ISSUE 1: WHETHER THE BAIL OF THE APPELLANT AFTER THREE-MONTH

CUSTODY IS JUSTIFIED?

¶ It is submitted that the bail of the Appellant was wrongfully cancelled by the sessions court
and his bail should be restored because: first, the Appellant was given bail after the
Respondent failed to file chargesheet within the stipulated time; second,
1.1 APPELLANT WAS GIVEN BAIL AFTER RESPONDENT FAILED TO FILE CHARGESHEET

WITHIN THE STIPULATED TIME

¶(.) The legislature in its wisdom has given under proviso to Sec. 167(2) of the CrPC that “a)
the Magistrate may authorise the detention of the accused person, otherwise than in custody
of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist
for doing so, but no Magistrate shall authorise the detention of the accused person in custody
under this paragraph for a total period exceeding— (i) ninety days, where the investigation
relates to an offence punishable with death, imprisonment for life or imprisonment for a term
of not less than ten years;”1.
¶(.) The entire object of Sec. 167 is to facilitate investigation and not detention without trial.
The idea is to prevent disappearance of material evidence and to prevent vexatious and
belated prosecution clearly in consonance with the concept of fairness of trial enshrined in
Article 21 of the Constitution.2
¶(.) In Union of India (through CBI) v Nirala Yadav3, the court held that an indefeasible right
accrues in favour of the accused for being released on bail on account of default by the
investigating agency in the completion of the investigation within the period prescribed and
the accused is entitled to be released on bail if he is prepared to and furnishes the bail as
directed by the Magistrate. In the case of State of MP v Rustum4, the Supreme Court held that
clear 90 days have to be expired before the accused person’s right to bail begins.
¶(.) The right of the accused to be released on bail if chargesheet is not filed within the
prescribed period is absolute and cannot be defeated on subsequent filing of the chargesheet. 5
If he exercises the right within the time allowed by the law and is released on bail under such
circumstances, he cannot be re-arrested on the mere filing of the chargesheet.6
¶(.) In the present case, the Respondent failed to file the chargesheet within 90 days. The
1
Code of Criminal Procedure 1973, s 167(2).
2
Y Krishnappa v State  1993 CrLJ 3646.
3
Union of India through CBI v Nirala Yadav, AIR 2014 SC 3036.
4
State of MP v Rustum (1995) SCC (Cri) 830.
5
Dharmanand v State 1994 CrLJ 730 (All).
6
Bipin Shantilal Panchal v State of Gujarat 1996 CrLJ 1652 (SC).
accused Appellant was in the custody for three months. Thus, he was released on bail with
conditions imposed after the expiry of the above period. Therefore, this implies that the
accused was released on bail in consonance with the proviso to Sec. 167(2) of the CrPC.
1.2 APPELLANT IS GIVEN BAIL UNDER SEC 437 OF CRPC

¶(.) The concerned Court may direct that any person accused of an offence and in custody be
released on bail, subject to conditions and stipulations in Sec. 437 of the CrPC.7
1.2.A Appellant satisfies the requirements under Sec 437(1)

¶(.) Clause (ii) of Sec. 437(1) of the CrPC states that “such person shall not be so released if
such offence is a cognizable offence and he had been previously convicted of an offence
punishable with death, imprisonment for life or imprisonment for seven years or more, or he
had been previously convicted on two or more occasions of a cognizable offence punishable
with imprisonment for three years or more but not less than seven years”.
¶(.) However, the section further states that “Provided further that the Court may also direct
that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and
proper so to do for any other special reason”. Further proviso states that “the mere fact that
an accused person may be required for being identified by witnesses during investigation
shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be
released on bail and gives an undertaking that he shall comply with such directions as may
be given by the Court:”
¶(.) An accused charged with a serious offence by itself is no ground to deny him bail if there
are other circumstances.8 Granting of bail is essentially discretionary in all cases of non-
bailable offences. “Discretion, when applied to a court of justice, means sound discretion
guided by law.It must be governed by rule, not by humour; it must not be arbitrary, vague and
fanciful, but legal and regular.”9
¶(.) In the present case, the Appellant was already released on bail under section 167(2). The
release was upon the specified condition that he may not contact the family of Anjali; he shall
not temper with the evidence or try to influence the witnesses, and to make himself available
for further investigation and trial. The Appellant has consented to these conditions of bail.
¶(.) Moreover, the accused Appellant has remained in custody for more than three months,
and the respondents failed to conclude investigation and interview key witnesses. These are
not sufficient ground to cancel the Bail and extend the custody of the appellant.
7
Ami Chand v State of Himachal Pradesh 2020(4)RCR(Criminal)516.
8
Seema Singh v Central Bureau of Investigation, AIR 2018 SC 2161.
9
G Narasimhulu v Public Prosecutor 1978 SCC(Cri) 115.
¶(.) Furthermore, the Respondent’s ground that the appellant should not be released because
of his past criminal record, past history of anger and the fact that statements of key witnesses
have yet not been recorded, do not hold any basis under Section 437(2). Therefore, as per the
provisos to Sec. 437(1) and the present facts, the bail given to the appellant for the non-
bailable offence was valid.
1.2.B Appellant is to be given bail under Sec 437(2) of CrPC

¶(.) The Sec. 437(2) of CrPC states that “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 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”.
¶(.) The testimony or given to Police officer, or given to police while in custody is invalid
and cannot be used for pleading the denial of bail. 10 The statements made in custody are
considered to be unreliable unless they have been subjected to cross-examination or judicial
scrutiny.11 The confession of the accused made while in custody is not to be proved against
the accused as the provisions of Sec. 25 and 26 do not permit it unless it is made before a
magistrate.12
¶(.) In the present case, in light of the above the confession of the accused-appellant cannot
be held to be a valid statement and used for his further detention .Moreover, The recovered
knife through which the Appellant allegedly stabbed Anjali is yet to be proved beyond
reasonable doubt that was the reason for death of Anjali.
¶(.) Furthermore, The Appellant had consented to obey the conditions of the bail as said
above and the conditions are imposed under Sec 437 for the release. The Respondent’s
ground that the appellant should not be released because of his past criminal record, past
history of anger and the fact that statements of key witnesses have yet not been recorded, do not
hold any basis under Section 437(2). Therefore, the appellant’s bail post the expiry period of
90 days held valid ground under Sec. 437(2).
¶(.) Hence, it is submitted that the Appellant’s bail under Section 167 was valid as it satisfied
conditions subject to Sec. 437.

10
The Indian Evidence Act s 25, 26.
11
Sehr v State of Karnataka AIR 2010 SC 1974.
12
Kamal Kishore v State(Delhi Administration) (1997) 2 Crimes 169 (Del).