LR 74] observed: (Chan LR p. 87, para 18) “We, therefore, direct that life
convicts, who have undergone at least five years of imprisonment of which at least three years should
be after conviction, should be released on bail pending the hearing of their appeals should they make
an application for this purpose. We are also of the opinion that the same principles ought to apply to
those convicted by the courts martial and such prisoners should also be entitled to release after
seeking a suspension of their sentences. We further direct that the period of five years would be
reduced to four for females and minors, with at least two years imprisonment after conviction. We,
however, clarify that these directions shall not be applicable in cases where the very grant of bail is
forbidden by law.” Section 389 of the Code “389. Suspension of sentence pending the appeal; release
of appellant on bail.—(1) Pending any appeal by a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the sentence or order appealed
against be suspended and, also, if he is in confinement, that he be released on bail, or on his own
bond. Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted
person who is convicted of an offence punishable with death or imprisonment for life or
imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for
showing cause in writing against such release: Provided further that in cases where a convicted person
is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of
the bail. (2) The power conferred by this section on an Appellate Court may be exercised also by the
High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where
the convicted person satisfies the Court by which he is convicted that he intends to present an appeal,
the Court shall, — (i) where such person, being on bail, is sentenced to imprisonment for a term not
exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable
one, and he is on bail, order that the convicted person be released on bail, unless there are special
reasons for refusing bail, for 51 such period as will afford sufficient time to present the appeal and
obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment
shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is
ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he
is so released shall be excluded in computing the term for which he is so sentenced.” 42.Section 389
of the Code concerns itself with circumstances pending appeal leading to the release of the appellant
on bail. The power exercisable under Section 389 is different from that of the one either under
Section 437 or under Section 439 of the Code, pending trial. This is for the reason that “presumption
of innocence” and “bail is the rule and jail is the exception” may not be available to the appellant who
has suffered a conviction. A mere pendency of an appeal per se would not be a factor. 43. A
suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication.
Though delay in taking up the main appeal would certainly be a factor and the benefit available under
Section 436A would also be considered, the Courts will have to see the relevant factors including the
conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be
taken up and disposed of, then the delay would certainly be a factor in favour of the appellant.
44.Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit
conferred under Section 436A of the Code among other factors ought to be considered for a
favourable release on bail. 529 Precedents:  Atul Tripathi vs State of U.P. & Anr., 2014 (9) SCC
177: “13. It may be seen that there is a marked difference between the procedure for consideration of
bail under Section 439, which is pre-conviction stage and Section 389 CrPC, which is post-conviction
stage. In case of Section 439, the Code provides that only notice to the public prosecutor unless
impractical be given before granting bail to a person who is accused of an offence which is triable
exclusively by the Court of Sessions or where the punishment for the offence is imprisonment for life;
whereas in the case of post-conviction bail under Section 389 CrPC, where the conviction in respect
of a serious offence having punishment with death or life imprisonment or imprisonment for a term
not less than ten years, it is mandatory that the appellate court gives an opportunity to the public
prosecutor for showing cause in writing against such release. 14. …in case the appellate court is
inclined to consider the release of the convict on bail, the public prosecutor shall be granted an
opportunity to show cause in writing as to why the Appellant be not released on bail. Such a stringent
provision is introduced only to ensure that the court is apprised of all the relevant factors so that the
court may consider whether it is an appropriate case for release having regard to the manner in which
the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on
public confidence in the justice-delivery system, etc. Despite such an opportunity being granted to the
Public Prosecutor, in case no cause is shown in writing, the appellate court shall record that the State
has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure
that there is no allegation of collusion and to ensure that the court is properly assisted by the State
with true and correct facts with regard to the relevant considerations for grant of bail in respect of
serious offences, at the post-conviction stage.”  Angana v. State of Rajasthan, (2009) 3 SCC 767:
“14. When an appeal is preferred against conviction in the High Court, the Court has ample power
and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending
on the facts and circumstances of each case. While considering the suspension of sentence, each case
is to be considered on the basis of nature of the offence, manner in which occurrence had taken place,
whether in any manner bail granted earlier had been misused. In fact, there is no straitjacket formula
which can be applied in exercising the discretion. The facts and circumstances of each case will
govern the exercise of judicial discretion while considering the 53 application filed by the convict
under Section 389 of the Criminal Procedure Code.”  Sunil Kumar v. Vipin Kumar (2014) 8 SCC
868: “13. We have heard the rival legal contentions raised by both the parties. We are of the opinion
that the High Court has rightly applied its discretionary power under Section 389 CrPC to enlarge the
respondents on bail. Firstly, both the criminal appeal and criminal revision filed by both the parties
are pending before the High Court which means that the convictions of the respondents are not
confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been
granted bail earlier and they did not misuse the liberty. Also, the respondents had conceded to the
occurrence of the incident though with a different version. 14. We are of the opinion that the High
Court has taken into consideration all the relevant facts including the fact that the chance of the
appeal being heard in the near future is extremely remote, hence, the High Court has released the
respondents on bail on the basis of sound legal reasoning. We do not wish to interfere with the
decision of the High Court at this stage. The appeal is dismissed accordingly.” 45. However, we
hasten to add that if the court is inclined to release the appellant on bail, it has to be predicated on his
own bond as facilitated by Sub-section (1). Section 436A of the Code 436A. Maximum period for
which an undertrial prisoner can be detained.— Where a person has, during the period of
investigation, inquiry or trial under this Code of an offence under any law (not being an offence for
which the punishment of death has been specified as one of the punishments under that law)
undergone detention for a period extending up to one-half of the maximum period of imprisonment
specified for that offence under that law, he shall be released by the Court on his personal bond with
or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons
to be recorded by it in writing, order the continued detention of such person for a period longer than
one-half of the said period or release him on bail instead of the personal bond with or without
sureties: Provided further that no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of imprisonment provided for the
said offence under that law. 5411 Explanation.—In computing the period of detention under this
section for granting bail, the period of detention passed due to delay in proceeding caused by the
accused shall be excluded. 46.Section 436A of the Code has been inserted by Act 25 of 2005. This
provision has got a laudable object behind it, particularly from the point of view of granting bail. This
provision draws the maximum period for which an undertrial prisoner can be detained. This period
has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We
have already explained that the word ‘trial’ will have to be given an expanded meaning particularly
when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time,
to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and
so also for the revision. 47.Under this provision, when a person has undergone detention for a period
extending to one-half of the maximum period of imprisonment specified for that offense, he shall be
released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes
the mandatory compliance of this provision. We do feel that there is not even a need for a bail
application in a case of this nature particularly when the reasons for delay are not attributable against
the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to
be heard, and the court, if it is of the view that there is a need for continued detention longer than one-
half 5511 of the said period, has to do so. However, such an exercise of power is expected to be
undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that
‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of
innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty,
being the core intendment of Article 21. The only caveat as furnished under the Explanation being the
delay in the proceeding caused on account of the accused to be excluded. This court in Bhim Singh v.
Union of India, (2015) 13 SCC 605, while dealing with the aforesaid provision, has directed that: “5.
Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and
large number of undertrial prisoners housed in the prisons, we are of the considered view that some
order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in
prison beyond the maximum period provided under Section 436-A. 6. We, accordingly, direct that
jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in
each jail/prison for two months commencing from 1-10-2014 for the purposes of effective
implementation of Section 436-A of the Code of Criminal Procedure. In its sittings in jail, the above
judicial officers shall identify the undertrial prisoners who have completed half period of the
maximum period or maximum period of imprisonment provided for the said offence under the law
and after complying with the procedure prescribed under Section 436-A pass an appropriate order in
jail itself for release of such undertrial prisoners who fulfil the requirement of Section 436-A for their
release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall
submit the report of each of such sittings to the Registrar General of the High Court and at the end of
two months, the Registrar General of each High Court shall submit the report to the Secretary General
of this Court without any delay. To facilitate compliance with the above order, we direct the Jail
Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the
above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court,
who in turn will communicate the copy of the order to all Sessions Judges within his State for
necessary compliance.” 5612 48.The aforesaid directions issued by this Court if not complied fully,
are expected to be complied with in order to prevent the unnecessary incarceration of undertrials, and
to uphold the inviolable principle of presumption of innocence until proven guilty. Section 437 of the
Code “437. When bail may be taken in case of non-bailable offence.—1 [(1) When any person
accused of, or suspected of, the commission of any nonbailable offence is arrested or detained without
warrant by an officer in charge of a police station or appears or is brought before a Court other than
the High Court or Court of session, he may be released on bail, but— (i) such person shall not be so
released if there appear reasonable grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life; (ii) such person shall not be so released if such
offence is a cognizable offence and he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more, or he had been previously
convicted on two or more occasions of a cognizable offence punishable with imprisonment for three
years or more but not less than seven years: Provided that the Court may direct that a person referred
to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a
woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in
clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special
reason: Provided also that the mere fact that an accused person may be required for being identified
by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is
otherwise entitled to be released on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court:] Provided also that no person shall, if the offence alleged to
have been committed by him is punishable with death, imprisonment for life, or imprisonment for
seven years or more, be released on bail by the Court under this sub-section without giving an
opportunity of hearing to the Public Prosecutor. (2) If it appears to such officer or Court at any stage
of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for
believing that the accused has committed a non-bailable offence, but that there are sufficient grounds
for further inquiry into his guilt, the accused 5712 shall, subject to the provisions of section 446A and
pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a
person accused or suspected of the commission of an offence punishable with imprisonment which
may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII
of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such
offence, is released on bail under sub-section (1), the Court shall impose the conditions,— (a) that
such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected, and (c) that such person shall not directly or
indirectly make any inducement, threat or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with
the evidence, and may also impose, in the interests of justice, such other conditions as it considers
necessary.] (4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section
(2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has
released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so
to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a
Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period
of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in
custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate,
unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time, after
the conclusion of the trial of a person accused of a non-bailable offence and before judgment is
delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is
not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him
of a bond without sureties for his appearance to hear judgment delivered.” 49.Seeking to impeach
Warren Hastings for his activities during the colonial period, Sir Edmund Burke made the following
famous statement in “The 58 World’s Famous Orations” authored by Bryan, William Jennings,
published by New York: Funk and Wagnalls Company, 1906: “Law and arbitrary power are in eternal
enmity. Name me a magistrate, and I will name property; name me power, and I will name protection.
It is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any
man can have arbitrary power. In every patent of office the duty is included. For what else does a
magistrate exist? To suppose for power is an absurdity in idea. Judges are guided and governed by the
eternal laws of justice, to which we are all subject. We may bite our chains, if we will, but we shall be
made to know ourselves, and be taught that man is born to be governed by law; and he that will
substitute will in the place of it is an enemy to God.” 50.Section 437 of the Code is a provision
dealing with bail in case of nonbailable offenses by a court other than the High Court or a Court of
Sessions. Here again, bail is the rule but the exception would come when the court is satisfied that
there are reasonable grounds that the accused has been guilty of the offense punishable either with
death or imprisonment for life. Similarly, if the said person is previously convicted of an offense
punishable with death or imprisonment for life or imprisonment for seven years or more or convicted
previously on two or more occasions, the accused shall not be released on bail by the magistrate.
51.Proviso to Section 437 of the Code mandates that when the accused is under the age of sixteen
years, sick or infirm or being a woman, is something which is required to be taken note of. Obviously,
the court has to satisfy itself that the accused person is sick or infirm. In a case pertaining to women,
the court is expected to show some sensitivity. We have already taken note of the fact 5913 that many
women who commit cognizable offenses are poor and illiterate. In many cases, upon being young
they have children to take care of, and there are many instances when the children are to live in
prisons. The statistics would show that more than 1000 children are living in prisons along with their
mothers. This is an aspect that the courts are expected to take note of as it would not only involve the
interest of the accused, but also the children who are not expected to get exposed to the prisons. There
is a grave danger of their being inherited not only with poverty but with crime as well. 52.The power
of a court is quite enormous while exercising the power under Section 437. Apart from the general
principle which we have discussed, the court is also empowered to grant bail on special reasons. The
said power has to be exercised keeping in view the mandate of Section 41 and 41A of the Code as
well. If there is a proper exercise of power either by the investigating agencies or by the court, the
majority of the problem of the undertrials would be taken care of. 53.The proviso to Section 437
warrants an opportunity to be afforded to the learned Public Prosecutor while considering an offense
punishable with death, imprisonment for life, or imprisonment for seven years or more. Though, this
proviso appears to be contrary to the main provision contained in Section 437(1) which, by way of a
positive direction, prohibits the Magistrate from releasing a person guilty of an offense punishable
with either 6014 death or imprisonment for life. It is trite that a proviso has to be understood in the
teeth of the main provision. Section 437(1)(i) operates in a different field. The object is to exclude the
offense exclusively triable by the Court of Sessions. Thus, one has to understand the proviso by a
combined reading of Sections 437 and 439 of the Code, as the latter provision reiterates the aforesaid
provision to the exclusion of the learned Magistrate over an offense triable exclusively by a Court of
Sessions. To make the position clear, if the Magistrate has got the jurisdiction to try an offense for
which the maximum punishment is either life or death, when such jurisdiction is conferred on the
learned Magistrate, it goes without saying that the power to release the accused on bail for the offense
alleged also can be exercised. This Court in Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280
has held: “7. Powers of the Magistrate, while dealing with the applications for grant of bail, are
regulated by the punishment prescribed for the offence in which the bail is sought. Generally
speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is
exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the
matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing
the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the
application is distinguishable from the exercise of the jurisdiction.” 54. We wish to place reliance on
the judgment of the Bombay High Court in The Balasaheb Satbhai Merchant Coop Bank Ltd. vs. The
State of Maharashtra and Ors., 2011 SCC OnLine Bom 1261: “13. At this stage, it may be useful to
quote the observations of this Court in "Ambarish Rangshhi Patnigere v. State of Maharashtra"
referred supra, which reads thus - 6114 “17. It may be noted here that the learned Counsel for
intervener contended that the Magistrate did not have jurisdiction to grant bail because the offences
under Sections 467 and 409 IPC, carry punishment which may be life imprisonment. According to the
learned Counsel, if the offence is punishable with sentence of death or life imprisonment, the
Magistrate cannot grant bail under Section 437(1) Cr.P.C., unless there are special grounds mentioned
therein. He relied upon certain authorities in this respect including Prahlad Sigh Bhati v. NCT, Delhi
and Anr. JT 2001 (4) SCC 280. In that case, offence was under Section 302 which is punishable with
death sentence or life imprisonment and is exclusively triable by Court of Sessions. The offence
under Section 409 is punishable with imprisonment for life or imprisonment for 10 years and fine.
Similarly, the office under Section 467 is also punishable with imprisonment for life or imprisonment
for 10 years and fine. Even though the maximum sentence which may be awarded is life
imprisonment, as per Part I of Schedule annexed to Cr.P.C., both these offences are triable by a
Magistrate of First Class. It appears that there are several offences including under sec. 326 in the
Penal Code, 1860 wherein sentence, which may be awarded, is imprisonment for life or imprisonment
for lesser terms and such offences are triable by Magistrate of the First Class. If the Magistrate is
empowered to try the case and pass judgment and order of conviction or acquittal, it is difficult to
understand why he cannot pass order granting bail, which is interlocutory in nature, in such cases. In
fact, the restriction under Section 437(1) Cr.P.C. is in respect of those offences which are punishable
with alternative sentence of death or life imprisonment. If the offence is punishable with life
imprisonment or any other lesser sentence and is triable by Magistrate, it cannot be said that
Magistrate does not have jurisdiction to consider the bail application. In taking this view, I am
supported by the old Judgment of Nagpur Judicial Commissioner's Court in Tularam and Ors. v.
Emperor 27 Cri.L.J. 1926 page 1063 and also by the Judgment of the Kerala High Court in Satyan v.
State 1981 Cr.L.J. 1313. In Satyan, the Kerala High Court considered several earlier judgments and
observed thus in paras 7 and 8:- “7. According to the learned Magistrate Section 437(1) does not
empower him to release a person on bail if there are reasonable grounds for believing that he has
committed an offence punishable with death or an offence punishable with imprisonment for life. In
other words the learned Magistrate has interpreted the expression "offence punishable with death or
imprisonment for life" in Section 437(1) to include all offences where the punishment extends to
imprisonment for life. This reasoning, no doubt, is seen adopted in an old Rangoon Case H.M.
Boudville v. Emperor, AIR 1925 129 : (1925) 26 Cri LJ 427 while interpreting the phrase "an offence
punishable with death or transportation for life" in 6215 Section 497 Cr.P.C. 1898. But that case was
dissented from in Mahammed Eusoof v. Emperor, AIR 1926 Rang 51 : (1926) 27 Cri LJ 401). The
Rangoon High Court held that the prohibition against granting bail is confined to cases where the
sentence is either death or alternative transportation for life. In other words, what the Court held was
that the phrase "death or transportation for life" in Section 497 of the old Code did not extend to
offences punishable with transportation for life only, it will be interesting to note the following
passage from the above judgment: "It is difficult to see what principle, other than pure empiricism
should distinguish offences punishable with transportation for life from offences punishable with long
terms of imprisonment; why, for instance, the detenu accused of lurking house trespass with a view to
commit theft, for which the punishment is fourteen years imprisonment, should be specially favoured
as against the individual who has dishonestly received stolen property, knowing that it was obtained
by dacoity, for which the punishment happens to be transportation for life? It cannot seriously be
argued that the comparatively slight difference in decree of possible punishment will render it morally
less likely that the person arrested will put in an appearance in the one case rather than the other. On
the other hand the degree of difference is so great as between transportation for life and death as to be
immeasurable. A prudent Legislature will, therefore, withdraw from the discretion of the Magistracy
cases in which, if guilt is probable, even a man of the greatest fortitude may be wiling to pay a
material price, however, exorbitant, for life." The above decision has been followed by the Nagpur
High Court in the case reported in Tularam v. Emperor, (AIR 1927 Nag 53) : (1926) 27 Cri LJ 1063).
"8. The reasoning applies with equal force in interpreting the phrase "offence punishable with death
or imprisonment for life" So long as an offence under section 326 is triable by a Magistrate of the
First Class there is no reason why it should be viewed differently in the matter of granting bail from
an offence under Section 420 I.P.C. for which the punishment extends imprisonment for 7 years or
any other non-bailable offence for which the punishment is a term of imprisonment." 6315 It would
be illogical and incomprehensible to say that the magistrate who can hold the trial and pass judgment
of acquittal or conviction for the offences punishable with sentence of life imprisonment or lesser
term of imprisonment, for example in offences under S. 326, 409, 467, etc., cannot consider the
application for bail in such offences. In fact, it appears that the restriction under Section 437(1) (a) is
applicable only to those cases which are punishable with death sentence or life imprisonment as
alternative sentence. It may be noted that in Prahlad Sigh Bhati (supra), in para 6, the Supreme Court
held that even though there is no legal bar for a Magistrate to consider an application for grant of bail
to a person who is arrested for an offence exclusively triable by a Court of session, yet it would be
proper and appropriate that in such a case the Magistrate directs the accused person to approach the
Court of Session for the purposes of getting the relief of bail. This may be applicable to many cases,
wherein the sentence, which may be awarded, is not even life imprisonment, but the offence is
exclusively triable by court of Sessions for example offences punishable under Sections 306, 308,
314, 315, 316, 399, 400 and 450. Taking into consideration the legal position, I do not find any
substance in the contention of Mr. Bhatt, learned Counsel for the intervener that merely because the
offence is under Section 409 and 467 IPC, Magistrate did not have jurisdiction to hear and grant the
bail. 14. It may also be useful to refer the observations of this Court in Ishan Vasant Deshmukh v.
State of Maharashtra” referred supra, which read thus— “The observations of the Supreme Court that
generally speaking if the punishment prescribed is that of imprisonment for life or death penalty, and
the offence is exclusively triable by the Court of Sessions, the Magistrate has no jurisdiction to grant
bail, unless the matter is covered by the provisos attached to section 437 of the Code. Thus, merely
because an offence is punishable when imprisonment for life, it does not follow a Magistrate would
have no jurisdiction to grant bail, unless offence is also exclusively triable by the Court of Sessions.
This, implies that the Magistrate would be entitled to grant bail in cases triable by him even though
punishment prescribed may extend to imprisonment for life. This Judgment in Prahlad Singh Bhati's
case had not been cited before Judge, who decided State of Maharashtra v. Rajkumar Kunda Swami.
Had this Judgment been noticed by the Hon'ble Judge deciding that case, the observation that the
Magistrate may not decide an application for bail if the offence is punishable with imprisonment for
life would possibly would not have been made. In view of the observations of the Supreme Court in
Prahlad Singh Bhati's case, it is clear that the view taken by J.H. Bhatia, J. in Ambarish Rangshahi
Patnigere v. State of Maharashtra, reported at 2010 ALL MR (Cri) 2775 is in tune with the Judgment
of the 64 Supreme Court and therefore, the Magistrate would have jurisdiction to grant bail.” 55.Thus,
we would like to reiterate the aforesaid position so that the jurisdictional Magistrate who otherwise
has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or
death sentence, has got ample jurisdiction to consider the release on bail. Section 439 of the Code
“439. Special powers of High Court or Court of Session regarding bail. — (1) A High Court or Court
of Session may direct— (a) that any person accused of an offence and in custody be released on bail,
and if the offence is of the nature specified in sub-section (3) of section 437, may impose any
condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any
condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the Court of Session or which, though not so
triable, is punishable with imprisonment for life, give notice of the application for bail to the Public
Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to
give such notice. xxx xxx xxx (2) A High Court or Court of Session may direct that any person who
has been released on bail under this Chapter be arrested and commit him to custody.” 56.Section 439
confers a power upon the High Court or a Court of Sessions regarding the bail. This power is to be
exercised against the order of the judicial magistrate exercising power under Section 437 of the Code
or in a 6517 case triable by the Court of Sessions exclusively. In the former set of cases, the
observations made by us would apply to the exercise of power under Section 439 as well.
57.Interestingly, the second proviso to Section 439 prescribes for the notice of an application to be
served on the public prosecutor within a time limit of 15 days on the set of offenses mentioned
thereunder. Similarly, proviso to subsection (1)(a) makes it obligatory to give notice of the
application for bail to the public prosecutor as well as the informant or any other person authorised by
him at the time of hearing the application for bail. This being the mandate of the legislation, the High
Court and the Court of Sessions shall see to it that it is being complied with. 58.Section 437 of the
Code empowers the Magistrate to deal with all the offenses while considering an application for bail
with the exception of an offense punishable either with life imprisonment or death triable exclusively
by the Court of Sessions. The first proviso facilitates a court to conditionally release on bail an
accused if he is under the age of 16 years or is a woman or is sick or infirm, as discussed earlier. This
being a welfare legislation, though introduced by way of a proviso, has to be applied while
considering release on bail either by the Court of Sessions or the High Court, as the case may be. The
power under Section 439 of the Code is exercised against an order rejecting an application for bail
and against an offence exclusively decided by 6617 the Court of Sessions. There cannot be a divided
application of proviso to Section 437, while exercising the power under Section 439. While dealing
with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the
intendment is the role required to be played by the court. We do not wish to state that this proviso has
to be considered favourably in all cases as the application depends upon the facts and circumstances
contained therein. What is required is the consideration per se by the court of this proviso among
other factors. Section 440 of the Code “440. Amount of bond and reduction thereof.—(1) The amount
of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the
case and shall not be excessive. (2) The High Court or Court of Session may direct that the bail
required by a police officer or Magistrate be reduced.” 59.Before we deal with the objective behind
Section 440, certain precedents and laws adopted in the United States of America are required to be
taken note of. 60.In the State of Illinois, a conscious decision was taken to dispense with the
requirement of cost as a predominant factor in the execution of a warrant while granting bail, as such
a condition is an affront to liberty, and thus, affects the fundamental rights of an arrestee. If an
individual is not able to comply with the condition due to the circumstances beyond his control, and
thus making it impossible for him to enjoy the fruits of the bail granted, it certainly constitutes an act
of injustice. The objective behind granting of bail 6717 is different from the conditions imposed. The
State of Illinois took note of the fact that a prisoner cannot be made to comply with the deposit of
cash as a pre-condition for enlargement, and therefore dispensed with the same. 61.When such an
onerous condition was challenged on the premise that it affects a category of persons who do not have
the financial wherewithal, making them to continue in incarceration despite a temporary relief being
granted, enabling them to conduct the trial as free persons, the Supreme Court of California in In re
Kenneth Humphrey, S247278; 482 P.3d 1008 (2021), was pleased to hold that the very objective is
lost and would possibly impair the preparation of a defense, as such, the court was of the view that
such onerous conditions cannot be sustained in the eye of law. Relevant paras of the judgment are
reproduced hereunder: IV. ….In choosing between pretrial release and detention, we recognize that
absolute certainty — particularly at the pretrial stage, when the trial meant to adjudicate guilt or
innocence is yet to occur — will prove all but impossible. A court making these determinations
should focus instead on risks to public or victim safety or to the integrity of the judicial process that
are reasonably likely to occur. (See Stack v. Boyle (1951) 342 U.S. 1, 8 (conc. opn. of Jackson, J.)
[“Admission to bail always involves a risk that the accused will take flight. That is a calculated risk
which the law takes as the price of our system of justice”]; cf. Salerno, supra, 481 U.S. at p. 751
[discussing an arrestee’s “identified and articulable threat to an individual or the community”].) Even
when a bail determination complies with the above prerequisites, the court must still consider whether
the deprivation of liberty caused by an order of pretrial detention is consistent with state statutory and
constitutional law specifically addressing bail — a question not resolved here7 — and with due
process. While due process does not categorically prohibit the government from ordering pretrial
detention, it remains true that 6818 “[i]n our society liberty is the norm, and detention prior to trial or
without trial is the carefully limited exception.” (Salerno, supra, 481 U.S. at p. 755.) V. In a crucially
important respect, California law is in line with the federal Constitution: “liberty is the norm, and
detention prior to trial or without trial is the carefully limited exception.” (Salerno, supra, 481 U.S. at
p. 755.) An arrestee may not be held in custody pending trial unless the court has made an
individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless
failed to pay, the amount of bail the court finds reasonably necessary to protect compelling
government interests; or (2) detention is necessary to protect victim or public safety, or ensure the
defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative
will reasonably vindicate those interests. (See Humphrey, supra, 19 Cal.App.5th at p. 1026.) Pretrial
detention on victim and public safety grounds, subject to specific and reliable constitutional
constraints, is a key element of our criminal justice system. Conditioning such detention on the
arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions
or whether the state’s interests could be met by less restrictive alternatives, is not.” 62.Under Section
440 the amount of every bond executed under Chapter XXXIII is to be fixed with regard to the
circumstances of the case and shall not be excessive. This is a salutary provision which has to be kept
in mind. The conditions imposed shall not be mechanical and uniform in all cases. It is a mandatory
duty of the court to take into consideration the circumstances of the case and satisfy itself that it is not
excessive. Imposing a condition which is impossible of compliance would be defeating the very
object of the release. In this connection, we would only say that Section 436, 437, 438 and 439 of the
Code are to be read in consonance. Reasonableness of the bond and surety is something which the
court has to keep in mind whenever the same is insisted upon, and therefore while exercising the
power under Section 88 of the Code also the said factum has to be kept in mind. This Court in 6918
Hussainara Khatoon & Ors v Home Secretary, State of Bihar, 1980 (1) SCC 81, has held that: “8. In
regard to the exercise of the judicial power to release a prisoner awaiting trial on bail or on the
execution of a personal bond without sureties for his appearance, I have to say this briefly. There is an
amplitude of power in this regard within the existing provisions of the Code of Criminal Procedure,
and it is for the courts to fully acquaint themselves with the nature and extent of their discretion in
exercising it. I think it is no longer possible to countenance a mechanical exercise of the power. What
should be the amount of security required or the monetary obligation demanded in a bond is a matter
calling for the careful consideration of several factors. The entire object being only to ensure that the
undertrial does not flee or hide himself from trial, all the relevant considerations which enter into the
determination of that question must be taken into account. [ Section 440, Cr.P.C.] A synoptic
impression of what the considerations could be may be drawn from the following provision in the
United States Bail Reform Act of 1966 : In determining which conditions of releases will reasonably
assure appearance, the judicial officer shall, on the basis of available information, take into account
the nature and circumstances of the offence charged, the weight of the evidence against the accused,
the accused's family ties, employment, financial resources, character and mental condition, the length
of his residence in the community, his record of convictions, and his record of appearance at court
proceedings or of flight to avoid prosecution or failure to appear at court proceedings. [18 US S.
3146(b)] These are considerations which should be kept in mind when determining the amount of the
security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing system
of pre-trial release in India could be avoided or, in any event, greatly reduced. See Moti Ram v. State
of M.P. [(1978) 4 SCC 47]” CATEGORIES A & B 63.We have already dealt with the relevant
provisions which would take care of categories A and B. At the cost of repetition, we wish to state
that, in category A, one would expect a better exercise of discretion on the part of the court in favour
of the accused. Coming to category B, these cases will have to be dealt 7019 with on a case-to-case
basis again keeping in view the general principle of law and the provisions, as discussed by us. 7119
SPECIAL ACTS (CATEGORY C) 64.Now we shall come to category (C). We do not wish to deal
with individual enactments as each special Act has got an objective behind it, followed by the rigor
imposed. The general principle governing delay would apply to these categories also. To make it
clear, the provision contained in Section 436A of the Code would apply to the Special Acts also in the
absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS
Act would not come in the way in such a case as we are dealing with the liberty of a person. We do
feel that more the rigor, the quicker the adjudication ought to be. After all, in these types of cases
number of witnesses would be very less and there may not be any justification for prolonging the
trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and
also a stricter compliance of Section 309 of the Code. Precedents  Union of India v. K.A. Najeeb,
(2021) 3 SCC 713: “15. This Court has clarified in numerous judgments that the liberty guaranteed by
Part III of the Constitution would cover within its protective ambit not only due procedure and
fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri)
39], it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought
to suffer adverse consequences of his acts unless the same is established before a neutral arbiter.
However, owing to the practicalities of real life where to secure an effective trial and to ameliorate
the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with
deciding whether an individual ought to be released pending trial or not. 72 Once it is obvious that a
timely trial would not be possible and the accused has suffered incarceration for a significant period
of time, the courts would ordinarily be obligated to enlarge them on bail.”  Supreme Court Legal Aid
Committee v. Union of India (1994) 6 SCC 731: “15. …In substance the petitioner now prays that all
undertrials who are in jail for the commission of any offence or offences under the Act for a period
exceeding two years on account of the delay in the disposal of cases lodged against them should be
forthwith released from jail declaring their further detention to be illegal and void and pending
decision of this Court on the said larger issue, they should in any case be released on bail. It is indeed
true and that is obvious from the plain language of Section 36(1) of the Act, that the legislature
contemplated the creation of Special Courts to speed up the trial of those prosecuted for the
commission of any offence under the Act. It is equally true that similar is the objective of Section 309
of the Code. It is also true that this Court has emphasised in a series of decisions that Articles 14, 19
and 21 sustain and nourish each other and any law depriving a person of “personal liberty” must
prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial.
See Hussainara Khatoon (IV) v. Home Secy., State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40],
Raghubir Singh v. State of Bihar [(1986) 4 SCC 481 : 1986 SCC (Cri) 511] and Kadra Pahadiya v.
State of Bihar [(1983) 2 SCC 104 : 1983 SCC (Cri) 361] to quote only a few. This is also the avowed
objective of Section 36(1) of the Act. However, this laudable objective got frustrated when the State
Government delayed the constitution of sufficient number of Special Courts in Greater Bombay; the
process of constituting the first two Special Courts started with the issuance of notifications under
Section 36(1) on 4-1-1991 and under Section 36(2) on 6-4-1991 almost two years from 29-5-1989
when Amendment Act 2 of 1989 became effective. Since the number of courts constituted to try
offences under the Act were not sufficient and the appointments of Judges to man these courts were
delayed, cases piled up and the provision in regard to enlargement on bail being strict the offenders
have had to languish in jails for want of trials. As stated earlier Section 37 of the Act makes every
offence punishable under the Act cognizable and non-bailable and provides that no person accused of
an offence punishable for a term of five years or more shall be released on bail unless (i) the Public
Prosecutor has had an opportunity to oppose bail and (ii) if opposed, the court is satisfied that there
are reasonable grounds for believing that he is not guilty of the offence and is not likely to indulge in
similar activity. On account of the strict language of the said provision very few persons accused of
certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial
of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of
the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of
the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to
be satisfied 7320 before a person accused of an offence under the Act can be released. Indeed, we
have adverted to this section in the earlier part of the judgment. We have also kept in mind the
interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench
in Kartar Singh v. State of Punjab [(1994) 3 SCC 569 : 1994 SCC (Cri) 899]. Despite this provision,
we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require
in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this
Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93], release on bail, which
can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article
21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and
setting free the accused whose trials have been delayed beyond reasonable time for reasons already
alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would
also not be in consonance with the right guaranteed by Article 21. Of course, some amount of
deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation
pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is
because of this that we have felt that after the accused persons have suffered imprisonment which is
half of the maximum punishment provided for the offence, any further deprivation of personal liberty
would be violative of the fundamental right visualised by Article 21, which has to be telescoped with
the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in
procedural matters. What then is the remedy? The offences under the Act are grave and, therefore, we
are not inclined to agree with the submission of the learned counsel for the petitioner that we should
quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable
time. Alternatively, he contended that such accused persons whose trials have been delayed beyond
reasonable time and are likely to be further delayed should be released on bail on such terms as this
Court considers appropriate to impose. This suggestion commends to us. We were told by the learned
counsel for the State of Maharashtra that additional Special Courts have since been constituted but
having regard to the large pendency of such cases in the State we are afraid this is not likely to make a
significant dent in the huge pile of such cases. We, therefore, direct as under: (i) Where the undertrial
is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or
less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not
less than half the punishment provided for the offence with which he is charged and where he is
charged with more than one offence, the offence providing the highest punishment. If the offence
with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said
amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the
satisfaction of the Special Judge concerned with two sureties for like amount. 7421 (ii) Where the
undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding
five years and fine, such an undertrial shall be released on bail on the term set out in (i) above
provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like
amount. (iii) Where the undertrial accused is charged with an offence(s) under the Act punishable
with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial
shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in
the sum of Rupees one lakh with two sureties for like amount. (iv) Where an undertrial accused is
charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an
undertrial shall not be entitled to be released on bail by virtue of this order. The directives in clauses
(i), (ii) and (iii) above shall be subject to the following general conditions: (i) The undertrial accused
entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court
concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that
may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he
has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify
the statement and the Passport Officer shall verify his record and send a reply within three weeks. If
he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement
of the undertrial accused; (ii) the undertrial accused shall on being released on bail present himself at
the police station which has prosecuted him at least once in a month in the case of those covered
under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week
in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the
Special Judge concerned; (iii) the benefit of the direction in clauses (ii) and (iii) shall not be available
to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated
in writing, likely to tamper with evidence or influence the prosecution witnesses; (iv) in the case of
undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports,
insist on a certificate of assurance from the Embassy/High 7522 Commission of the country to which
the foreigner-accused belongs, that the said accused shall not leave the country and shall appear
before the Special Court as and when required; (v) the undertrial accused shall not leave the area in
relation to which the Special Court is constituted except with the permission of the learned Special
Judge; (vi) the undertrial accused may furnish bail by depositing cash equal to the bail amount; (vii)
the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case
for cancellation of bail is otherwise made out; and (viii) after the release of the undertrial accused
pursuant to this order, the cases of those undertrials who have not been released and are in jail will be
accorded priority and the Special Court will proceed with them as provided in Section 309 of the
Code. 16. We may state that the above are intended to operate as one-time directions for cases in
which the accused persons are in jail and their trials are delayed. They are not intended to interfere
with the Special Court's power to grant bail under Section 37 of the Act. The Special Court will be
free to exercise that power keeping in view the complaint of inordinate delay in the disposal of the
pending cases. The Special Court will, notwithstanding the directions, be free to cancel bail if the
accused is found to be misusing it and grounds for cancellation of bail exist. Lastly, we grant liberty
to apply in case of any difficulty in the implementation of this order.” 65.We may clarify on one
aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other
offences would apply to these cases also. To clarify this position, we may hold that if an accused is
already under incarceration, then the same would continue, and therefore, it is needless to say that the
provision of the Special Act would get applied thereafter. It is only in a case where the accused is
either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need
for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari
materia or a similar provision like Section 76 167(2) of the Code available under the Special Act
would have the same effect entitling the accused for a default bail. Even here the court will have to
consider the satisfaction under Section 440 of the Code. ECONOMIC OFFENSES (CATEGORY D)
66.What is left for us now to discuss are the economic offences. The question for consideration is
whether it should be treated as a class of its own or otherwise. This issue has already been dealt with
by this Court in the case of P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after
taking note of the earlier decisions governing the field. The gravity of the offence, the object of the
Special Act, and the attending circumstances are a few of the factors to be taken note of, along with
the period of sentence. After all, an economic offence cannot be classified as such, as it may involve
various activities and may differ from one case to another. Therefore, it is not advisable on the part of
the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state
that law, as laid down in the following judgements, will govern the field:- Precedents  P.
Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791: 23. Thus, from cumulative perusal
of the judgments cited on either side including the one rendered by the Constitution Bench of this
Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as
the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the
opportunity of securing fair trial. However, while considering the same the gravity of the offence is
an aspect which is 7723 required to be kept in view by the Court. The gravity for the said purpose will
have to be gathered from the facts and circumstances arising in each case. Keeping in view the
consequences that would befall on the society in cases of financial irregularities, it has been held that
even economic offences would fall under the category of “grave offence” and in such circumstance
while considering the application for bail in such matters, the Court will have to deal with the same,
being sensitive to the nature of allegation made against the accused. One of the circumstances to
consider the gravity of the offence is also the term of sentence that is prescribed for the offence the
accused is alleged to have committed. Such consideration with regard to the gravity of offence is a
factor which is in addition to the triple test or the tripod test that would be normally applied. In that
regard what is also to be kept in perspective is that even if the allegation is one of grave economic
offence, it is not a rule that bail should be denied in every case since there is no such bar created in
the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore,
the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of
another case alone will not be the basis for either grant or refusal of bail though it may have a bearing
on principle. But ultimately the consideration will have to be on case-to-case basis on the facts
involved therein and securing the presence of the accused to stand trial.  Sanjay Chandra v. CBI
(2012) 1 SCC 40: “39. Coming back to the facts of the present case, both the courts have refused the
request for grant of bail on two grounds: the primary ground is that the offence alleged against the
accused persons is very serious involving deep-rooted planning in which, huge financial loss is
caused to the State exchequer; the secondary ground is that of the possibility of the accused persons
tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly
inducing delivery of property and forgery for the purpose of cheating using as genuine a forged
document. The punishment for the offence is imprisonment for a term which may extend to seven
years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the
punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in
determining whether to grant bail, both the seriousness of the charge and the severity of the
punishment should be taken into consideration. 40. The grant or refusal to grant bail lies within the
discretion of the court. The grant or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same time, right to bail is not to be denied merely
because of the sentiments of the community against the accused. The primary purposes of bail in a
criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping
him, pending the trial, and at the same time, to keep the accused constructively in the custody of the
court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court
and be in attendance thereon whenever his presence is required. 7824 xxx xxx xxx 46. We are
conscious of the fact that the accused are charged with economic offences of huge magnitude. We are
also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the
country. At the same time, we cannot lose sight of the fact that the investigating agency has already
completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New
Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are
of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in
order to ally the apprehension expressed by CBI.” ROLE OF THE COURT 67.The rate of conviction
in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the
Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility
of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to
legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature
with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with
continued custody would be a case of grave injustice. 68.Criminal courts in general with the trial
court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be
preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal
Courts would constitute an affront to liberty. It is the pious duty of the Criminal Court to zealously
guard and keep a consistent vision in safeguarding the constitutional values and ethos. A criminal
court must 79 uphold the constitutional thrust with responsibility mandated on them by acting akin to
a high priest. This Court in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427,
has observed that: “67. Human liberty is a precious constitutional value, which is undoubtedly subject
to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law
and procedure. Section 482 recognises the inherent power of the High Court to make such orders as
are necessary to give effect to the provisions of CrPC “or prevent abuse of the process of any court or
otherwise to secure the ends of justice”. Decisions of this Court require the High Courts, in exercising
the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that
the High Court must exercise this power with a sense of restraint, the decisions of this Court are
founded on the basic principle that the due enforcement of criminal law should not be obstructed by
the accused taking recourse to artifices and strategies. The public interest in ensuring the due
investigation of crime is protected by ensuring that the inherent power of the High Court is exercised
with caution. That indeed is one—and a significant—end of the spectrum. The other end of the
spectrum is equally important : the recognition by Section 482 of the power inhering in the High
Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for
protecting liberty. The Code of Criminal Procedure, 1898 was enacted by a legislature which was not
subject to constitutional rights and limitations; yet it recognised the inherent power in Section 561-A.
PostIndependence, the recognition by Parliament [ Section 482 CrPC, 1973] of the inherent power of
the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of
liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is
undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more
fundamental level, the societal interest in ensuring that crime is investigated and dealt with in
accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High
Court and the lower courts in this country must be alive. In the present case, the High Court could not
but have been cognizant of the specific ground which was raised before it by the appellant that he was
being made a target as a part of a series of occurrences which have been taking place since April
2020. The specific case of the appellant is that he has been targeted because his opinions on his
television channel are unpalatable to authority. Whether the appellant has established a case for
quashing the FIR is something on which the High Court will take a final view when the proceedings
are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation
of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty.
Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement
of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty
of courts across the spectrum—the district judiciary, the High Courts and the 80 Supreme Court—to
ensure that the criminal law does not become a weapon for the selective harassment of citizens.
Courts should be alive to both ends of the spectrum—the need to ensure the proper enforcement of
criminal law on the one hand and the need, on the other, of ensuring that the law does not become a
ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty
survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of
courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of
these components is found wanting.” (emphasis supplied) 69.We wish to note the existence of
exclusive Acts in the form of Bail Acts prevailing in the United Kingdom and various States of USA.
These Acts prescribe adequate guidelines both for investigating agencies and the courts. We shall
now take note of Section 4(1) of the Bail Act of 1976 pertaining to United Kingdom: “General right
to bail of accused persons and others. 4.-(l) A person to whom this section applies shall be granted
bail except as provided in Schedule 1 to this Act.” 70. Even other than the aforesaid provision, the
enactment does take into consideration of the principles of law which we have discussed on the
presumption of innocence and the grant of bail being a matter of right. 71.Uniformity and certainty in
the decisions of the court are the foundations of judicial dispensation. Persons accused with same
offense shall never be treated differently either by the same court or by the same or different courts.
Such an action though by an exercise of discretion despite being a judicial 81 one would be a grave
affront to Articles 14 and 15 of the Constitution of India. 72.The Bail Act of United Kingdom takes
into consideration various factors. It is an attempt to have a comprehensive law dealing with bails by
following a simple procedure. The Act takes into consideration clogging of the prisons with the
undertrial prisoners, cases involving the issuance of warrants, granting of bail both before and after
conviction, exercise of the power by the investigating agency and the court, violation of the bail
conditions, execution of bond and sureties on the unassailable principle of presumption and right to
get bail. Exceptions have been carved out as mentioned in Schedule I dealing with different
contingencies and factors including the nature and continuity of offence. They also include Special
Acts as well. We believe there is a pressing need for a similar enactment in our country. We do not
wish to say anything beyond the observation made, except to call on the Government of India to
consider the introduction of an Act specifically meant for granting of bail as done in various other
countries like the United Kingdom. Our belief is also for the reason that the Code as it exists today is
a continuation of the preindependence one with its modifications. We hope and trust that the
Government of India would look into the suggestion made in right earnest.
SUMMARY/CONCLUSION 82 73.In conclusion, we would like to issue certain directions. These
directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it
appropriate to issue the following directions, which may be subject to State amendments.: a) The
Government of India may consider the introduction of a separate enactment in the nature of a Bail Act
so as to streamline the grant of bails. b) The investigating agencies and their officers are duty-bound
to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this
Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the
higher authorities by the court followed by appropriate action. c) The courts will have to satisfy
themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle
the accused for grant of bail. d) All the State Governments and the Union Territories are directed to
facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code
while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No.
7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020,
to comply with the mandate of Section 41A of the Code. e) There need not be any insistence of a bail
application while considering the application under Section 88, 170, 204 and 209 of the Code. 83 f)
There needs to be a strict compliance of the mandate laid down in the judgment of this court in
Siddharth (supra). g) The State and Central Governments will have to comply with the directions
issued by this Court from time to time with respect to constitution of special courts. The High Court
in consultation with the State Governments will have to undertake an exercise on the need for the
special courts. The vacancies in the position of Presiding Officers of the special courts will have to be
filled up expeditiously. h) The High Courts are directed to undertake the exercise of finding out the
undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate
action will have to be taken in light of Section 440 of the Code, facilitating the release. i) While
insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind. j) An exercise
will have to be done in a similar manner to comply with the mandate of Section 436A of the
Code both at the district judiciary level and the High Court as earlier directed by this Court in
Bhim Singh (supra), followed by appropriate orders. k) Bail applications ought to be
disposed of within a period of two weeks except if the provisions mandate otherwise, with
the exception being an intervening application. Applications for anticipatory bail are
expected to be disposed of within a period of six weeks with the exception of any intervening
application. l) All State Governments, Union Territories and High Courts are directed to file
affidavits/ status reports within a period of four months. 84 74.The Registry is directed to
send copy of this judgment to the Government of India and all the State Governments/Union
Territories. 75.As such, M.A. 1849 of 2021 is disposed of in the aforesaid terms. I.A.
No.51315 of 2022, application for intervention is allowed. I.A. Nos. 164761 of 2021, 148421
of 2021 and M.A. Diary No.29164 of 2021 (I.A.No.154863 of 2021), applications for
clarification/direction are also disposed of. List for compliance after a period of four months
from today.