Indian Law Research

Satender Kumar Antil v. Central Bureau of Investigation

Decision date:

Court
Supreme Court of India
Decision date
11 July 2022
Citation / docket
(2022) 10 SCC 51
Source length
85 PDF pages
Review status
AI-assisted draft; not reviewed by a lawyer
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Draft summary

Written with AI assistance from the source judgment. Not reviewed by a lawyer. Historical decision summary, independently checked by an AI reviewer; not a current-law certification.

In one sentence

The Court issued directions to enforce arrest safeguards, improve bail practice and address unnecessary undertrial detention.

Question decided

What directions should guide investigating agencies and courts on arrest, summons, bail and undertrial detention?

Key holdings

Outcome

The miscellaneous application and connected requests were disposed of with directions, circulation requirements and a further compliance listing.

Source PDF pages: 83, 84, 85.

Plain-English explanation

Satender Kumar Antil examines how arrest and bail practice can cause unnecessary detention. The corrected July 2022 judgment discusses different categories of offences and procedural situations rather than prescribing automatic bail in every case. Its final directions require investigating agencies to comply with statutory arrest safeguards and require courts to examine that compliance. It also addresses situations in which an accused who was not arrested during investigation appears before the court, and directs adherence to the earlier decision in Siddharth. Beyond individual applications, the Court calls for attention to undertrial prisoners who cannot satisfy bail conditions, the operation of section 436A, and the availability of special courts. It states expected periods for deciding ordinary and anticipatory bail applications, with qualifications. These are directions about legal process; they are not a guarantee of release in any particular prosecution. Special statutes, the alleged offence, the procedural stage and the accused's conduct still matter. This draft uses the corrected judgment and describes its historical CrPC framework. Later compliance orders and changes under the BNSS need to be checked before presenting it as current procedural guidance.

Relevant law in the judgment

Separate opinions

The downloaded source is explicitly marked CORRECTED and is signed by Sanjay Kishan Kaul and M.M. Sundresh JJ.

Research notes and limits

Read subsequent compliance orders and applicable BNSS provisions. Do not describe the suggested Bail Act as an enacted law or the offence categories as unconditional release rules.

Source and extraction notes

Unchanged source PDF · Source website

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Judgment — source material

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CORRECTED
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO.1849 OF 2021 
IN
SPECIAL LEA VE PETITION (CRL.) NO.5191 OF 2021
SATENDER KUMAR ANTIL ... APPELLANT
VERSUS
CENTRAL BUREAU OF INVESTIGATION 
& ANR. ... RESPONDENTS
WITH
MISCELLANEOUS APPLICATION DIARY NO.29164 OF 2021
IN
SPECIAL LEA VE PETITION (CRL.) NO.5191 OF 2021
J U D G M E N T
M. M. SUNDRESH, J.
“Liberty is one of the most essential requirements of the modern man. It is
said  to  be  the  delicate  fruit  of  a  mature  civilization.  It  is  the  very
quintessence of civilized existence and essential requirement of a modern
man”
 - John E.E.D. in "Essays on Freedom and Power"
1

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1. Taking note of the continuous supply of cases seeking bail after filing of the
final report on a wrong interpretation of Section 170 of the Code of Criminal
Procedure (hereinafter referred to as “the Code” for short), an endeavour was
made  by  this  Court  to  categorize  the  types  of  offenses  to  be  used  as
guidelines for the future. Assistance was sought from Shri Sidharth Luthra,
learned senior counsel, and learned Additional Solicitor General Shri S.V .
Raju. After allowing the application for intervention, an appropriate Order
was passed on 07.10.2021.  The same is reproduced as under:
“We  have  been  provided  assistance  both  by  Mr.  S.V .  Raju,  learned
Additional  Solicitor  General  and  Mr.  Sidharth  Luthra,  learned  senior
counsel and there is broad unanimity in terms of the suggestions made by
learned  ASG.  In  terms  of  the  suggestions,  the  offences  have  been
categorized and guidelines are sought to be laid down for grant of bail,
without fettering the discretion of the courts concerned and keeping in mind
the statutory provisions. 
We are inclined to accept the guidelines and make them a part of the order
of the Court for the benefit of the Courts below. The guidelines are as
under: 
Categories/Types of Offences 
A) Offences punishable with imprisonment of 7 years or less not falling in
category B & D. 
B) Offences punishable with death, imprisonment for life, or imprisonment
for more than 7 years.
 C) Offences punishable under Special Acts containing stringent provisions
for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act,
212(6), etc. 
D) Economic offences not covered by Special Acts. 
REQUISITE CONDITIONS 
1) Not arrested during investigation. 
2) Cooperated throughout in the investigation including appearing before
Investigating Officer whenever called. 
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(No need to forward such an accused along with the chargesheet (Siddharth
Vs. State of UP, 2021 SCC online SC 615) 
CATEGORY A
After filing of chargesheet/complaint taking of cognizance 
a) Ordinary summons at the 1st instance/including permitting appearance
through Lawyer. 
b) If such an accused does not appear despite service of summons, then
Bailable Warrant for physical appearance may be issued. 
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons
without insisting physical appearance of accused, if such an application is
moved  on  behalf  of  the  accused  before  execution  of  the  NBW on  an
undertaking  of  the  accused  to  appear  physically  on  the  next  date/s  of
hearing. 
e) Bail applications of such accused on appearance may be decided w/o the
accused being taken in physical custody or by granting interim bail till the
bail application is decided.
CATEGORY B/D
On appearance of the accused in Court pursuant to process issued bail
application to be decided on merits. 
CATEGORY C
Same as Category B & D with the additional condition of compliance of the
provisions of Bail under NDPS S.37, 45 PMLA, 212(6) Companies Act 43
d(5) of UAPA, POSCO etc.”
Needless  to  say  that  the  category  A deals  with  both  police  cases  and
complaint cases.
The  trial  Courts  and  the  High  Courts  will  keep  in  mind  the  aforesaid
guidelines while considering bail applications. The caveat which has been
put by learned ASG is that where the accused have not cooperated in the
investigation nor appeared before the Investigating Officers, nor answered
summons  when  the  Court  feels  that  judicial  custody  of  the  accused  is
necessary  for  the  completion  of  the  trial,  where  further  investigation
including a possible recovery is needed, the aforesaid approach cannot give
them benefit, something we agree with. 
We may also notice an aspect submitted by Mr. Luthra that while issuing
notice  to  consider  bail,  the  trial  Court  is  not  precluded  from  granting
interim bail taking into consideration the conduct of the accused during the
investigation which has not warranted arrest. On this aspect also we would
give  our  imprimatur  and  naturally  the  bail  application  to  be  ultimately
considered, would be guided by the statutory provisions. 
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The suggestions of learned ASG which we have adopted have categorized a
separate set of offences as “economic Offences” not covered by the special
Acts. In this behalf, suffice to say on the submission of Mr. Luthra that this
Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40 has observed in para 39
that in determining whether to grant bail both aspects have to be taken into
account:
 a) seriousness of the charge and 
b) severity of punishment. 
Thus, it is not as if economic offences are completely taken out of the
aforesaid guidelines but do form a different nature of offences and thus the
seriousness of the charge has to be taken into account but simultaneously,
the severity of the punishment imposed by the statute would also be a
factor. 
We appreciate the assistance given by the learned counsels and the positive
approach adopted by the learned ASG. 
The SLP stands disposed of and the matter need not be listed further.
A copy of this order be circulated to the Registrars of the different High
Courts to be further circulated to the trial Courts so that the unnecessary
bail matters do not come up to this Court. 
This is the only purpose for which we have issued these guidelines, but they
are not fettered on the powers of the Courts.”
2. Two  more  applications,  being  M.A.  No.  1849/2021  and  M.A.  Diary
No.29164/2021, were filed seeking a clarification referring to category ‘C’
wherein, inadvertently, Section 45 of the Prevention of Money Laundering
Act, 2002 despite being struck down, found a place, thus came the Order
dated 16.12.2021:
“Learned senior counsels for parties state that they will endeavour to work
out some of the fine tuning which is required to give meaning to the intent
of our order dated 07.10.2021. 
We make it clear that our intent was to ease the process of bail and not to
restrict it. The order, in no way, imposes any additional fetters but is in
furtherance of the line of judicial thinking to enlarge the scope of bail. 
At this stage, suffice for us to say that while referring to category ‘C’,
inadvertently, Section 45 of Prevention of Money laundering Act (PMLA)
has been mentioned which has been struck down by this Court. Learned
ASG states that an amendment was made and that is pending challenge
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before this Court before a different Bench. That would be a matter to be
considered by that Bench. 
We are also putting a caution that merely by categorizing certain offences as
economic offences which may be non-cognizable, it does not mean that a
different meaning is to be given to our order. 
We may also clarify that if during the course of investigation, there has been
no cause to arrest the accused, merely because a charge sheet is filed, would
not be an  ipso facto  cause to arrest the petitioner, an aspect in general
clarified by us in Criminal Appeal No.838/2021 Siddharth v. State of Uttar
Pradesh & Anr. dated 16.08.2021.”
3. Some  more  applications  have  been  filed  seeking  certain
directions/clarifications, while impressing this Court to deal with the other
aspects governing the grant of bail. We have heard Shri Amit Desai, learned
senior  counsel,  Shri Sidharth  Luthra,  learned  senior  counsel,  and  learned
Additional Solicitor General Shri S.V . Raju.
4. Having found that special leave petitions pertaining to different offenses,
particularly on the rejection of bail applications are being filed before this
Court,  despite  various  directions  issued  from  time  to  time,  we  deem  it
appropriate  to  undertake  this  exercise.  We  do  make  it  clear  that  all  our
discussion along with the directions, are meant to act as guidelines, as each
case pertaining to a bail application is obviously to be decided on its own
merits. 
PREV AILING SITUATION
5. Jails  in  India  are  flooded  with  undertrial  prisoners.  The  statistics  placed
before us would indicate that more than 2/3 rd of the inmates of the prisons
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constitute undertrial prisoners. Of this category of prisoners, majority may
not  even  be  required  to  be  arrested  despite  registration  of  a  cognizable
offense, being charged with offenses punishable for seven years or less. They
are not only poor and illiterate but also would include women . Thus, there is
a culture of offense being inherited by many of them. As observed by this
Court, it certainly exhibits the mindset, a vestige of colonial India, on the part
of the Investigating Agency, notwithstanding the fact arrest is a draconian
measure resulting in curtailment of liberty, and thus to be used sparingly. In a
democracy, there can never be an impression that it is a police State as both
are conceptually opposite to each other.
DEFINITION OF TRIAL
6. The word ‘trial’ is not explained and defined under the Code. An extended
meaning has to be given to this word for the purpose of enlargement on bail
to include, the stage of investigation and thereafter. Primary considerations
would obviously be different between these two stages. In the former stage,
an arrest followed by a police custody may be warranted for a thorough
investigation, while in the latter what matters substantially is the proceedings
before the Court in the form of a trial. If we keep the above distinction in
mind, the consequence to be drawn is for a more favourable consideration
towards  enlargement  when  investigation  is  completed,  of  course,  among
other factors.
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7. Similarly, an appeal or revision shall also be construed as a facet of trial when
it comes to the consideration of bail on suspension of sentence.
DEFINITION OF BAIL  
8. The term “bail” has not been defined in the Code, though is used very often.
A bail is nothing but a surety inclusive of a personal bond from the accused.
It means the release of an accused person either by the orders of the Court or
by the police or by the Investigating Agency. 
9. It is a set of pre-trial restrictions imposed on a suspect while enabling any
interference in the judicial process. Thus, it is a conditional release on the
solemn undertaking by the suspect that he would cooperate both with the
investigation and the trial. The word “bail” has been defined in the Black’s
Law Dictionary, 9th Edn., pg. 160 as: -
“A security such as cash or a bond; esp., security required by a court for the release of
a prisoner who must appear in court at a future time."
10.Wharton’s Law Lexicon, 14th Edn., pg. 105 defines bail as: -
“to set at liberty a person arrested or imprisoned, on security being taken for his
appearance on a day and at a place certain, which security is called bail, because the
party arrested or imprisoned is delivered into the hands of those who bind themselves
or become bail for his due appearance when required, in order that he may be safely
protected from prison, to which they have, if they fear his escape, etc., the legal power
to deliver him." 
BAIL IS THE RULE  
11. The principle that bail is the rule and jail is the exception has been well
recognised through the repetitive pronouncements of this Court. This again is
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on the touchstone of Article 21 of the Constitution of India. This court in
Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, held that:
“19. In Gurbaksh  Singh  Sibbia  v. State  of  Punjab  [Gurbaksh  Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the
purpose of granting bail is set out with great felicity as follows: (SCC pp.
586-88, paras 27-30)
“27. It is not necessary to refer to decisions which deal with the right
to ordinary bail because that right does not furnish an exact parallel to
the right to anticipatory bail. It is, however, interesting that as long
back  as  in  1924  it  was  held  by  the  High  Court  of  Calcutta
in Nagendra Nath Chakravarti, In re  [Nagendra Nath Chakravarti, In
re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] ,
AIR pp. 479-80 that the object of bail is to secure the attendance of
the accused at the trial, that the proper test to be applied in the solution
of the question whether bail should be granted or refused is whether it
is probable that the party will appear to take his trial and that it is
indisputable that bail is not to be withheld as a punishment. In two
other cases which, significantly, are the “Meerut Conspiracy cases”
observations are to be found regarding the right to bail which deserve
a  special  mention.  In  K.N.  Joglekar  v. Emperor [K.N.
Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 :
1932 Cri LJ 94] it  was observed,  while dealing with  Section  498
which corresponds to the present Section 439 of the Code, that it
conferred upon the Sessions Judge or the High Court wide powers to
grant  bail  which  were  not  handicapped  by  the  restrictions  in  the
preceding Section 497 which corresponds to the present Section 437.
It was observed by the Court that there was no hard-and-fast rule and
no  inflexible  principle  governing  the  exercise  of  the  discretion
conferred  by  Section  498  and  that  the  only  principle  which  was
established was that the discretion should be exercised judiciously.
In Emperor v. H.L.  Hutchinson  [Emperor v. H.L.  Hutchinson,  1931
SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p.
358 it was said that it was very unwise to make an attempt to lay down
any particular rules which will bind the High Court, having regard to
the  fact  that  the  legislature  itself  left  the  discretion  of  the  court
unfettered. According to the High Court, the variety of cases that may
arise from time to time cannot be safely classified and it is dangerous
to make an attempt to classify the cases and to say that in particular
classes a bail may be granted but not in other classes. It was observed
that  the  principle  to  be  deduced  from  the  various  sections  in  the
Criminal Procedure Code was that grant of bail is the rule and refusal
is the exception. An accused person who enjoys freedom is in a much
better position to look after his case and to properly defend himself
than if he were in custody. As a presumably innocent person he is
therefore entitled to freedom and every opportunity to look after his
own case. A presumably innocent person must have his freedom to
enable him to establish his innocence.
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28.  Coming  nearer  home,  it  was  observed  by  Krishna  Iyer,  J.,
in Gudikanti  Narasimhulu  v. State [Gudikanti  Narasimhulu  v. State,
(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1)
‘1. … the issue [of bail] is one of liberty, justice, public safety
and  burden  of the  public  treasury,  all  of  which  insist that  a
developed  jurisprudence  of  bail  is  integral  to  a  socially
sensitised judicial process. … After all, personal liberty of an
accused or convict is fundamental, suffering lawful eclipse only
in terms of “procedure established by law”. The last four words
of Article 21 are the life of that human right.’
29.  In  Gurcharan  Singh  v. State (UT  of  Delhi)  [Gurcharan
Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41]
it was observed by Goswami, J., who spoke for the Court, that: (SCC
p. 129, para 29)
‘29. … There cannot be an inexorable formula in the matter of
granting  bail.  The  facts and  circumstances of each  case will
govern  the  exercise  of  judicial  discretion  in  granting  or
cancelling bail.’
30. In AMERICAN JURISPRUDENCE (2nd, V ol. 8, p. 806, para 39),
it is stated:
‘Where the granting of bail lies within the discretion of the court, the
granting or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. Since the object of the detention
or  imprisonment  of  the  accused  is  to  secure  his  appearance  and
submission  to  the  jurisdiction  and  the  judgment  of  the  court,  the
primary inquiry is whether a recognizance or bond would effect that
end.’
It is thus clear that the question whether to grant bail or not depends
for its answer upon a variety of circumstances, the cumulative effect
of  which  must  enter  into  the  judicial  verdict.  Any  one  single
circumstance  cannot  be  treated  as  of  universal  validity  or  as
necessarily justifying the grant or refusal of bail.”
       xxx xxx xxx
24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights
Chapter  of  the  Constitution  is  concerned.  It  deals  with  nothing  less
sacrosanct than the rights of life and personal liberty of the citizens of India
and other persons. It is the only article in the Fundamental Rights Chapter
(along with Article 20) that cannot be suspended even in an emergency [see
Article 359(1) of the Constitution]. At present, Article 21 is the repository of
a  vast  number  of  substantive  and  procedural  rights  post  Maneka
Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC
248].”
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12.Further  this  Court  in  Sanjay  Chandra  v.  CBI  (2012)  1  SCC  40,  has
observed that:
“21. In bail applications, generally, it has been laid down from the earliest
times that the object of bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail. The object of bail is neither
punitive  nor  preventative.  Deprivation  of  liberty  must  be  considered  a
punishment, unless it is required to ensure that an accused person will stand
his trial when called upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some unconvicted persons should be held in
custody pending trial to secure their attendance at the trial but in such cases,
“necessity” is the operative test. In this country, it would be quite contrary to
the concept of personal liberty enshrined in the Constitution that any person
should be punished in respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the witnesses if left at liberty,
save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail,
one must not lose sight of the fact that any imprisonment before conviction
has a substantial punitive content and it would be improper for any court to
refuse bail as a mark of disapproval of former conduct whether the accused
has been convicted for it or not or to refuse bail to an unconvicted person for
the purpose of giving him a taste of imprisonment as a lesson.”
PRESUMPTION OF INNOCENCE 
13.Innocence of a person accused of an offense is presumed through a legal
fiction, placing the onus on the prosecution to prove the guilt before the
Court. Thus, it is for that agency to satisfy the Court that the arrest made was
warranted and enlargement on bail is to be denied. 
14.Presumption  of  innocence  has  been  acknowledged  throughout  the  world.
Article 14 (2) of the International Covenant on Civil and Political Rights,
1966  and  Article  11  of  the  Universal  Declaration  of  Human  Rights
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acknowledge the presumption of innocence, as a cardinal principle of law,
until the individual is proven guilty.  
15.Both in Australia and Canada, a  prima facie  right to a reasonable bail is
recognized  based  on  the gravity of  offence.  In the  United States,  it  is a
common practice for bail to be a cash deposit. In the United Kingdom, bail is
more likely to consist of a set of restrictions.
16.The Supreme Court of Canada in Corey Lee James Myers v. Her Majesty
the  Queen,  2019  SCC  18,  has  held  that  bail  has  to  be  considered  on
acceptable legal parameters. It thus confers adequate discretion on the Court
to consider the enlargement on bail of which unreasonable delay is one of the
grounds. Her Majesty the Queen v. Kevin Antic and Ors., 2017 SCC 27:
“The right not to be denied reasonable bail without just cause is an essential
element of an enlightened criminal justice system. It entrenches the effect
of the presumption of innocence at the pre -trial stage of the criminal trial
process and safeguards the liberty of accused persons. This right has two
aspects: a person charged with an offence has the right not to be denied bail
without just cause and the right to reasonable bail. Under the first aspect, a
provision may not deny bail without “just cause”  there is just cause to deny
bail only if the denial occurs in a narrow set of circumstances, and the
denial is necessary to promote the proper functioning of the bail system and
is not undertaken for any purpose extraneous to that system. The second
aspect, the right to reasonable bail, relates to the terms of bail, including the
quantum  of  any  monetary  component  and  other  restrictions  that  are
imposed on the accused for the release period. It protects accused persons
from conditions and forms of release that are unreasonable.
While a bail hearing is an expedited procedure, the bail provisions are
federal law and must be applied consistently and fairly in all provinces and
territories. A central part of the Canadian law of bail consists of the ladder
principle  and  the  authorized  forms  of  release,  which  are  found
in s. 515(1) to (3) of  the  Criminal  Code .  Save  for  exceptions,  an
unconditional  release  on  an  undertaking  is  the  default  position  when
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granting  release.  Alternative  forms  of  release  are  to  be  imposed  in
accordance with the ladder principle, which must be adhered to strictly:
release is favoured at the earliest reasonable opportunity and on the least
onerous grounds. If the Crown proposes an alternate form of release, it must
show why this form is necessary for a more restrictive form of release to be
imposed. Each rung of the ladder must be considered individually and must
be rejected before moving to a more restrictive form of release. Where the
parties disagree on the form of release, it is an error of law for a judge to
order a more restrictive form without justifying the decision to reject the
less onerous forms. A recognizance with sureties is one of the most onerous
forms of release, and should not be imposed unless all the less onerous
forms  have  been  considered  and  rejected  as  inappropriate.  It  is  not
necessary to impose cash bail on accused persons if they or their sureties
have reasonably recoverable assets and are able to pledge those assets to the
satisfaction of the court. A recognizance is functionally equivalent to cash
bail and has the same coercive effect. Cash bail should be relied on only in
exceptional circumstances in which release on a recognizance with sureties
is unavailable. When cash bail is ordered, the amount must not be set so
high that it effectively amounts to a detention order, which means that the
amount  should  be  no higher  than  necessary to  satisfy  the  concern  that
would otherwise warrant detention and proportionate to the means of the
accused and the circumstances of the case. The judge is under a positive
obligation to inquire into the ability of the accused to pay. Terms of release
under s.     515(4) should only be imposed to the extent that they are necessary
to address concerns related to the statutory criteria for detention and to
ensure that the accused is released. They must not be imposed to change an
accused person’s behaviour or to punish an accused person. Where a bail
review is requested, courts must follow the bail review process set out in  R.
v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.”
17.We may only state that notwithstanding the special provisions in many of the
countries world-over governing the consideration for enlargement on bail,
courts have always interpreted them on the accepted principle of presumption
of innocence and held in favour of the accused.
18.The position in India is no different. It has been the consistent stand  of the
courts, including this Court, that presumption of innocence, being a facet of
Article 21, shall inure to the benefit of the accused. Resultantly burden is
placed  on  the prosecution  to prove  the charges to the  court  of law.  The
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weightage of the evidence has to be assessed on the principle of beyond
reasonable doubt. 
PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE
“An uncontrolled power is the natural enemy of freedom” 
-Harold Laski in ‘Liberty in the Modern State’
19.The Code of Criminal Procedure, despite being a procedural law, is enacted
on the inviolable right enshrined under Article 21 and 22 of the Constitution
of India. The provisions governing clearly exhibited the aforesaid intendment
of the Parliament. 
20.Though the word ‘bail’ has not been defined as aforesaid, Section 2A defines
a bailable and non-bailable offense. A non-bailable offense is a cognizable
offense enabling the police officer to arrest without a warrant. To exercise the
said power, the Code introduces certain embargoes by way of restrictions. 
Section 41, 41A and 60A of the Code
CHAPTER V
ARREST OF PERSONS
41. When police may arrest without warrant.— (1) Any police officer
may without an order from a Magistrate and without a warrant, arrest any
person— 
 (a)  who  commits, in  the  presence  of a  police  officer,  a cognizable
offence;
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 (b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that
he  has  committed  a  cognizable  offence  punishable  with
imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if the
following conditions are satisfied, namely:— 
(i) the police officer has reason to believe on the basis of such
complaint,  information,  or  suspicion  that  such  person  has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a)  to  prevent  such  person  from  committing  any  further
offence; or 
(b) for proper investigation of the offence; or 
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in
any manner; or 
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such
facts to the Court or to the police officer; or 
(e)  as unless such person is arrested,  his presence  in the
Court  whenever  required  cannot  be  ensured,  and  the
police officer shall record while making such arrest, his
reasons in writing: 
Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of
this  sub-section,  record  the  reasons  in  writing  for  not
making the arrest. 
(ba) against whom credible information has been received
that he has committed a cognizable offence punishable
with imprisonment for a term which may extend to more
than seven years whether with or without fine or with
death sentence and the police officer has reason to believe
on  the  basis  of  that  information  that  such  person  has
committed the said offence;
(c) who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d)  in  whose  possession  anything  is  found  which  may
reasonably be suspected to be stolen property and who
may  reasonably  be  suspected  of  having  committed  an
offence with reference to such thing; or
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(e) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody; or 
(f) who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union; or
(g)  who  has  been  concerned  in,  or  against  whom  a
reasonable  complaint  has  been  made,  or  credible
information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed
at any place out of India which, if committed in India,
would have been punishable as an offence, and for which
he is, under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India;
or 
(h) who, being a released convict, commits a breach of any
rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral,
has been received from another police officer, provided
that the requisition specifies the person to be arrested and
the offence or other cause for which the arrest is to be
made  and  it  appears  therefrom  that  the  person  might
lawfully be arrested without a warrant by the officer who
issued the requisition. 
(2) Subject to the provisions of section 42, no person concerned in a non-
cognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exists of his having
so  concerned,  shall  be  arrested  except  under  a  warrant  or  order  of  a
Magistrate.
41A. Notice of appearance before police officer.—( 1) [The police officer
shall], in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice. 
(2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice. 
(3) Where such person complies and continues to comply with the notice,
he shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion that he
ought to be arrested. 
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(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject to
such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.
xxx xxx xxx
60A. Arrest to be made strictly according to the Code .—No arrest shall
be made except in accordance with the provisions of this Code or any other
law for the time being in force providing for arrest.”
21.Section 41 under Chapter V of the Code deals with the arrest of persons.
Even for a cognizable offense, an arrest is not mandatory as can be seen from
the mandate of this provision. If the officer is satisfied that a person has
committed a cognizable offense, punishable with imprisonment for a term
which may be less than seven years, or which may extend to the said period,
with or without fine, an arrest could only follow when he is satisfied that
there is a reason to believe or suspect, that the said person has committed an
offense, and there is a necessity for an arrest. Such necessity is drawn to
prevent the committing of any further offense, for a proper investigation, and
to prevent him/her from either disappearing or tampering with the evidence.
He/she  can  also  be  arrested  to  prevent  such  person  from  making  any
inducement, threat, or promise to any person according to the facts, so as to
dissuade him from disclosing said facts either to the court or to the police
officer. One  more ground  on  which  an arrest  may be necessary  is when
his/her presence is required after arrest for production before the Court and
the same cannot be assured. 
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22.This provision mandates the police officer to record his reasons in writing
while making the arrest. Thus, a police officer is duty-bound to record the
reasons for arrest in writing. Similarly, the police officer shall record reasons
when he/she chooses not to arrest. There is no requirement of the aforesaid
procedure  when  the  offense  alleged  is  more  than  seven  years,  among
other reasons. 
23.The consequence of non-compliance with Section 41 shall certainly inure  to
the  benefit  of  the  person  suspected  of  the  offense.  Resultantly,  while
considering the application for enlargement on bail, courts will have to satisfy
themselves on the due compliance of this provision. Any non-compliance
would entitle the accused to a grant of bail. 
24.Section 41A deals with the procedure for appearance before the police officer
who is required to issue a notice to the person against whom a reasonable
complaint has been made, or credible information has been received or a
reasonable suspicion exists that he has committed a cognizable offence, and
arrest  is  not  required  under  Section  41(1).  Section  41B  deals  with  the
procedure of arrest along with mandatory duty on the part of the officer.
25.On the scope and objective of Section 41 and 41A, it is obvious that they are
facets of Article 21 of the Constitution. We need not elaborate any further, in
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light of the judgment of this Court in  Arnesh Kumar v. State of Bihar ,
(2014) 8 SCC 273:
“7.1. From a plain reading of the aforesaid provision, it is evident that
a person accused of an offence punishable with imprisonment for a
term which may be less than seven years or which may extend to
seven years with or without fine, cannot be arrested by the police
officer only on his satisfaction that such person had committed the
offence punishable as aforesaid. A police officer before arrest, in such
cases has to be further satisfied that such arrest is necessary to prevent
such  person  from  committing  any  further  offence;  or  for  proper
investigation of the case; or to prevent the accused from causing the
evidence of the offence to disappear; or tampering with such evidence
in  any  manner;  or  to  prevent  such  person  from  making  any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the court or the police officer; or unless such
accused  person  is  arrested,  his  presence  in  the  court  whenever
required cannot be ensured. These are the conclusions, which one
may reach based on facts.
7.2. The law mandates the police officer to state the facts and record
the reasons in writing which led him to come to a conclusion covered
by any of the provisions aforesaid, while making such arrest. The law
further requires the police officers to record the reasons in writing for
not making the arrest.
7.3. In  pith  and  core,  the  police  officer  before  arrest  must  put  a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the
basis of information and material that the accused has committed the
offence. Apart from this, the police officer has to be satisfied further
that the arrest is necessary for one or the more purposes envisaged by
sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.
8. An accused arrested without warrant by the police has the constitutional
right under Article 22(2) of the Constitution of India and Section 57 CrPC
to be produced before the Magistrate without unnecessary delay and in no
circumstances  beyond  24  hours  excluding  the  time  necessary  for  the
journey:
8.1. During the course of investigation of a case, an accused can be
kept  in  detention  beyond  a  period  of  24  hours  only  when  it  is
authorised by the Magistrate in exercise of power under Section 167
CrPC. The power to authorise detention is a very solemn function. It
affects the liberty and freedom of citizens and needs to be exercised
with great care and caution. Our experience tells us that it is not
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exercised  with  the  seriousness  it  deserves.  In  many  of  the  cases,
detention is authorised in a routine, casual and cavalier manner.
8.2. Before  a  Magistrate  authorises  detention  under  Section  167
CrPC, he has to be first satisfied that the arrest made is legal and in
accordance with law and all the constitutional rights of the person
arrested are satisfied. If the arrest effected by the police officer does
not satisfy the requirements of Section 41 of the Code, Magistrate is
duty-bound  not  to  authorise  his  further  detention  and  release  the
accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that the condition precedent
for arrest under Section 41 CrPC has been satisfied and it is only
thereafter that he will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record his own
satisfaction, may be in brief but the said satisfaction must reflect from
his order. It shall never be based upon the ipse dixit of the police
officer, for example, in case the police officer considers the arrest
necessary to prevent such person from committing any further offence
or for proper investigation of the case or for preventing an accused
from tampering with evidence or making inducement, etc. the police
officer  shall  furnish  to  the  Magistrate  the  facts,  the  reasons  and
materials on the basis of which the police officer had reached its
conclusion.  Those  shall  be  perused  by  the  Magistrate  while
authorising the detention and only after recording his satisfaction in
writing that the Magistrate will authorise the detention of the accused.
8.4. In  fine,  when  a  suspect  is  arrested  and  produced  before  a
Magistrate for authorising detention, the Magistrate has to address the
question whether specific reasons have been recorded for arrest and if
so, prima facie those reasons are relevant, and secondly, a reasonable
conclusion could at all be reached by the police officer that one or the
other conditions stated above are attracted. To this limited extent the
Magistrate will make judicial scrutiny.
9. …The aforesaid provision makes it clear that in all cases where the arrest
of a person is not required under Section 41(1) CrPC, the police officer is
required to issue notice directing the accused to appear before him at a
specified place and time. Law obliges such an accused to appear before the
police officer and it further mandates that if such an accused complies with
the  terms  of  notice  he  shall  not  be  arrested,  unless  for  reasons  to  be
recorded, the police officer is of the opinion that the arrest is necessary. At
this  stage  also,  the  condition  precedent  for  arrest  as  envisaged  under
Section 41 CrPC has to be complied  and shall  be subject  to the  same
scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 CrPC which
authorises the police officer to arrest an accused without an order from a
Magistrate and without a warrant are scrupulously enforced, the wrong
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committed  by  the  police  officers  intentionally  or  unwittingly  would  be
reversed and the number of cases which come to the Court for grant of
anticipatory bail will substantially reduce. We would like to emphasise that
the practice of mechanically reproducing in the case diary all or most of the
reasons contained in Section 41 CrPC for effecting arrest be discouraged
and discontinued.
11. Our endeavour in this judgment is to ensure that police officers do not
arrest the accused unnecessarily and Magistrate do not authorise detention
casually  and  mechanically.  In  order  to  ensure  what  we  have  observed
above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to
automatically  arrest  when  a  case  under  Section  498-A  IPC  is
registered  but  to  satisfy  themselves  about  the  necessity  for  arrest
under the parameters laid down above flowing from Section 41 CrPC;
11.2. All  police  officers  be  provided  with  a  check  list  containing
specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and
furnish the reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
11.4. The Magistrate while authorising detention of the accused shall
peruse the report furnished by the police officer in terms aforesaid
and only after recording its satisfaction, the Magistrate will authorise
detention;
11.5. The  decision  not  to  arrest  an  accused,  be  forwarded  to  the
Magistrate within two weeks from the date of the institution of the
case with a copy to the Magistrate which may be extended by the
Superintendent of Police of the district for the reasons to be recorded
in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served
on the accused within two weeks from the date of institution of the
case, which may be extended by the Superintendent of Police of the
district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from
rendering the police officers concerned liable for departmental action,
they shall also be liable to be punished for contempt of court to be
instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by
the  Judicial  Magistrate  concerned  shall  be liable  for  departmental
action by the appropriate High Court.
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12. We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act,
the case in hand, but also such cases where offence is punishable with
imprisonment for a term which may be less than seven years or which may
extend to seven years, whether with or without fine.”
26.We only reiterate that the directions aforesaid ought to be complied with in
letter and spirit by the investigating and prosecuting agencies, while the view
expressed by us on the non-compliance of Section 41 and the consequences
that flow from it has to be kept in mind by the Court, which is expected to be
reflected in the orders.
27.Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step
has been taken to comply with the mandate of Section 41A of the Code. This
Court has clearly interpreted Section 41(1)(b)(i) and (ii)  inter alia  holding
that notwithstanding the existence of a reason to believe qua a police officer,
the satisfaction for the need to arrest shall also be present. Thus, sub-clause
(1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore
both the elements of ‘reason to believe’ and ‘satisfaction  qua an arrest’ are
mandated and accordingly are to be recorded by the police officer.
28.It is also brought to our notice that there are no specific guidelines with
respect  to  the  mandatory  compliance  of  Section  41A of  the  Code.  An
endeavour was made by the Delhi High Court while deciding Writ Petition
(C) No. 7608 of 2017 vide order dated 07.02.2018, followed by order dated
28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No.
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25054 of 2020, wherein not only the need for guidelines but also the effect of
non-compliance  towards taking action  against  the officers concerned  was
discussed. We also take note of the fact that a standing order has been passed
by the Delhi Police viz., Standing Order No. 109 of 2020, which provides for
a set of guidelines in the form of procedure for issuance of notices or orders
by  the  police  officers.   Considering  the  aforesaid  action  taken,  in  due
compliance with the order passed by the Delhi High Court in Writ Petition
(C) No.7608 of 2017 dated 07.02.2018, this Court has also passed an order in
Writ Petition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of Bihar
to look into the said aspect of an appropriate modification to give effect to the
mandate of Section 41A. A recent judgment has also been rendered on the
same lines by the High Court of Jharkhand in Cr.M.P. No. 1291 of 2021 dated
16.06.2022.
29.Thus, we deem it appropriate to direct all the State Governments and the
Union  Territories  to  facilitate  standing  orders  while  taking  note  of  the
standing order issued by the Delhi Police i.e., Standing Order No. 109 of
2020, to comply with the mandate of Section 41A. We do feel that this would
certainly take care of not only the unwarranted arrests, but also the clogging
of bail applications before various Courts as they may not even be required
for the offences up to seven years.
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30.We also expect the courts to come down heavily on the officers effecting
arrest without due compliance of Section 41 and Section 41A. We express our
hope that the Investigating Agencies would keep in mind the law laid down in
Arnesh Kumar (Supra),  the discretion to be exercised on the touchstone of
presumption of innocence, and the safeguards provided under Section 41,
since an arrest is not mandatory. If discretion is exercised to effect such an
arrest, there shall be procedural compliance. Our view is also reflected by the
interpretation of the specific provision under Section 60A of the Code which
warrants the officer concerned to make the arrest strictly in accordance with
the Code.
Section 87 and 88 of   the Code   
“87. Issue of warrant in lieu of, or in addition to, summons .—A Court
may, in any case in which it is empowered by this Code to issue a summons
for  the  appearance  of  any  person,  issue,  after  recording  its  reasons  in
writing, a warrant for his arrest—
(a) if, either before the issue of such summons, or after the issue of
the same but before the time fixed for his appearance, the Court sees
reason  to  believe  that  he  has  absconded  or  will  not  obey  the
summons; or
(b) if at such time he fails to appear and the summons is proved to
have been duly served in time to admit of his appearing in accordance
therewith and no reasonable excuse is offered for such failure
88. Power to take bond for appearance. —When any person for whose
appearance or arrest the officer presiding in any Court is empowered to
issue a summons or warrant, is present in such Court, such officer may
require such person to execute a bond, with or without sureties, for his
appearance in such Court, or any other Court to which the case may be
transferred for trial.”
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31.When the courts seek the attendance of a person, either a summons or a
warrant is to be issued depending upon the nature and facts governing the
case. Section 87 gives the discretion to the court to issue a warrant, either in
lieu of or in addition to summons. The exercise of the aforesaid power can
only be done after recording of reasons. A warrant can be either bailable or
non-bailable. Section 88 of the Code empowers the Court to take a bond for
appearance of a person with or without sureties.
32.Considering  the  aforesaid  two  provisions,  courts  will  have  to  adopt  the
procedure in issuing summons first, thereafter a bailable warrant, and then a
non-bailable warrant may be issued, if so warranted, as held by this Court in
Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1.  Despite
the aforesaid clear dictum, we notice that non-bailable warrants are issued as
a matter of course without due application of mind and against the tenor of
the provision, which merely facilitates a discretion, which is obviously to be
exercised in favour of the person whose attendance is sought for, particularly
in  the  light  of  liberty  enshrined  under  Article  21  of  the  Constitution.
Therefore, valid reasons have to be given for not exercising discretion in
favour of the said person. This Court in Inder Mohan Goswami v. State of
Uttaranchal, (2007) 12 SCC 1, has held that:
“50. Civilised countries have recognised that liberty is the most precious of
all the human rights. The American Declaration of Independence, 1776,
French Declaration of the Rights of Men and the Citizen, 1789, Universal
Declaration of Human Rights and the International Covenant of Civil and
Political Rights, 1966 all speak with one voice—liberty is the natural and
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inalienable  right  of  every  human  being.  Similarly,  Article  21  of  our
Constitution proclaims that no one shall be deprived of his liberty except in
accordance with procedure prescribed by law.
51. The  issuance  of  non-bailable  warrants  involves  interference  with
personal liberty. Arrest and imprisonment means deprivation of the most
precious right of an individual. Therefore, the courts have to be extremely
careful before issuing non-bailable warrants.
52. Just as liberty is precious for an individual so is the interest of the
society in maintaining law and order. Both are extremely important for the
survival of a civilised society. Sometimes in the larger interest of the public
and the State it becomes absolutely imperative to curtail freedom of an
individual for a certain period, only then the non-bailable warrants should
be issued.
When non-bailable warrants should be issued
53. Non-bailable warrant should be issued to bring a person to court when
summons or bailable warrants would be unlikely to have the desired result.
This could be when:
•  it is reasonable to believe that the person will not voluntarily appear
in court; or
•  the police authorities are unable to find the person to serve him with
a summon; or
•   it is considered that the person could harm someone if not placed
into custody    immediately.
54. As far as possible, if the court is of the opinion that a summon will
suffice in getting the appearance of the accused in the court, the summon or
the bailable warrants should be preferred. The warrants either bailable or
non-bailable should never be issued without proper scrutiny of facts and
complete application of mind, due to the extremely serious consequences
and ramifications which ensue on issuance of warrants. The court must very
carefully examine whether the criminal complaint or FIR has not been filed
with an oblique motive.
55. In complaint cases, at the first instance, the court should direct serving
of the summons along with the copy of the complaint. If the accused seem
to be avoiding the summons, the court, in the second instance should issue
bailable warrant. In the third instance, when the court is fully satisfied that
the accused is avoiding the court's proceeding intentionally, the process of
issuance of the non-bailable warrant should be resorted to. Personal liberty
is paramount, therefore, we caution courts at the first and second instance to
refrain from issuing non-bailable warrants.
56. The  power  being  discretionary  must  be  exercised  judiciously  with
extreme care and caution. The court should properly balance both personal
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liberty and societal interest before issuing warrants. There cannot be any
straitjacket formula for issuance of warrants but as a general rule, unless an
accused is charged with the commission of an offence of a heinous crime
and it is feared that he is likely to tamper or destroy the evidence or is likely
to evade the process of law, issuance of non-bailable warrants should be
avoided.
57. The court should try to maintain proper balance between individual
liberty  and  the  interest  of  the  public  and  the  State  while  issuing  non-
bailable warrant.”
33.On the exercise of discretion under Section 88, this Court in Pankaj Jain v.
Union of India, (2018) 5 SCC 743, has held that:
“12. The main issue which needs to be answered in the present appeal is as
to  whether  it  was  obligatory  for  the  Court  to  release  the  appellant  by
accepting the bond under Section 88 CrPC on the ground that he was not
arrested  during  investigation  or  the  Court  has  rightly  exercised  its
jurisdiction  under  Section  88  in  rejecting  the  application  filed  by  the
appellant praying for release by accepting the bond under Section 88 CrPC.
13. Section  88  CrPC  is  a  provision  which  is  contained  in  Chapter  VI
“Processes to Compel Appearance” of the Code of Criminal Procedure,
1973. Chapter VI is divided in four sections — A. Summons; B. Warrant of
arrest;  C.  Proclamation  and  Attachment;  and  D.  Other  rules  regarding
processes. Section 88 provides as follows:
“88. Power to take bond for appearance .—When any person
for whose appearance or arrest the officer presiding in any court
is empowered to issue a summons or warrant, is present in such
court, such officer may require such person to execute a bond,
with or without sureties, for his appearance in such court, or any
other court to which the case may be transferred for trial.”
14. We need to first consider as to what was the import of the words “may”
used in Section 88.
xxx xxx xxx
22. Section  88 CrPC does  not  confer  any right  on any  person, who is
present in a court. Discretionary power given to the court is for the purpose
and object of ensuring appearance of such person in that court or to any
other court into which the case may be transferred for trial. Discretion
given under Section 88 to the court does not confer any right on a person,
who is present in the court rather it is the power given to the court to
facilitate his appearance, which clearly indicates that use of the word “may”
is  discretionary  and  it  is  for  the  court  to  exercise  its  discretion  when
situation so demands. It is further relevant to note that the word used in
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Section 88 “any person” has to be given wide meaning, which may include
persons, who are not even accused in a case and appeared as witnesses.”
Section 167(2)   of the Code
167. Procedure when investigation cannot be completed in twenty-four
hours.—
(1) xxx xxx xxx
(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has not jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
Provided that—
(a)  the  Magistrate  may  authorise  the  detention  of  the  accused
person, otherwise than in the custody of the police, beyond the
period of fifteen days, if he is satisfied that adequate grounds exist
for doing so, but no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a total period
exceeding,—
(i) ninety days, where the investigation relates to an offence
punishable  with  death,  imprisonment  for  life  or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days,
or sixty days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail, and
every person released on bail under this sub-section shall be
deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;
(b)  no  Magistrate  shall  authorise  detention  of  the  accused  in
custody  of  the  police  under  this  section  unless  the  accused  is
produced before him in person for the first time and subsequently
every time till the accused remains in the custody of the police, but
the Magistrate may extend further detention in judicial custody on
production of the accused either in person or through the medium
of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in
this  behalf  by the  High Court,  shall  authorise  detention  in  the
custody of the police.
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Explanation I.—For the avoidance of doubts, it is hereby declared that,
notwithstanding  the  expiry  of  the  period  specified  in  Para  (a),  the
accused shall be detained in custody so long as he does not furnish bail.
Explanation II.—If any question arises whether an accused person was
produced  before  the  Magistrate  as  required  under  clause  (b),  the
production of the accused person may be proved by his signature on the
order authorising detention or by the order certified by the Magistrate as
to production of the accused person through the medium of electronic
video linkage, as the case may be.
Provided further that in case of a woman under eighteen years of age,
the detention shall be authorised to be in the custody of a remand home
or recognised social institution.”
34.Section  167(2)  was introduced  in  the  year  1978,  giving  emphasis to  the
maximum period of time to complete the investigation. This provision has got
a laudable object behind it, which is to ensure an expeditious investigation
and a fair trial, and to set down a rationalised procedure that protects the
interests of the  indigent  sections of society.  This is also another limb of
Article 21. Presumption of innocence is also inbuilt in this provision. An
investigating agency has to expedite the process of investigation as a suspect
is languishing under incarceration. Thus, a duty is enjoined upon the agency
to complete the investigation within the time prescribed and a failure would
enable the release of the accused. The right enshrined is an absolute and
indefeasible one, inuring to the benefit of suspect. Such a right cannot be
taken away even during any unforeseen circumstances, such as the recent
pandemic, as held by this court in M. Ravindran v. Directorate of Revenue
Intelligence, (2021) 2 SCC 485:
“II. Section  167(2) and  the  Fundamental  Right to  Life  and  Personal
Liberty
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17. Before we proceed to expand upon the parameters of the right to default
bail under Section 167(2) as interpreted by various decisions of this Court,
we find it pertinent to note the observations made by this Court in  Uday
Mohanlal  Acharya  [Uday  Mohanlal  Acharya  v. State  of  Maharashtra ,
(2001) 5 SCC 453 : 2001 SCC (Cri) 760] on the fundamental right to
personal liberty of the person and the effect of deprivation of the same as
follows: (SCC p. 472, para 13)
“13. … Personal liberty is one of the cherished objects of the Indian
Constitution and deprivation of the same can only be in accordance
with law and in conformity with the provisions thereof, as stipulated
under Article 21 of the Constitution. When the law provides that the
Magistrate could authorise the detention of the accused in custody up
to a maximum period as indicated in the proviso to sub-section (2) of
Section 167, any further detention beyond the period without filing of
a  challan  by  the  investigating  agency  would  be  a  subterfuge  and
would  not  be  in  accordance  with  law  and  in  conformity  with the
provisions of the Criminal Procedure Code, and as such, could be
violative of Article 21 of the Constitution.”
17.1. Article 21 of the Constitution of India provides that “ no person shall
be deprived of his life or personal liberty except according to procedure
established by law ”. It has been settled by a Constitution Bench of this
Court  in Maneka  Gandhi v. Union  of  India [Maneka  Gandhi v. Union  of
India, (1978) 1 SCC 248], that such a procedure cannot be arbitrary, unfair
or unreasonable. The history of the enactment of Section 167(2) CrPC and
the  safeguard  of  “default  bail”  contained  in  the  proviso  thereto  is
intrinsically linked to Article 21 and is nothing but a legislative exposition
of the constitutional safeguard that no person shall be detained except in
accordance with rule of law.
17.2. Under Section 167 of the Code of Criminal Procedure, 1898 (“the
1898 Code”) which was in force prior to the enactment of the CrPC, the
maximum  period  for  which  an accused  could  be  remanded  to custody,
either  police  or  judicial,  was  15  days.  However,  since  it  was  often
unworkable  to  conclude  complicated  investigations  within  15  days,  a
practice  arose  wherein  investigating  officers  would  file  “preliminary
charge-sheets” after the expiry of the remand period. The State would then
request the Magistrate to postpone commencement of the trial and authorise
further remand of the accused under Section 344 of the 1898 Code till the
time the investigation was completed and the final charge-sheet was filed.
The Law Commission of India in Report No. 14 on  Reforms of the Judicial
Administration (V ol. II, 1948, pp. 758-760) pointed out that in many cases
the accused were languishing for several months in custody without any
final report being filed before the courts. It was also pointed out that there
was conflict in judicial opinion as to whether the Magistrate was bound to
release the accused if the police report was not filed within 15 days.
17.3. Hence the Law Commission in Report No. 14 recommended the need
for an appropriate provision specifically providing for continued remand
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after the expiry of 15 days, in a manner that “ while meeting the needs of a
full and proper investigation in cases of serious crime, will still safeguard
the liberty of the person of the individual ”. Further, that the legislature
should prescribe a maximum time period beyond which no accused could
be detained without filing of the police report before the Magistrate. It was
pointed out that in England, even a person accused of grave offences such
as treason could not be indefinitely detained in prison till commencement
of the trial.
17.4. The suggestion made in Report No. 14 was reiterated by the Law
Commission  in  Report  No.  41  on  The  Code  of  Criminal  Procedure,
1898 (V ol. I, 1969, pp. 76-77). The Law Commission re-emphasised the
need to guard against the misuse of Section 344 of the 1898 Code by filing
“preliminary  reports”  for  remanding  the  accused  beyond  the  statutory
period prescribed under Section 167. It was pointed out that this could lead
to serious abuse wherein “the arrested person can in this manner be kept in
custody  indefinitely  while  the  investigation  can  go  on  in  a  leisurely
manner”. Hence the Commission recommended fixing of a maximum time-
limit of 60 days for remand. The Commission considered the reservation
expressed earlier in Report No. 37 that such an extension may result in the
60-day period becoming a matter of routine. However, faith was expressed
that proper supervision by the superior courts would help circumvent the
same.
17.5. The  suggestions  made  in  Report  No.  41  were  taken  note  of  and
incorporated  by  the  Central  Government  while  drafting  the  Code  of
Criminal Procedure Bill in 1970. Ultimately, the 1898 Code was replaced
by the present CrPC. The Statement of Objects and Reasons of the CrPC
provides that the Government took the following important considerations
into  account  while  evaluating  the  recommendations  of  the  Law
Commission:
“3. The  recommendations  of  the  Commission  were  examined
carefully  by  the  Government,  keeping  in  view,  among  others,  the
following basic considerations:
(i) an accused person should get a fair trial in accordance with
the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation
and trial which is harmful not only to the individuals involved
but also to society; and
(iii) the procedure should not be complicated and should, to the
utmost extent possible, ensure fair deal to the poorer sections of
the community.”
17.6. It was in this backdrop that Section 167(2) was enacted within the
present day CrPC, providing for time-limits on the period of remand of the
accused, proportionate to the seriousness of the offence committed, failing
which the accused acquires the indefeasible right to bail. As is evident from
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the recommendations of the Law Commission mentioned supra, the intent
of  the  legislature  was  to  balance  the  need  for  sufficient  time-limits  to
complete the investigation with the need to protect the civil liberties of the
accused. Section 167(2) provides for a clear mandate that the investigative
agency  must  collect  the  required  evidence  within  the  prescribed  time
period, failing which the accused can no longer be detained. This ensures
that the investigating officers are compelled to act swiftly and efficiently
without misusing the prospect of further remand. This also ensures that the
court takes cognizance of the case without any undue delay from the date of
giving information of the offence, so that society at large does not lose faith
and develop cynicism towards the criminal justice system.
17.7. Therefore, as mentioned supra, Section 167(2) is integrally linked to
the constitutional commitment under Article 21 promising protection of life
and personal liberty against unlawful and arbitrary detention, and must be
interpreted in a manner which serves this purpose. In this regard we find it
useful  to  refer  to  the  decision  of  the  three-Judge  Bench  of  this  Court
in Rakesh Kumar Paul  v. State of Assam  [Rakesh Kumar Paul  v. State of
Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , which laid down
certain seminal principles as to the interpretation of Section 167(2) CrPC
though the questions of law involved were somewhat different from the
present case. The questions before the three-Judge Bench in  Rakesh Kumar
Paul [Rakesh Kumar Paul  v. State of Assam, (2017) 15 SCC 67 : (2018) 1
SCC (Cri) 401] were whether, firstly, the 90-day remand extension under
Section 167(2)(a)(i) would be applicable in respect of offences where the
maximum  period  of  imprisonment  was  10  years,  though  the  minimum
period was less than 10 years. Secondly, whether the application for bail
filed by the accused could be construed as an application for default bail,
even though the expiry of the statutory period under Section 167(2) had not
been specifically pleaded as a ground for bail. The majority opinion held
that  the  90-day  limit  is  only  available  in  respect  of  offences  where
a minimum ten year' imprisonment period is stipulated, and that the oral
arguments for default bail made by the counsel for the accused before the
High Court would suffice in lieu of a written application. This was based on
the  reasoning  that  the  court  should  not  be  too  technical  in  matters  of
personal liberty. Madan B. Lokur, J. in his majority opinion, pertinently
observed as follows: (SCC pp. 95-96 & 99, paras 29, 32 & 41)
“29. Notwithstanding this, the basic legislative intent of completing
investigations within twenty-four hours and also within an otherwise
time-bound period remains unchanged, even though that period has
been extended over the years. This is an indication that in addition to
giving adequate time to complete investigations,  the legislature has
also and always put a premium on personal liberty and has always
felt that it would be unfair to an accused to remain in custody for a
prolonged or indefinite period. It is for this reason and also to hold
the investigating agency accountable that time-limits have been laid
down by the legislature. …
xxx xxx xxx
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32.  …Such  views  and  opinions  over  a  prolonged  period  have
prompted the legislature for more than a century to ensure expeditious
conclusion  of  investigations  so  that  an  accused  person  is  not
unnecessarily deprived of his or her personal liberty by remaining in
prolonged custody for an offence that he or she might not even have
committed. In our opinion, the entire debate before us must also be
looked  at  from  the  point  of  view  of  expeditious  conclusion  of
investigations and from the angle of personal liberty and not from a
purely dictionary or textual perspective as canvassed by the learned
counsel for the State.
xxx xxx xxx
41. We take this view keeping in mind that in matters of personal
liberty and Article 21 of the Constitution, it is not always advisable to
be  formalistic  or  technical.  The  history  of  the  personal  liberty
jurisprudence of this Court and other constitutional courts includes
petitions  for  a  writ  of  habeas  corpus  and  for  other  writs  being
entertained even on the basis of a letter addressed to the Chief Justice
or the Court.”
(emphasis supplied)
Therefore, the courts cannot adopt a rigid or formalistic approach
whilst  considering  any  issue  that  touches  upon  the  rights  contained  in
Article 21.
17.8. We may also refer with benefit to the recent judgment of this Court
in S. Kasi v. State [S. Kasi v. State, (2021) 12 SCC 1 : 2020 SCC OnLine
SC 529], wherein it was observed that the indefeasible right to default bail
under Section 167(2) is an integral part of the right to personal liberty under
Article 21, and the said right to bail cannot be suspended even during a
pandemic situation as is prevailing currently. It was emphasised that the
right of the accused to be set at liberty takes precedence over the right of
the State to carry on the investigation and submit a charge-sheet.
17.9. Additionally, it is well-settled that in case of any ambiguity in the
construction of a penal statute, the courts must favour the interpretation
which  leans  towards  protecting  the  rights  of  the  accused,  given  the
ubiquitous power disparity between the individual accused and the State
machinery. This is applicable not only in the case of substantive penal
statutes but also in the case of procedures providing for the curtailment of
the liberty of the accused.
17.10. With respect to the CrPC particularly, the Statement of Objects and
Reasons (supra) is an important aid of construction. Section 167(2) has to
be interpreted keeping in mind the threefold objectives expressed by the
legislature, namely, ensuring a fair trial, expeditious investigation and trial,
and  setting  down  a rationalised  procedure  that  protects  the  interests  of
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indigent sections of society. These objects are nothing but subsets of the
overarching fundamental right guaranteed under Article 21.
17.11. Hence, it is from the perspective of upholding the fundamental right
to  life  and  personal  liberty  under  Article  21  that  we  shall  clarify  and
reconcile  the  various  judicial  interpretations  of  Section  167(2)  for  the
purpose of resolving the dilemma that has arisen in the present case.”
35.As a consequence of the right flowing from the said provision, courts will
have to give due effect to it, and thus any detention beyond this period would
certainly be illegal, being an affront to the liberty of the person concerned.
Therefore, it is not only the duty of the investigating agency but also the
courts to see to it that an accused gets the benefit of Section 167 (2). 
Section 170 of the Code:
“170. Cases to be sent to Magistrate when evidence is sufficient.— (1) If,
upon an investigation under this Chapter, it appears to the officer in charge
of the police station that there is sufficient evidence or reasonable ground as
aforesaid,  such  officer  shall  forward  the  accused  under  custody  to  a
Magistrate  empowered  to  take  cognizance  of the  offence  upon a  police
report and to try the accused or commit him for trial, or, if the offence is
bailable and the accused is able to give security, shall take security from him
for  his  appearance  before  such  Magistrate  on  a  day  fixed  and  for  his
attendance from day to day before such Magistrate until otherwise directed.”
36.The scope and ambit of Section 170 has already been dealt with by this Court
in Siddharth v. State of U.P., (2021) 1 SCC 676. This is a power which is to
be exercised by the court after the completion of the investigation by the
agency concerned. Therefore, this is a procedural compliance from the point
of view of the court alone, and thus the investigating agency has got a limited
role to play. In a case where the prosecution does not require custody of the
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accused, there is no need for an arrest when a case is sent to the magistrate
under Section 170 of the Code. There is not even a need for filing a bail
application, as the accused is merely forwarded to the court for the framing of
charges and issuance of process for trial. If the court is of the view that there
is no need for any remand, then the court can fall back upon Section 88 of the
Code and complete the formalities required to secure the presence of the
accused  for  the  commencement  of  the  trial.  Of  course,  there  may  be  a
situation where a remand may be required, it is only in such cases that the
accused will have to be heard. Therefore, in such a situation, an opportunity
will have to be given to the accused persons, if the court is of the prima facie
view that the remand would be required. We make it clear that we have not
said  anything  on  the  cases  in  which  the  accused  persons  are  already  in
custody, for which, the bail application has to be decided on its own merits.
Suffice it to state that for due compliance of Section 170 of the Code, there is
no need for filing of a bail application. This Court in Siddharth v. State of
U.P., (2021) 1 SCC 676, has held that:
“There  are  judicial  precedents  available  on  the  interpretation  of  the
aforesaid provision albeit of the Delhi High Court.
5. In High Court of Delhi  v. CBI [High Court of Delhi  v. CBI, 2004 SCC
OnLine Del 53 : (2004) 72 DRJ 629], the Delhi High Court dealt with an
argument similar to the contention of the respondent that Section 170 CrPC
prevents the trial court from taking a charge-sheet on record unless the
accused is taken into custody. The relevant extracts are as under : (SCC
OnLine Del paras 15-16 & 19-20)
“15. Word “custody” appearing in this section does not contemplate
either police or judicial custody. It merely connotes the presentation of
accused by the investigating officer before the Court at the time of
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filing of the charge-sheet whereafter the role of the Court starts. Had it
not been so the investigating officer would not have been vested with
powers to release a person on bail in a bailable offence after finding
that there was sufficient evidence to put the accused on trial and it
would have been obligatory upon him to produce such an accused in
custody before the Magistrate for being released on bail by the Court.
16. In case the police/investigating officer thinks it unnecessary to
present the accused in custody for the reason that the accused would
neither  abscond  nor  would  disobey  the  summons  as  he  has  been
cooperating  in  investigation  and  investigation  can  be  completed
without  arresting  him,  the  IO is  not  obliged  to  produce  such  an
accused in custody.
xxx xxx xxx
19. It appears that the learned Special Judge was labouring under a
misconception that in every non-bailable and cognizable offence the
police  is  required  to  invariably  arrest  a  person,  even  if  it  is  not
essential for the purpose of investigation.
20. Rather the law is otherwise. In normal and ordinary course the
police should always avoid arresting a person and sending him to jail,
if it is possible for the police to complete the investigation without his
arrest and if every kind of cooperation is provided by the accused to
the investigating officer in completing the investigation. It is only in
cases  of  utmost  necessity,  where  the  investigation  cannot  be
completed without arresting the person, for instance, a person may be
required for recovery of incriminating articles or weapon of offence or
for eliciting some information or clue as to his accomplices or any
circumstantial evidence, that his arrest may be necessary. Such an
arrest may also be necessary if the investigating officer concerned or
officer  in  charge  of  the  police  station  thinks  that  presence  of  the
accused  will  be  difficult  to  procure  because  of  grave  and  serious
nature of crime as the possibility of his absconding or disobeying the
process or fleeing from justice cannot be ruled out.”
6. In a subsequent judgment the Division Bench of the Delhi High Court
in High Court of Delhi  v. State [High Court of Delhi  v. State, 2018 SCC
OnLine Del 12306 : (2018) 254 DLT 641] relied on these observations
in High Court of Delhi [High Court of Delhi v. CBI, 2004 SCC OnLine Del
53 : (2004) 72 DRJ 629] and observed that it is not essential in every case
involving a cognizable and non-bailable offence that an accused be taken
into custody when the charge-sheet/final report is filed.
7. The Delhi High Court is not alone in having adopted this view and other
High  Courts  apparently  have  also  followed  suit  on  the  proposition  that
criminal courts cannot refuse to accept a charge-sheet simply because the
accused has not been arrested and produced before the court.
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8. In Deendayal  Kishanchand  v. State  of  Gujarat  [Deendayal
Kishanchand v. State of Gujarat, 1982 SCC OnLine Guj 172 : 1983 Cri LJ
1583], the High Court observed as under : (SCC OnLine Guj paras 2 & 8)
“2. … It was the case of the prosecution that two accused i.e. present
Petitioners 4 and 5, who are ladies, were not available to be produced
before the court along with the charge-sheet, even though earlier they
were released on bail. Therefore, as the court refused to accept the
charge-sheet  unless  all  the  accused  are  produced,  the  charge-sheet
could not be submitted, and ultimately also, by a specific letter, it
seems  from  the  record,  the  charge-sheet  was  submitted  without
Accused 4 and 5. This is very clear from the evidence on record.
xxx xxx xxx
8. I must say at this stage that the refusal by criminal courts either
through the learned Magistrate or through their office staff to accept
the  charge-sheet  without  production  of the  accused  persons  is not
justified by any provision of law. Therefore, it should be impressed
upon all the courts that they should accept the charge-sheet whenever
it is produced by the police with any endorsement to be made on the
charge-sheet by the staff or the Magistrate pertaining to any omission
or requirement in the charge-sheet. But when the police submits the
charge-sheet, it is the duty of the court to accept it especially in view
of the provisions of Section 468 of the Code which creates a limitation
of  taking  cognizance  of  offence.  Likewise,  police  authorities  also
should  impress  on  all  police  officers  that  if  charge-sheet  is  not
accepted for any such reason, then attention of the Sessions Judge
should be drawn to these facts and get suitable orders so that such
difficulties would not arise henceforth.”
9. We are in agreement with the aforesaid view of the High Courts and
would like to give our imprimatur to the said judicial view. It has rightly
been observed on consideration of Section 170 CrPC that it does not impose
an obligation on the officer-in-charge to arrest each and every accused at the
time of filing of the charge-sheet. We have, in fact, come across cases where
the accused has cooperated with the investigation throughout and yet on the
charge-sheet  being  filed  non-bailable  warrants  have  been  issued  for  his
production premised on the requirement that there is an obligation to arrest
the accused and produce him before the court. We are of the view that if the
investigating  officer  does  not  believe  that  the  accused  will  abscond  or
disobey summons he/she is not required to be produced in custody. The
word “custody” appearing in Section 170 CrPC does not contemplate either
police or judicial custody but it merely connotes the presentation of the
accused by the investigating officer before the court while filing the charge-
sheet.
10. We  may  note  that  personal  liberty  is  an  important  aspect  of  our
constitutional  mandate.  The  occasion  to  arrest  an  accused  during
investigation arises when custodial investigation becomes necessary or it is
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a heinous crime or where there is a possibility of influencing the witnesses
or accused may abscond. Merely because an arrest can be made because it is
lawful does not mandate that arrest must be made. A distinction must be
made between the existence of the power to arrest and the justification for
exercise of it [Joginder Kumar  v. State of U.P., (1994) 4 SCC 260 : 1994
SCC (Cri) 1172] . If arrest is made routine, it can cause incalculable harm to
the reputation and self-esteem of a person. If the investigating officer has no
reason to believe that the accused will abscond or disobey summons and
has,  in  fact,  throughout  cooperated  with  the  investigation  we  fail  to
appreciate why there should be a compulsion on the officer to arrest the
accused.
11. We are, in fact, faced with a situation where contrary to the observations
in Joginder Kumar case  [Joginder Kumar  v. State of U.P ., (1994) 4 SCC
260 : 1994 SCC (Cri) 1172] how a police officer has to deal with a scenario
of arrest, the trial courts are stated to be insisting on the arrest of an accused
as a prerequisite formality to take the charge-sheet on record in view of the
provisions of Section 170 CrPC. We consider such a course misplaced and
contrary to the very intent of Section 170 CrPC.”
Section 204 and 209 of the Code
“204.  Issue  of  process.—(1)  If  in  the  opinion  of  a  Magistrate  taking
cognizance of an offence there is sufficient ground for proceeding, and the
case appears to be— 
(a) a  summons-case, he shall issue his summons for the attendance of
the accused, or 
(b)  a  warrant-case,  he  may  issue  a  warrant,  or,  if  he  thinks  fit,  a
summons, for causing the accused to be brought or to appear at a certain
time before such Magistrate or (if he has no jurisdiction himself) some
other Magistrate having jurisdiction.”
“209. Commitment of case to Court of Session when offence is triable
exclusively  by  it .—When  in  a  case  instituted  on  a  police  report  or
otherwise, the accused appears or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the Court
of Session, he shall— 
(a)  commit,  after  complying  with  the  provisions  of  section  207  or
section 208, as the case may be, the case to the Court of Session, and
subject  to  the  provisions  of  this  Code  relating  to  bail,  remand  the
accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the
accused to custody during, and until the conclusion of, the trial;”
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37.Section 204 of the Code speaks of issue of process while commencing the
proceeding before the Magistrate. Sub-section (1)(b) gives a discretion to a
Magistrate qua a warrant case, either to issue a warrant or a summons. As this
provision  gives  a  discretion,  and  being  procedural  in  nature,  it  is  to  be
exercised as a matter of course by following the prescription of Section 88 of
the Code. Thus, issuing a warrant may be an exception in which case the
Magistrate will have to give reasons. 
38. Section 209 of the Code pertains to commitment of a case to a Court of
Sessions by the Magistrate when the offence is triable exclusively by the said
court. Sub-sections (a) and (b) of Section 209 of the Code give ample power
to  the  Magistrate  to  remand  a  person  into  custody  during  or  until  the
conclusion of the trial.  Since the power is to be exercised by the Magistrate
on a case-to-case basis, it is his wisdom in either remanding an accused or
granting bail. Even here, it is judicial discretion which the Magistrate has to
exercise. As we have already dealt with the definition of bail, which in simple
parlance  means  a  release  subject  to  the  restrictions  and  conditions,  a
Magistrate can take a call even without an application for bail if he is inclined
to do so. In such a case he can seek a bond or surety, and thus can take
recourse to Section 88. However, if he is to remand the case for the reasons to
be recorded, then the said person has to be heard. Here again, we make it
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clear  that  there  is  no  need  for  a  separate  application  and  Magistrate  is
required to afford an opportunity and to pass a speaking order on bail.  
Section 309 of the Code 
39.This provision has been substituted by Act 13 of 2013 and Act 22 of 2018. It
would be appropriate to reproduce the said provision for better appreciation:
“309. Power to postpone or adjourn proceedings.  —(1) In every inquiry
or trial the proceedings shall be continued from day-to-day until all the
witnesses in attendance have been examined, unless the Court finds the
adjournment of the same beyond the following day to be necessary for
reasons to be recorded:
Provided  that  when  the  inquiry  or  trial  relates  to  an  offence  under
Section 376, [Section 376A, Section 376AB, Section 376B, Section 376C,
Section 376D, Section 376DA or Section 376DB of the Indian Penal Code
(45 of 1860), the inquiry or trial shall] be completed within a period of two
months from the date of filing of the charge sheet.
(2)  If  the  Court,  after  taking  cognizance  of  an  offence,  or
commencement of trial, finds it necessary or advisable to postpone the
commencement of, or adjourn, any inquiry or trial, it may, from time to
time, for reasons to be recorded, postpone or adjourn the same on such
terms as it thinks fit, for such time as it considers reasonable, and may by a
warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody
under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment
or  postponement  shall  be  granted,  without  examining  them,  except  for
special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only
of enabling the accused person to show cause against the sentence proposed
to be imposed on him.
[Provided also that—
(a) no adjournment shall be granted at the request of a party,
except where the circumstances are beyond the control of that
party;
(b) the fact that the pleader of a party is engaged in another
Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader
is  not  present  or the  party  or  his pleader  though  present  in
Court, is not ready to examine or cross-examine the witness, the
Court may, if thinks fit, record the statement of the witness and
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pass  such  orders  as  it  thinks  fit  dispensing  with  the
examination-in-chief or cross-examination of the witness, as the
case may be.]
Explanation 1.—If  sufficient  evidence  has  been  obtained  to  raise  a
suspicion that the accused may have committed an offence, and it appears
likely  that  further  evidence  may  be  obtained  by  a  remand,  this  is  a
reasonable cause for a remand.
Explanation 2.—The terms on which an adjournment or postponement may
be  granted  include,  in  appropriate  cases,  the  payment  of  costs  by  the
prosecution or the accused.”
40.Sub-section (1) mandates courts to continue the proceedings on a day-to-day
basis till the completion of the evidence. Therefore, once a trial starts, it
should reach the logical end. Various directions have been issued by this
Court not to give unnecessary adjournments resulting in the witnesses being
won over. However, the non-compliance of Section 309 continues with gay
abandon. Perhaps courts alone cannot be faulted as there are multiple reasons
that lead to such adjournments. Though the section makes adjournments and
that too not for a longer time period as an exception, they become the norm.
We are touching upon this provision only to show that any delay on the part
of the court or the prosecution would certainly violate Article 21. This is
more so when the accused person is under incarceration. This provision must
be  applied  inuring  to  the  benefit  of  the  accused  while  considering  the
application for bail. Whatever may be the nature of the offence, a prolonged
trial, appeal or a revision against an accused or a convict under custody or
incarceration, would be violative of Article 21. While the courts will have to
endeavour to complete at least the recording of the evidence of the private
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witnesses, as indicated by this Court on quite a few occasions, they shall
make sure that the accused does not suffer for the delay occasioned due to no
fault of his own.
41.Sub-section (2) has to be read along with sub-section (1). The proviso to
sub-section (2) restricts the period of remand to a maximum of 15 days at a
time. The second proviso prohibits an adjournment when the witnesses are in
attendance  except  for  special  reasons,  which  are  to  be  recorded.  Certain
reasons for seeking adjournment are held to be permissible. One must read
this provision from the point of view of the dispensation of justice. After all,
right to a fair and speedy trial is yet another facet of Article 21. Therefore,
while it is expected of the court to comply with Section 309 of the Code to
the  extent  possible,  an  unexplained,  avoidable  and  prolonged  delay  in
concluding a trial, appeal or revision would certainly be a factor for the
consideration  of  bail.  This  we  hold  so  notwithstanding  the  beneficial
provision  under  Section  436A of  the  Code  which  stands  on  a  different
footing. 
Precedents:
 Hussainara Khatoon & Ors. v Home Secretary, State Of Bihar, 1980
(1) SCC 81:
“2. Though we issued notice to the State of Bihar two weeks ago, it is
unfortunate that on February 5, 1979, no one has appeared on behalf of the
State and we must, therefore, at this stage proceed on the basis that the
allegations contained in the issues of the Indian Express dated January 8
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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
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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
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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
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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
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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:
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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.
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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].
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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
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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.
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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
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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. 
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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
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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. 
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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
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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.”
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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 non-
bailable 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
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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
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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 non-
bailable 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
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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
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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 -
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“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
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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."
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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
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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
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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 sub-
section (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
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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
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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
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“[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
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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
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with on a case-to-case basis again keeping in view the general principle of
law and the provisions, as discussed by us. 
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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.
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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
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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.
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(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
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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
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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
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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.
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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
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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. Post-
Independence, 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
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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
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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 pre-
independence  one  with  its  modifications.  We  hope  and  trust  that  the
Government of India would look into the suggestion made in right earnest.
SUMMARY/CONCLUSION
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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 2017 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.
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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. 
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74.The Registry is directed to send copy of this judgment to the Government of
India and all the State Governments/Union Territories.
75.As such,  M.A.  1849 of 2021  is disposed  of in  the aforesaid  terms.  I.A.
No.51315 of 2022, application for intervention is allowed. I.A. Nos. 164761
of 2021, 148421 of 2021 and M.A. Diary No.29164 of 2021 (I.A.No.154863
of 2021), applications for clarification/direction are also disposed of. List for
compliance after a period of four months from today.
…….………………………J.
(SANJAY KISHAN KAUL)
……………………………J.
                      (M.M. SUNDRESH)
New Delhi
July 11, 2022
85