Supreme Court of India
SATENDER KUMAR ANTILversusCENTRAL BUREAU OF INVESTIGATION & ANR.
- Citation
- 2022 INSC 690
- Decided
- 11 July 2022
- Disposal
- Disposed off
- Bench
- SANJAY KISHAN KAUL
Holding
Non‑compliance with Sections 41 and 41A of the CrPC entitles the accused to bail, and courts must ensure such compliance before authorising any detention, subject to the detailed procedural guidelines issued.
Summary
The Supreme Court addressed a series of applications concerning bail procedures, directing that any non‑compliance with Sections 41 and 41A of the Code of Criminal Procedure (CrPC) automatically entitles the accused to bail. It emphasized that courts must verify compliance with these sections before authorising detention and that bail applications under Sections 88, 170, 204 and 209 need not be insisted upon separately. The Court issued comprehensive guidelines categorising offences, prescribing timelines for disposal of bail applications, and mandating the release of under‑trial prisoners detained beyond half the maximum sentence under Section 436A. It also directed State and Union Territory governments to establish standing orders, fill vacancies in special courts, and consider a separate Bail Act to streamline bail grant, while reaffirming the constitutional principles of liberty under Articles 21 and 22.
Issues considered
- The effect of non‑compliance with Section 41 of the CrPC on the grant of bail
- Whether courts must satisfy themselves of compliance with Section 41A before authorising detention
- The necessity of filing a separate bail application when proceedings are under Sections 88, 170, 204 and 209
- The appropriate timelines for disposal of regular and anticipatory bail applications
- The applicability of Section 436A for release of under‑trial prisoners detained beyond half the maximum punishment
- The need for special courts and the filling of vacancies therein
- The classification of economic offences for bail considerations
- The desirability of a separate Bail Act in India
Legislation cited
- Code of Criminal Procedure, 1973s. 167(2), s. 170, s. 204, s. 209, s. 309, s. 389, s. 41, s. 41A, s. 436A, s. 437, s. 439, s. 440, s. 60A, s. 88
- Companies Acts. 212(6)
- Narcotic Drugs and Psychotropic Substances Acts. 37
- Prevention of Money Laundering Act, 2002s. 45
- Unlawful Activities (Prevention) Acts. 43D(5)
Subjects
bailSection 41 CrPCSection 41A CrPCunder‑trial prisonersspeedy trialpresumption of innocenceArticle 21special courtseconomic offencesbail guidelinescriminal procedure
Judgment
[2022] 10 S.C.R. 351 351
SATENDER KUMAR ANTIL A
v.
CENTRAL BUREAU OF INVESTIGATION & ANR.
(Miscellaneous Application No.1849 of 2021)
JULY 11, 2022 B
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Bail – Grant of – Code of Criminal Procedure, 1973 – ss. 41,
41A, 88, 170, 204 and 209 – Constitution of India – Arts. 21 & 22
– Applications have been filed seeking certain directions/
C
clarifications, to deal with the aspects governing the grant of bail –
Held: 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 bail – While considering the application for enlargement
on bail, Courts will have to satisfy themselves on the due compliance
of sec. 41 of CrPC – Any non-compliance would entitle the accused D
to a grant of bail – Section 41 and 41A are facets of Article 21 of
the Constitution – The directions of Arnesh Kumar v. State of Bihar
ought to be complied with in letter and spirit by the investigating
and prosecuting agencies – While the view expressed by the Supreme
Court on the non-compliance of Section 41 and the consequences
E
that flow from it has to be kept in mind by the Court, which is
expected to be reflected in the orders – To take care of not only the
unwarranted arrests, but also the clogging of bail applications
before various Courts, all the State Governments and the Union
Territories directed to facilitate standing orders, to comply with the
mandate of Section 41A – There need not be any insistence of a F
bail application while considering the application u/ss. 88, 170,
204 and 209 of the Code.
Code of Criminal Procedure, 1973 – Special Courts –
Constitution of – The State and Central Governments will have to
comply with the directions issued by Supreme Court from time to G
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
351
352 SUPREME COURT REPORTS [2022] 10 S.C.R.
A Code of Criminal Procedure, 1973 – ss. 436A, 440 –
Undertrial Prisoners – The statistics placed before the Court
indicated that more than 2/3rd of the inmates of the prisons 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
B
seven years or less – 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 sec. 440, facilitating the release –
While insisting upon sureties the mandate of sec. 440 of the Code
C has to be kept in mind – An exercise will have to be done in a
similar manner to comply with the mandate of sec. 436A both at the
district judiciary level and the High Court as earlier directed by
this Court in Bhim Singh, followed by appropriate orders.
Code of Criminal Procedure, 1973 – Bail Application –
D Disposal of – Timeframe – 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.
E
Code of Criminal Procedure, 1973 – Sec. 167(2) – Object
and presumption under – It 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 Art. 21
F – Presumption of innocence is also inbuilt in this provision – The
right enshrined is an absolute and indefeasible one, inuring to the
benefit of suspect – 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 – Such a right cannot be taken away
even during any unforeseen circumstances – As a consequence of
G
the right flowing from Sec.167(2), 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
H 167 (2).
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 353
INVESTIGATION & ANR.
Code of Criminal Procedure, 1973 – Sec. 170 – Scope and A
ambit – A power which is to be exercised by the court after the
completion of the investigation – In a case where the prosecution
does not require custody of the accused, there is no need for an
arrest when a case is sent to the magistrate u/s. 170 – There is not
even a need for filing a bail application, as the accused is merely
B
forwarded to the court for the framing of charges and issuance of
process for trial – However, cases in which the accused persons
are already in custody, then, the bail application has to be decided
on its own merits – There needs to be Strict Complanace of he
mandate laid down in Siddharth v. State of U.P.
Code of Criminal Procedure, 1973 – ss. 88 & 204 – s. 204 C
gives a discretion to a Magistrate, and being procedural in nature,
it is to be exercised as a matter of course by following the prescription
of sec. 88 – Thus, issuing a warrant may be an exception in which
case the Magistrate will have to give reasons.
Code of Criminal Procedure, 1973 – s. 209 – It gives ample D
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 – A Magistrate can E
take a call even without an application for bail if he is inclined to
do so.
Code of Criminal Procedure, 1973 – sec. 309 – Bail – It
mandates courts to continue the proceedings on a day-to-day basis
till the completion of the evidence – Any delay on the part of the F
court or the prosecution would certainly violate Art. 21 – Courts
shall make sure that the accused does not suffer for the delay
occasioned due to no fault of his own – Therefore, while it is
expected of the court to comply with sec. 309 to the extent possible,
an unexplained, avoidable and prolonged delay in concluding a
trial, appeal or revision would certainly be a factor for the G
consideration of bail.
Code of Criminal Procedure, 1973 – sec. 389 – Bail – It
concerns itself with circumstances pending appeal leading to the
release of the appellant on bail – The power exercisable u/s. 389 is
H
354 SUPREME COURT REPORTS [2022] 10 S.C.R.
A different from that of the one either u/ss. 437 or 439, 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 – However, delay in taking up
the main appeal or revision coupled with the benefit conferred u/s.
B
436A of the Code among other factors ought to be considered for a
favourable release on bail.
Code of Criminal Procedure, 1973 – sec. 436A – In a case
where an appeal is pending for a longer time, to bring it u/s. 436A,
the period of incarceration in all forms will have to be reckoned,
C and so also for the revision – 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 – There is not
even a need for a bail application in a case of this nature
D particularly when the reasons for delay are not attributable against
the accused.
Code of Criminal Procedure, 1973 – sec. 437 – It empowers
the Magistrate to deal with all the offenses while considering an
application for bail with the exception of an offense punishable
E either with life imprisonment or death triable exclusively by the Court
of Sessions.
Code of Criminal Procedure, 1973 – sec. 440 – The amount
of every bond executed is to be fixed with regard to the circumstances
of the case and shall not be excessive – Reasonableness of the
F 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 u/s. 88 also the said factum has to be kept in mind –
Imposing a condition which is impossible of compliance would be
defeating the very object of the release.
G Code of Criminal Procedure, 1973 – ss. 436A, 309 167(2),
440 – Special Acts – The general principle governing delay would
apply to Special Acts also – To make it clear, the provision contained
in sec. 436A would apply to the Special Acts also in the absence of
any specific provision – There is a need to comply with the directions
of this Court to expedite the process and also a stricter compliance
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 355
INVESTIGATION & ANR.
of Sec. 309 – The existence of a pari materia or a similar provision A
like sec.167(2) 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 u/s. 440.
Bail – Whether Economic Offences should be treated as a
class of its own or otherwise – The gravity of the offence, the object B
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 C
basis.
Practice and Procedures – Criminal Trial – Approach of the
Court - Criminal courts in general with the trial court in particular
are the guardian angels of liberty - Any conscious failure by the
Criminal Courts would constitute an affront to liberty - It is the D
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 uphold the constitutional thrust with
responsibility mandated on them by acting akin to a high priest.
Bail Application – Judicial Dispensation - Courts tend to think E
that the possibility of a conviction being nearer to rarity, bail
applications will have to be decided strictly, contrary to legal
principles – The Court 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 F
with continued custody would be a case of grave injustice –
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 one would be a grave G
affront to Arts. 14 and 15 of the Constitution of India.
Code of Criminal Procedure, 1973 – Trial - Defined - An
extended meaning has to be given to this word for the purpose of
enlargement on bail to include, the stage of investigation and
H
356 SUPREME COURT REPORTS [2022] 10 S.C.R.
A thereafter - 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 - 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.
B
Code of Criminal Procedure, 1973 – Bail – Defined - 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 - It is a
conditional release on the solemn undertaking by the suspect that
C he would cooperate both with the investigation and the trial - Bail
is the rule and jail is the exception.
Presumption of innocence - Onus on the prosecution to prove
the guilt before the Court - Presumption of innocence being a facet
of Article 21, shall inure to the benefit of the accused – The weightage
D of the evidence has to be assessed on the principle of beyond
reasonable doubt.
Disposing of the applications, the Court
HELD: 1. These directions are meant for the investigating
E agencies and also for the courts. Accordingly, the Court 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
F 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.
Any dereliction on their part has to be brought to the notice of
the higher authorities by the court followed by appropriate action.
G
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
H are directed to facilitate standing orders for the procedure to be
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 357
INVESTIGATION & ANR.
followed under Section 41 and 41A of the Code while taking note A
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 B
while considering the application under Section 88, 170, 204 and
209 of the Code.
f.) There needs to be a strict compliance of the mandate
laid down in the judgment of this court in Siddharth.
g.) The State and Central Governments will have to comply C
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 D
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 E
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 F
district judiciary level and the High Court as earlier directed by
this Court in Bhim Singh, 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 G
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. [Para 73][445-F-G; 446-A-H; 447-A-C] H
358 SUPREME COURT REPORTS [2022] 10 S.C.R.
A Nikesh Tarachand Shah v. Union of India (2018) 11
SCC 1 : [2017] 12 SCR 358; Sanjay Chandra v. CBI
(2012) 1 SCC 40 : [2011] 13 SCR 309; Corey Lee
James Myers v. Her Majesty the Queen 2019 SCC 18;
Her Majesty the Queen v. Kevin Antic and Ors. 2017
SCC 27; Arnesh Kumar v. State of Bihar (2014) 8 SCC
B
273 : [2014] 8 SCR 128; Inder Mohan Goswami v. State
of Uttaranchal (2007) 12 SCC 1 : [2007] 10 SCR 847;
Pankaj Jain v. Union of India (2018) 5 SCC 743 :
[2018] 9 SCR 248; M. Ravindran v. Directorate of
Revenue Intelligence (2021) 2 SCC 485; Siddharth v.
C State of U.P. (2021) 1 SCC 676; Hussainara Khatoon
& Ors. v Home Secretary, State of Bihar, 1980 (1) SCC
81 : [1979] 3 SCR 169; Hussain & Anr. v. Union of
India & Ors. 2017 (5) SCC 702 : [2017] 2 SCR 626;
Surinder Singh @ Shingara Singh v State of Punjab
2005 (7) SCC 387 : [2005] 2 Suppl. SCR 1172; Atul
D
Tripathi v State of U.P. & Anr. 2014 (9) SCC 177 :
[2014] 14 SCR 1188; Angana v. State of Rajasthan
(2009) 3 SCC 767 : [2009] 1 SCR 941; Sunil Kumar v.
Vipin Kumar (2014) 8 SCC 868; Bhim Singh v. Union
of India (2015) 13 SCC 605; Prahlad Singh Bhati v.
E NCT, Delhi (2001) 4 SCC 280 : [2001] 2 SCR 684;
The Balasaheb Satbhai Merchant Coop Bank Ltd. vs.
The State of Maharashtra and Ors. 2011 SCC OnLine
Bom 1261; In re Kenneth Humphrey, S 247278; 482
P.3d 1008 (2021); Union of India v. K.A. Najeeb (2021)
3 SCC 713; Supreme Court Legal Aid Committee v.
F
Union of India (1994) 6 SCC 731 : [1994] 4 Suppl.
SCR 386; P. Chidambaram v. Directorate of Enforcement
(2020) 13 SCC 791 : [2019] 14 SCR 450; Sanjay
Chandra v. CBI (2012) 1 SCC 40 : [2011] 13 SCR 309;
Arnab Manoranjan Goswami v. State of Maharashtra
G (2021) 2 SCC 427 – referred to
Case Law Reference
[2017] 12 SCR 358 referred to Para 11
[2011] 13 SCR 309 referred to Para 12
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 359
INVESTIGATION & ANR.
(2019) SCC 18 referred to Para 16 A
(2017) SCC 27 referred to Para 16
[2014] 8 SCR 128 referred to Para 25
[2007] 10 SCR 847 referred to Para 32
[2018] 9 SCR 248 referred to Para 32 B
(2021) 2 SCC 485 referred to Para 36
(2021) 1 SCC 676 referred to Para 36
[1979] 3 SCR 169 referred to Para 41
C
[2017] 2 SCR 626 referred to Para 41
[2005] 2 Suppl. SCR 1172 referred to Para 41
[2014] 14 SCR 1188 referred to Para 44
[2009] 1 SCR 941 referred to Para 44
D
(2014) 8 SCC 868 referred to Para 44
(2015) 13 SCC 605 referred to Para 47
[2001] 2 SCR 684 referred to Para 53
(2021) 3 SCC 713 referred to Para 64
E
[1994] 4 Suppl. SCR 386 referred to Para 64
[2019] 14 SCR 450 referred to Para 66
[2011] 13 SCR 309 referred to Para 66
(2021) 2 SCC 427 referred to Para 68 F
CRIMINAL APPELLATE JURISDICTION : Miscellaneous
Application No.1849 of 2021. In Special Leave Petition (Crl.) No.5191
of 2021
From the Judgment and Order dated 01.07.2021 of the High Court
of Judicature at Allahabad CRIMINAL MISC. ANTICIPATORY BAIL G
No.7598 of 2021.
With
Miscellaneous Application Diary No.29164 of 2021 In Special
Leave Petition (Crl.) No.5191 of 2021
H
360 SUPREME COURT REPORTS [2022] 10 S.C.R.
A S. V. Raju, ASG, Sidharth Luthra, Amit Desai, Sr. Advs., Chirag
Madan, Hardik Rupal, Ms. Shubhangi Jain, Ayush Kaushik, Lakshay
Mehta, Shashank Gaurav, Akbar Siddique, Ms. Anzu K. Varkey, Ms.
Sairica Raju, Ms. Annam Venkatesh, Ms. Priyanka Das, Om Prakash
Shukla, Mohammed Akhil, Udai Khanna, Ritwiz Rishabh, Anshuman
Singh, Ankit Bhatia, Harsh Paul Singh, Arvind Kumar Sharma, Gautam
B
Awasthi, Amit K. Nain, Ms. Stuti Gujral, Ms. Priti Verma, Ms. Saushriya
Havelia, Sahil Ghai, Ms. Priyashree Sharma PH, Syed Faraz Alam, Kush
Chaturvedi, Arjun Garg, S. Mahesh Sahasranaman, Gopalkrishna Shenoy,
Rohan Dakshini, Ms. Pooja Kothari, Ashwin Thool, Pratik Rajopadhyay,
Aakash Nandolia, Ms. Sagun Srivastava, Mahesh Agarwal, Arshit Anand,
C Nishant Rao, E. C. Agrawala, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
“Liberty is one of the most essential requirements of the modern
man. It is said to be the delicate fruit of a mature civilization. It is the
D very quintessence of civilized existence and essential requirement of a
modern man”
- John E.E.D. in “Essays on Freedom and Power”
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
E 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
F
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
G 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
H guidelines are as under:
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 361
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
Categories/Types of Offences A
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.
B
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 C
1) Not arrested during investigation.
2) Cooperated throughout in the investigation including appearing
before Investigating Officer whenever called.
(No need to forward such an accused along with the chargesheet D
(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 E
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. F
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. G
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
H
362 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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,
B 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
C 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
D 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
E 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.
The suggestions of learned ASG which we have adopted have
F 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:
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 363
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
but simultaneously, the severity of the punishment imposed by the A
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. B
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, C
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, D
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 E
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 F
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 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 G
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 H
364 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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.
D PREVAILING SITUATION
5. Jails in India are flooded with undertrial prisoners. The statistics
placed before us would indicate that more than 2/3rd of the inmates of
the prisons constitute undertrial prisoners. Of this category of prisoners,
majority may not even be required to be arrested despite registration of
E 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,
F 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
G
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
H substantially is the proceedings before the Court in the form of a trial. If
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 365
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
we keep the above distinction in mind, the consequence to be drawn is A
for a more favourable consideration towards enlargement when
investigation is completed, of course, among other factors.
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. B
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. C
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: - D
“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: -
E
“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
F
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. G
This again is on the touchstone of Article 21 of the Constitution of India.
This court in Nikesh Tarachand Shah v. Union of India, (2018) 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) H
366 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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,
B 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
C 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
D 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
E 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
F 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
G 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
H granted but not in other classes. It was observed that the
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 367
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
principle to be deduced from the various sections in the Criminal A
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
B
to look after his own case. A presumably innocent person must
have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J.,
in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu
v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC
p. 242, para 1) C
‘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 D
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) E
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 F
cancelling bail.’
30. In AMERICAN JURISPRUDENCE (2nd, Vol. 8, p. 806,
para 39), it is stated:
‘Where the granting of bail lies within the discretion of the
G
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.’ H
368 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.”
B 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
C 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].”
D
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
E 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
F 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
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 369
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
tamper with the witnesses if left at liberty, save in the most A
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 B
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 C
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 D
Rights, 1966 and Article 11 of the Universal Declaration of Human Rights
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 E
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 F
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 G
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
H
370 SUPREME COURT REPORTS [2022] 10 S.C.R.
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
B
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
C 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 granting release. Alternative forms of
D 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
E 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
F 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
G 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
H satisfy the concern that would otherwise warrant detention and
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 371
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
proportionate to the means of the accused and the circumstances A
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
B
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 C
enlargement on bail, courtshave 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
standof the courts, including this Court, that presumption of innocence,
being a facet of Article 21, shall inure to the benefit of the accused. D
Resultantly burden is placed on the prosecution to prove the charges to
the court of law. The weightage of the evidence has to be assessed on
the principle of beyond reasonable doubt.
PROVISIONS OF THE CODE OF CRIMINAL
PROCEDURE E
“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 F
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. G
Section 41, 41A and 60Aof the Code
CHAPTER V
ARREST OF PERSONS
H
372 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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;
B (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,
C 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
D 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
E
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
F 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
G 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.
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 373
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
(ba) against whom credible information has been A
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
B
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
C
(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
D
(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 E
(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, F
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
G
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
H
374 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
B
(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.
C
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
D 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.
E
(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.
F (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
G
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.”
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 375
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
21. Section 41 under Chapter V of the Code deals with the arrest A
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
B
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 makingany inducement, threat, or C
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.
D
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. E
23. The consequence ofnon-compliance with Section 41 shall
certainly inureto the benefit of the person suspected of the offense.
Resultantly, while considering the application for enlargement on bail,
courts will have to satisfy themselves on the due compliance of this
provision. Any non-compliance would entitle the accused toa grant of F
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
G
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
H
376 SUPREME COURT REPORTS [2022] 10 S.C.R.
A elaborate any further, in 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
B 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
C 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;
D 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
E 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
F 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
G 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
H and Section 57 CrPC to be produced before the Magistrate without
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 377
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
unnecessary delay and in no circumstances beyond 24 hours A
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 B
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 exercised with the seriousness
it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner.
C
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 D
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 E
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 F
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 G
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. H
378 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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
D 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
E an order from a Magistrate and without a warrant are scrupulously
enforced, the wrong 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
F 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
G 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
H Section 41 CrPC;
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 379
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
11.2. All police officers be provided with a check list containing A
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; B
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 C
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 D
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 E
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 F
aforesaid by the Judicial Magistrate concerned shall be liable
for departmental action by the appropriate High Court.
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 G
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 H
380 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D by order dated 28.10.2021 in Contempt Case (C) No. 480 of 2020 &
CM Application No. 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.,
E 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
F 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
G 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
H as they may not even be required for the offences up to seven years.
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 381
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
30. We also expect the courts to come down heavily on the officers A
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
B
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 Codewhich warrants the officer
concerned to make the arrest strictly in accordance with the Code.
Section 87 and 88 ofthe Code
C
“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—
D
(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 E
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 F
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.”
31. When the courts seek the attendance of aperson, either a G
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 H
382 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D 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 inalienable
right of every human being. Similarly, Article 21 of our Constitution
E 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
F 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
G 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
H have the desired result. This could be when:
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 383
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
• it is reasonable to believe that the person will not voluntarily A
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. B
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, C
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 D
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 E
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 F
both personal 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 G
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.”
H
384 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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:
D “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
E 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
F 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
G
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 Section 88 “any person” has to be given wide
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 385
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
meaning, which may include persons, who are not even accused A
in a case and appeared as witnesses.”
Section 167(2)of the Code
167. Procedure when investigation cannot be completed in
twenty-four hours.—
B
(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 C
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— D
(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
E
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 F
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; G
(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
H
386 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B custody of the police.
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.
C 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
D 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.”
E 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.
F 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
G 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
H Personal Liberty
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 387
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
17. Before we proceed to expand upon the parameters of the A
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
B
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 C
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 D
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 E
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 F
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 G
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 H
388 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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 (Vol. II, 1948, pp.
B
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
C 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 after the expiry of 15 days, in a manner that
“while meeting the needs of a full and proper investigation in
D 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
E 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 (Vol. I, 1969, pp. 76-77). The Law Commission
re-emphasised the need to guard against the misuse of Section
F 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
G 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.
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 389
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
17.5. The suggestions made in Report No. 41 were taken note of A
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
B
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 C
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 D
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 E
offence committed, failing which the accused acquires the
indefeasible right to bail. As is evident from 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 F
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 G
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 H
390 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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)
C 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
D
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
E 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)
F “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
G 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. …
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 391
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
xxx xxx xxx A
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 B
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. C
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 D
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) E
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 : F
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
G
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
H
392 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
B 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 indigent
C 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
D 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
E 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 170of the Code:
F “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
G 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.”
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 393
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
36. The scope and ambit of Section 170 has already been dealt A
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
B
prosecution does not require custody of the accused, there is no need
for an arrest when a case is sent to the magistrate under Section 170of
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 88of the C
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
D
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 170of the Code, there is no need for filing of a bail application.
This Court in Siddharth v. State of U.P., (2021) 1 SCC 676, has held E
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 F
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) G
“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 filing of the charge-sheet whereafter
the role of the Court starts. Had it not been so the investigating H
394 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
B
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
C 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
D 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
E 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
F 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
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 395
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
641] relied on these observations in High Court of Delhi [High A
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 B
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.
8. In Deendayal Kishanchand v. State of Gujarat [Deendayal C
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 D
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 E
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
F
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 G
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
H
396 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D 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
E our constitutional mandate. The occasion to arrest an accused
during investigation arises when custodial investigation becomes
necessary or it is 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
F 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
G 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
H observations in Joginder Kumar case [Joginder Kumar v. State
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 397
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] how a police A
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.”
B
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 C
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 D
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 E
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 F
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;” G
37. Section 204of 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 H
398 SUPREME COURT REPORTS [2022] 10 S.C.R.
A the prescription of Section 88of the Code. Thus, issuing a warrant may
be an exception in which case the Magistrate will have to give reasons.
38. Section 209of 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 209of the Code
B 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
C 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 clear that there is no
D need for a separate application and Magistrate is required to afford an
opportunity and to pass a speaking order on bail.
Section 309of 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
E 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
F 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
G 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,
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 399
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
from time to time, for reasons to be recorded, postpone or adjourn A
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 B
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 C
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, D
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 E
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 pass such orders as it thinks fit dispensing
with the examination-in-chief or cross-examination of the
F
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.
G
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 aday-to-day basis till the completion of the evidence. Therefore, once H
400 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
309continues 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
B
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
C 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 witnesses, as indicated by this Court on quite a few occasions,
they shall make sure that the accused does not suffer for the delay
D
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 areto
E 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
F 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:
G • 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 401
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
stage proceed on the basis that the allegations contained in the A
issues of the Indian Express dated January 8 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
B
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 C
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
D
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 E
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)
F
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 G
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 H
402 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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
D
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 debts for securing their release or, being unable to obtain
release, they have to remain in jail until such time as the court
E 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
F
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
G 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:
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 403
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
The bail system, as we see it administered in the criminal A
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
B
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 C
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
D
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 E
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 F
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 G
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
H
404 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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 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
B
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
C 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.
D 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
E 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
F 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.
G 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....
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 405
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
The bail system, as it operates today, is a source of great hardship A
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
B
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 C
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 D
of bail and the accused should in appropriate cases be released
on his personal bond without monetary 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 E
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 F
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 G
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,
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406 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D
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,
E 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
F
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
G 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 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 407
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
be an individualised decision depending on the individual A
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
B
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 C
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.
D
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 E
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
F
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. G
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 H
408 SUPREME COURT REPORTS [2022] 10 S.C.R.
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,
B
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.
C So also Article 3 of the European Convention on Human Rights
provides that:
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
D 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
E 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
F 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
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 409
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
and essential part of the fundamental right to life and liberty A
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
B
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 C
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
D
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 E
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: F
“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. The Chief Justices and
Chief Ministers have resolved that all cases must be disposed G
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
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410 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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—
D
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
E 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
F 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
G 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
H custody for more than five years are concluded at the earliest;
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 411
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
29.3. The High Courts may prepare, issue and monitor A
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 B
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].
30. Accordingly, we request the Chief Justices of all the High
Courts to forthwith take appropriate steps consistent with the C
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 D
(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 E
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 F
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.” G
• 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
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412 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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
D
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
E 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 on the basis that once a person has
been found guilty and sentenced to life imprisonment, he
F 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
G 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
H compensate him for his incarceration which is found to be
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 413
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
unjustified? Would it be just at all for the Court to tell a 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
B
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 C
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
D
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 E
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 F
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 G
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 H
414 SUPREME COURT REPORTS [2022] 10 S.C.R.
A attempt to lay down any invariable rule or formula in such
matters.
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
B [(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
C 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
D 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
E 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.”
F 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
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 415
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
opportunity to the Public Prosecutor for showing cause in writing A
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 B
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, — C
(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 D
convicted person be released on bail, unless there are special
reasons for refusing bail, for 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. E
(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.”
F
42. Section 389of 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 437or under Section 439of the Code, pending trial. This is
for the reasonthat”presumption of innocence” and “bail is the rule and
jail is the exception” may not be available to the appellant who hassuffered G
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 H
416 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B revision coupled with the benefit conferred under Section 436A of the
Code among other factors ought to be consideredfor a favourable release
on bail.
Precedents:
• Atul Tripathi vs State of U.P. &Anr., 2014 (9) SCC 177:
C
“13. It may be seen that there is a marked difference 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
D 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
E 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
F
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
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 417
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
to ensure transparency, to ensure that there is no allegation of A
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: B
“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 C
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 D
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 E
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 F
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 G
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.”
H
418 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D 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
E the said offence under that law.
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 436Aof the Code has been inserted by Act 25 of
F 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
G 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
H specified for that offense, he shall be released by the court on his personal
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 419
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
bond with or without sureties. The word ‘shall’ clearly denotes the A
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
B
need for continued detention longer than one-half 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 asubstantive one, facilitating liberty, C
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:
D
“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. E
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 F
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
G
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
H
420 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
order to all Sessions Judges within his State for necessary
compliance.”
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
C 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
D
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
E 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
F 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
G 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
H it is just and proper so to do for any other special reason:
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 421
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
Provided also that the mere fact that an accused person may A
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:]
B
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.
C
(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 shall,
subject to the provisions of section 446A and pending such D
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 E
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,— F
(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 G
(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 H
422 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
B (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
C 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.
D (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
E 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 madethe following famous
statement in”The World’s Famous Orations”authored by Bryan, William
Jennings, published by New York: Funk and Wagnalls Company, 1906:
F
“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
G 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
H substitute will in the place of it is an enemy to God.”
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 423
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
50. Section 437of the Code is a provision dealing with bail in case A
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
B
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 437of the Code mandates that when the
accused is under the age of sixteen years, sick or infirm or being a C
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 takennote of the fact that many women
who commit cognizable offensesare poor and illiterate.In many cases, D
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 E
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 F
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 G
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 H
424 SUPREME COURT REPORTS [2022] 10 S.C.R.
A offense punishable with either 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
B
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
C 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
D 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
E 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
F 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 -
G “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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 425
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
Magistrate cannot grant bail under Section 437(1) Cr.P.C., A
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
B
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 C
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
D
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 E
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
F
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:- G
“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 H
426 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
interpreting the phrase “an offence punishable with death
or transportation for life” in Section 497 Cr.P.C. 1898.
But that case was dissented from in Mahammed Eusoof v.
Emperor, AIR 1926 Rang 51 : (1926) 27 Cri LJ 401). The
Rangoon High Court held that the prohibition against
C 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
D
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
E 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,
F 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
G 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
H pay a material price, however, exorbitant, for life.”
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 427
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
The above decision has been followed by the Nagpur High A
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 B
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.” C
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 D
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 E
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 F
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 G
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.
H
428 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D 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
E 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
F the 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
G death sentence, has got ample jurisdiction to consider the release on
bail.
Section 439of the Code
“439. Special powers of High Court or Court of Session
regarding bail.—
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 429
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
(1) A High Court or Court of Session may direct— A
(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
(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 C
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 D
(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 439confers a power upon the High Court or a Court
E
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 Codeor in a 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.
F
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 G
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 Codeempowers the Magistrate to deal with
all the offenses while considering an application for bail with the exception H
430 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
or the High Court, as the case may be. The power under Section 439 of
the Codeis exercised against an order rejecting an application for bail
and against an offence exclusively decided by 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
C 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.
D
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.
E (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.
F
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
G 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 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.
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 431
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
61. When such an onerous condition was challenged on the premise A
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 inIn re Kenneth Humphrey, S247278;
482 P.3d 1008 (2021), was pleased to hold that the very objective is lost
B
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.
C
….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 D
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 E
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 F
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 “[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.)
G
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
H
432 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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.
C 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
D 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
E 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
F also the said factum has to be kept in mind. This Court in 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
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 433
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
be the amount of security required or the monetary obligation A
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
B
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 C
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 D
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 E
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 F
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 with on a case-to-case basis again
keeping in view the general principle of law and the provisions,as G
discussed by us.
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 H
434 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C
• 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
D 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,
E 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
F tasked with deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely trial would
not be possible and the accused has suffered incarceration for
a significant period of time, the courts would ordinarily be
obligated to enlarge them on bail.”
G • 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 435
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
be forthwith released from jail declaring their further detention A
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
B
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, C
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
D
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 E
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
F
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 G
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
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436 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
have to be satisfied 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
C 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 :
D
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
E 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
F
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
G 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
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SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 437
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
prosecutions and set free the accused persons whose trials A
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
B
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 C
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 D
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. E
(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 F
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 G
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
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438 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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:
B (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
C 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
D 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
E 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)
F 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,
G the Special Judge shall, besides impounding their
passports, insist on a certificate of assurance from the
Embassy/High 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;
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 439
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
(v) the undertrial accused shall not leave the area in A
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 B
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 C
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 D
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 E
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 F
would apply to these cases also. To clarify this position, we may hold
that if an accused is already underincarceration, 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 G
the court. Similarly, we would also add that the existence of a parimateria
or a similar provision like Section 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.
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440 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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,
B (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
C 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
D • 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
E 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 required to be kept in view by the Court. The
gravity for the said purpose will have to be gathered from the
F 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
G 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
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 441
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
which is in addition to the triple test or the tripod test that would A
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
B
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 C
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 D
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 E
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 F
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, G
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 H
442 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
B 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
C 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
D 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
E 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
F 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
G 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 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:
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 443
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
“67. Human liberty is a precious constitutional value, which is A
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
B
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 C
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
D
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. E
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
F
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 G
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
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444 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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 Supreme Court—to ensure that the criminal law does not
C 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
D
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)
E
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:
F
“General right to bail of accused persons and others.
4.-(l) A person to whom this section applies shall be granted
bailexcept as provided in Schedule 1 to this Act.”
70. Even other than the aforesaid provision, the enactmentdoes
G 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
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SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 445
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
shall never be treated differently either by the same court or by the A
same or different courts. Such an action though by an exercise of
discretion despite being a judicial 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 B
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 C
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 D
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. E
SUMMARY/CONCLUSION
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 F
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 G
to comply with the mandate of Section 41 and 41Aof 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.
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446 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B be followed under Section 41 and 41Aof the Code while
taking note of the order of the High Court of Delhi dated
07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the
standing order issued by the Delhi Police i.e. Standing Order
No. 109 of 2020, to comply with the mandate of Section
41Aof the Code.
C
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.
f) There needs to be a strict compliance of the mandate laid
D 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
E 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
F 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 Codehas to be kept in mind.
G 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.
H
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF 447
INVESTIGATION & ANR. [M. M. SUNDRESH, J.]
k) Bail applications ought to be disposed of within a period of A
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.
B
l) All State Governments, Union Territories and High Courts
are directed to file affidavits/ status reports within a period
of four months.
74. The Registry is directed to send copy of this judgment to the
Government of India and all the State Governments/Union Territories. C
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 D
today.
Ankit Gyan Applications disposed of.
(Assisted by : Roopanshi Virang, LCRA)
E
F
G
H
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