Professional Documents
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1. High Courts Have Power To Grant Bail By Invoking Article 226 In Suitable Cases:
that a High Court in its jurisdiction under Article 226 of the Constitution of India has the
"In an application under Article 226, the High Court must be circumspect in exercising its
powers [to grant bail] on the basis of the facts of each case. However, the High Court
should not foreclose itself from the exercise of the power when a citizen has been
arbitrarily deprived of their personal liberty in an excess of state power," it observed while
granting bail to Arnab Goswami in a habeas corpus petition.
Also Read: 'Liberty Is Not A Gift For Few': Supreme Court Directs High Courts, District
Courts To Monitor Pendency Of Bail Applications
2. 'Dr Kafeel Khan's Speech Does Not Promote Hatred Or Violence, It Gives A Call For
National Integrity And Unity Among Citizens': Allahabad HC [Nuzhat Perween v. State of
UP & Anr.]
A Division Bench comprising Chief Justice Govind Mathur and Justice Saumitra Dayal
Singh revoked NSA charges against Dr. Kafeel Khan and directed the Government to
immediately release him. The Court observed that Dr. Khan's speech at the Aligarh
Muslim University on December 13, 2019, amidst the anti-CAA protests, that led to his
arrest and subsequent detention under the stringent provisions of the National Security
Also Read - 'Individual Rights Should Subserve The National Interest': Kerala High
Court Cancels Bail Granted To Journalism Student In UAPA Case [Read Judgment]
"A complete reading of the speech primafacie does not disclose any effort to promote
hatred or violence. It also no where threatens peace and tranquility of the city of Aligarh.
The address gives a call for national integrity and unity among the citizens. The speech
also deprecates any kind of violence. It appears that the District Magistrate had selective
reading and selective mention for few phrases from the speech ignoring its true intent,"
the Court sternly remarked.
Also Read - Supreme Court Adjourns To Next Week PIL Seeking Directions To Control
The Bench also noted that the detention order was issued in February 1010 whereas the
alleged incident had occurred in December 2019. In this backdrop it was held- "By very
nature, the order of preventive detention could have been issued to prevent an
occurrence but not punitively or merely by way of a consequence of the occurrences that
were two months old."
Also Read: Chief Justice Govind Mathur, Who Quashed Kafeel Khan's Detention, Has A
Consistent Record Of Upholding Fundamental Rights
3. Even if The Remand Order is Illegal, Still The Writ of Habeas Corpus Is Not An
Effective Remedy: Bombay High Court [Ankit Ghanshyam Mutha v. Union of India & Ors.]
Placing reliance on 2014 ruling of the Supreme Court in Sourabh Kumar (through father)
v. Jailor Koneila Jail, a division bench of Justices SS Shinde and NB Suryawanshi held
that the Writ of Habeas Corpus is not maintainable if there is order of remand and the
It held, "The legal position as laid down by the authorities of the Supreme Court and this
Court makes it clear that even if the remand order is illegal, which is passed
mechanically in a cavalier fashion, still the remedy of the Writ of Habeas Corpus cannot
be said to be an efficacious remedy, but in terms of the Hon'ble Supreme Court filing of
Bail Application in such circumstances is appropriate remedy."
Anticipatory Bail
1. Anticipatory Bail Application Not Maintainable By A Person Who Apprehends Arrest
After Cancellation Of Regular Bail: Supreme Court [Manish Jain v. Haryana Pollution
Control Board]
A bench comprising Justices Navin Sinha and KM Joseph held that a person cannot file
regular bail. This is because a person released on bail remains under the 'constructive
custody' of law and a person in custody cannot seek anticipatory bail, explained the top
court.
2. Anticipatory Bail Cannot Be Limited To A Fixed Period Except In Special And Peculiar
Circumstances: SC [Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr.]
Banerjee and Vineet Saran held that anticipatory bail should not invariably be limited to a
fixed period. But if there are any special or peculiar features necessitating the court to
limit the tenure of anticipatory bail, it is open for it to do so. The Court also held that life
or duration of an anticipatory bail order does not end normally at the time and stage
when the accused is summoned by the court, or when charges are framed, but can
continue till the end of the trial except in special and peculiar cases.
(1) SCC 667, which restricted the scope of Section 438 of the Cr.PC. It also overruled
Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., 2011 (1) SCC 694, to the
extent it held that no conditions can be imposed while granting an order of anticipatory
bail, is incorrect.
Also Read: Accused Released On Anticipatory Bail Need Not Surrender And Seek Regular
Bail For Recovery Under Section 27 Evidence Act : SC
3. Section 438 CrPC Doesn't Mandate That Sessions Court Must Be Moved First; But
A 5-judge bench of the Allahabad High Court composing of Chief Justice Govind Mathur
and Justices Ramesh Sinha, Sunita Agarwal, Yashwant Verma and Rahul Chaturvedi
clarified that under special circumstances, a person apprehending arrest may approach
the High Court directly seeking anticipatory bail, without approaching the Sessions court
first.
Section 438 confers concurrent jurisdiction on both High Court and the Sessions Court
bench observed that strong, cogent, compelling and special circumstances must
necessarily be found to approach the High Court first, without the avenue as available
before the Court of Sessions being exhausted. The bench further clarified that it was not
inclined to "enumerate" the special circumstances in which an applicant may move to the
high court directly. Such circumstances, it held, must be left to the "judicious discretion"
"absconder" under Section 82 of CrPC does not preclude him from filing an application
for seeking anticipatory bail. It held that according to the Apex Court's decision in Lavesh
v. State (NCT Of Delhi), (2012) 8 SCC 73, a person who is proclaimed offender under
Sections 82 and 83 of Cr.P.C. loses the sheen on merits to seek anticipatory bail. It
clarified that such application deserves dismissal on merits if he is declared as
It held that the judgment does not talks about "maintainability" of anticipatory bail
application after a person is declared absconder but, it merely suggests that the
Also Read: S. 82 CrPc Neither Creates Riders Nor Imposes Restrictions In Filing Of
Anticipatory Bails By Proclaimed Offenders: Himachal Pradesh High Court
5. Anticipatory Bail Can Be Granted Even After Chargesheet Has Been Filed: Allahabad
A single bench of Justice Siddharth held that anticipatory bail can be granted even after
a chargesheet in the criminal case has been filed. The Court, in its decision, cited the
case of Sushila Agarwal v. State (NCT of Delhi) and held that the anticipatory bail need
not be in place for a limited duration of time. In many cases, it can even go on till the
conclusion of the trial. The High Court's power to grant an applicant anticipatory bail
The Bench quoted from the Sushila case, "If the facts of the given case make the
applicant entitled for grant of anticipatory bail, even after submission of charge sheet
against him and cognizance of the same by the Court, the second anticipatory bail would
be maintainable before the High Court even though the applicant was earlier granted
anticipatory bail till the submission of charge sheet by the High Court."
1. Unemployment Due To COVID A Dominating Factor: Madras High Court Grants Bail To
affected the livelihood of many, a Bench of Justice SM Subramaniam granted bail to two-
"Considering the probable circumstances, and the problems of unemployment, which are
the dominating factors to be considered for grant of bail in such cases, keeping this kind
of persons inside the jail for a longer duration would be detrimental not only to the
individual, but also to the society at large," the Court opined.
2. Parity Cannot Be The Sole Ground For Granting Bail: Allahabad HC [Gajendra Singh v.
State of UP]
A single-Judge bench of Justice Ravi Nath Tilhari held that "parity" with the co-accused
cannot be the sole ground for granting bail and that each bail application has to be
decided on the basis of its own merits. Reliance was placed on Rakesh Kumar Pandey v.
Munni Singh @ Mata Bux Singh & Anr., where the Supreme Court had denounced the
order of the High Court granting bail to the co-accused on the ground of parity in a
heinous offence.
3. Factors Like Gravity & Seriousness Of Alleged Offence By Themselves Cannot Be The
The bench of Justice Deepak Gupta and Justice Aniruddha Bose observed that the
accused persons allegedly involved in a murder case, the Top Court said that the offence
alleged no doubt is grave and serious and there are several criminal cases pending
against the accused. However, these factors by themselves cannot be the basis for
Cancellation of Bail
1. Mere Registration Of Multiple Cases Not A Ground To Cancel Bail: Karnataka High
cancel bail granted to the accused on the ground that he is a habitual offender and has
The Court said "In the absence of any cogent material on record, the liberty of any person
Also Read: Bail Granted In One Case Can't Be Cancelled On The Ground That Another FIR
Is Registered: Karnataka HC
1. No Bar On Filing Anticipatory Bail Applications In Triple Talaq Cases; But Should
Plead Reasons For Not Approaching Magistrate: Kerala HC [Nahas v. State of Kerala]
A Bench of Justice PV Kunhikrishnan held that Anticipatory Bail application under
Section 438 Cr.P.C. is not barred in a case in which an offence under the provisions of
accused wants to avail the right under Section 438 Cr.P.C., he should specifically plead in
an application under Section 438 Cr.P.C. about the reasons for not approaching the
Referring to the provisions of the Act, the court noted that there is no such prohibitory
Section in the Act, 2019 (unlike that in SC-ST Act) restraining the court in entertaining an
application under Section 438 CrPC. Access full report to read guidelines in the matter of
2. Liberal Approach In Granting Bail In NDPS Uncalled For, Says SC [State of Kerala v.
Rajesh]
A bench of Justice Indu Malhotra and Justice Ajay Rastogi observed that there cannot
be liberal approach in the matter of bail in NDPS Cases. It noted that as per Section 37 of
the NDPS Act, 1985, the Court has to record a finding and the same is a sine qua non for
For granting Bail under Section 37, the first condition is that the prosecution must be
given an opportunity to oppose the application; and the second, is that the Court must be
satisfied that there are reasonable grounds for believing that he is not guilty of such
offence. If either of these two conditions is not satisfied, the ban for granting bail
operates.
3. [NDPS] Anticipatory Bail Cannot Be Granted Merely Because 'Nothing Was Recovered'
an NDPS case merely because 'nothing was recovered' from the accused. It noted that as
per Section 37(1)(b)(ii) of the Act, if the Public Prosecutor opposes the application, two
conditions have to be satisfied for enlarging the accused on bail: "The first one is that the
Court shall be satisfied that there are reasonable grounds for believing that the accused
is not guilty of the offence alleged against him. The second one is that the Court shall be
satisfied that there are reasonable grounds for believing that the accused is not likely to
commit any offence while on bail. Only on satisfaction of these twin conditions, the
Court has the power to enlarge the accused on bail."
It clarified that satisfaction contemplated, regarding the accused being not guilty, has to
something more than prima facie grounds. It connotes substantial probable causes for
believing that the accused is not guilty of the offence he is charged with.
A Bench comprising Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari
held that mere passage of time during the pendency of the appeal cannot be a ground to
suspend the sentence and grant bail in NDPS Cases; and that the rigors of Section 37 of
Narcotic Drugs and Psychotropic Substances Act, 1985, would have to be met before the
The order was passed in a case filed by Sheru, who was convicted under NDPS Act, and
had been in custody for almost eight years. He contended that despite the directions of
the Apex Court to treat the case at priority, the case has not yet reached for hearing. The
court clarified that the order has been passed in the given facts of the case and not to
be treated as a precedent.
5. Bail-If Case Diary & Other Materials Disclose Prima Facie Case Then Bar Under
of Chhattisgarh]
A Division Bench of Justice Prashant Kumar Mishra & Justice Gautam Chourdiy held
that on reading the case diary or any other material placed on record, if a prima facie
case is made out against the accused, then the proviso to Section 43D(5) of the Unlawful
Activities (Prevention) Act, 1967 will get attracted and the accused shall not be enlarged
on bail.
The said provision stipulates that a person accused of an offence punishable under
Chapters IV and VI of UAPA shall not be released on bail or on his own bond if the Court,
on a perusal of the case diary or the report made under section 173 of CrPC is of the
opinion that there are reasonable grounds for believing that the accusation against such
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
6. Anticipatory Bail Can Be Granted In Cases Under SC/ST Atrocities Act : Madras HC
A Bench of Justice G.R. Swaminathan held that a petition for anticipatory bail is
maintainable even if the case has been registered under the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989. It observed that Section 438 of
CrPC is not the sole repository of the power to grant anticipatory bail and that the High
Courts are endowed with inherent powers to make such orders as to secure the ends of
justice.
In this backdrop it clarified that the bar on application of Section 438 of the Code
engrafted under Section 18/ 18A of the SC/ST Act does not preclude the High Courts
from invoking their inherent powers to grant bail under Section 482 of CrPC.
7. Practice Of Surrendering Before Court To Obtain Bail Does Not Override Legislative
Intent Of Restraining Pre-Arrest Bail Under SC/ST Act: Himachal Pradesh HC [Saroj
The single-Judge bench of Justice Anoop Chitkara held that mere non-application of the
provision for anticipatory bail to offenders accused under the SC/ ST Act does not
preclude them from surrendering before the court and seeking regular bail. It observed
that when the provisions of the SC/ ST Act have been used as a tool to send and keep
people in custody, then it shall be legal to grant ad-interim bail or regular bail to the
accused.
"The practice of accused surrendering before Sessions Court or High Court and thereby
obtaining bail, cannot be said to be with a view to override the legislative intention of
restraining the anticipatory bail to the violators of the SC/ST Act. If the allegations are
serious, keeping in view the object of the SC/ST Act and the purpose for which this
stringent provision in SC/ST Act was enacted, then certainly, such kind of accused would
not be permitted to take advantage bails after surrender. However, when prima facie, the
Court notices that the provisions have been used as a tool to send people in custody,
then in such cases, it shall be prudent, proper and legal to grant ad-interim bail or regular
bails," the judge held.
Also Read: SC-ST (Prevention Of Atrocities) Act Does Not Restrict The Practice Of
Accused Surrendering & Getting Interim Bail U/s 439 CrPC: Himachal Pradesh HC
8. Bar Against Grant Of Anticipatory Bail In SC-ST Act Does Not Disentitle Accused
State of Kerala]
A Bench of Justice Narayana Pisharadi observed that the bar against granting
anticipatory bail in the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, does not disentitle the person accused of an offence under the Act from
seeking regular bail, when he is arrested and produced before the court or when he
"The privilege of pre-arrest bail, in respect of the offences under the Act, is often denied
to an accused only for the reason that Sections 18 and 18A of the Act interdict the court
from granting that relief. In many cases registered under the Act, custodial interrogation
of the accused may not be necessary and there may not be any risk of the accused
fleeing from justice. In such cases, but for the bar under the aforesaid provisions of the
Act, the court would have exercised the discretion to grant the relief under Section 438
Cr.P.C in favour of the accused. In such cases, nothing prevents the Special Court from
granting bail to the accused under Section 437 of the Code, when he is arrested and
produced before the court or when he surrenders or appears before the court," it held.
9. [Section 15A(3) SC/ST Act] Not Mandatory To Hear Victim While Granting Bail Where
Accused Charged With Bailable Offence: Gujarat HC [Hemal Ashwin Jain v. Union of
India]
A Division Bench of Chief Justice Vikram Nath and Justice JB Pardiwala held that when
a person is accused of committing only bailable offence or offences under the Sc/ST
Act, it is not mandatory to grant opportunity of hearing to the victim or the dependent as
provided under Section 15A(5) of the Act in a proceeding relating to granting bail to such
accused. It said so because the impugned provision is not laying any fetters or
However, it clarified that before the court decides to decline such opportunity to the
victim or the dependent, the court shall thoroughly verify and ascertain that the
10. Bail Granted Under SC/ST Atrocities Act May Be Recalled/ Cancelled Under Crpc:
A Bench of Justice Anand Pathak observed that the High Court can entertain application
under Section 439 (2) of Cr.P.C. for cancellation of bail granted in exercise of powers
conferred under Section 14-A (2) of the Scheduled Caste and Scheduled Tribes
While considering the question whether bail once granted under a Special law can be
cancelled under CrPC, the Bench emphasized that a victim cannot be rendered
"remediless" if the accused gets bail but keeps on interfering in the investigation / trial
11. A Child In Conflict With Law Cannot Be Kept In Jail Or Police Lockup Under Any
v. Union of India]
A Division Bench comprising Justice Deepak Gupta and Justice Aniruddha Bose
observed that Section 10 of the JJ Act stipulate that a child in conflict with law has to be
placed under the charge of the special juvenile police unit or the designated child welfare
officer only and not under regular police custody. Further, Section 12 stipulates that Bail
"All JJBs in the country must follow the letter and spirit of the provisions of the Act. We
make it clear that the JJBs are not meant to be silent spectators and pass orders only
when a matter comes before them. They can take note of the factual situation if it comes
to the knowledge of the JJBs that a child has been detained in prison or police lock up. It
is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an
observation home or a place of safety. The Act cannot be flouted by anybody, least of all
the police," the bench observed.
12. 'The Legislature Didn't Intend To Debar A Juvenile From Seeking Relief Of Pre-Arrest
A bench of Justice HS Madaan held that a petition for grant of pre-arrest bail (also
observed, "It could certainly not be the intention of the legislature that such juvenile
should be first apprehended and then produce before Juvenile Justice Board, in the
process denying relief to a juvenile, which is available to the other persons, who are
accused of heinous offences."
It was submitted before the Bench that that Sections 10 and 12 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 deal with grant of regular bail and not with
pre-arrest bail. The Court however observed that "if this special enactment is silent as
regards a particular provision (Pre-arrest Bail) then that has to be read with the general
law i.e. (the) Criminal Procedure Code (1973). An inference can certainly be not drawn
that the legislature intended to debar a juvenile from seeking relief of pre-arrest bail. If it
was (so), then a specific provision in that regard would have been there on the analogy of
Section 18 'The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989,' which clearly bars grant of pre-arrest bail to a person alleged to have committed
(an) offence under the said act."
A Bench of Justice Sanjeeb Panigrahi directed the High Court Registrar (Judicial) to
petitions of persons accused in cases of rape and gang-rape of girls younger than 12
The Single Judge noted that since the hearing of this case relates to grant of regular bail
law that cannot be bypassed, ignored or neglected" in view of the Criminal Law
[As per the Criminal Law (Amendment) Act, 2018, Section 439 of the Cr.P.C. is amended
with effect from 21st April, 2020, by which it is made mandatory for the informant or any
Pleas; Only Special POCSO Courts Are Empowered To Do So: Madras HC [Criminal
Reference]
Special courts, as designated under the provisions of Protection of Children from Sexual
Offences Act, 2012 [POCSO Act] alone are empowered to entertain pre-arrest bail
petitions in respect of offences under the POCSO Act. It further held that the Sessions
The Court noted, Section 31 of the POCSO Act opens with, "Save as otherwise provided
in this Act". A careful reading of the POCSO Act would go to show that, there is no
provision under the POCSO Act specifically excluding Section 438 of Cr.P.C., before the
Special Court. Hence, the Court remarked that Section 31 of the POCSO Act is clear and
unambiguous that the provisions of Section 438 of Cr.P.C., are very much applicable to
"When the Special Court is exercising the exclusive jurisdiction to deal with the offences
under the POCSO Act, the same Court also has the power to deal with the application
under Section 438 of Cr.P.C., even before registering the First Information Report," it
added.
The bench comprising Justices DY Chandrachud and Indira Banerjee observed that the
conditions which a court imposes for the grant of bail have to balance the public interest
impose "any condition" for the grant of bail under Sections 437 (3) and 439 (1) (a) of the
CrPC, the discretion of the court has to be guided by the need to facilitate the
administration of justice, secure the presence of the accused and ensure that the liberty
of the accused is not misused to impede the investigation, overawe the witnesses or
It added, "The human right to dignity and the protection of constitutional safeguards
should not become illusory by the imposition of conditions which are disproportionate to
the need to secure the presence of the accused, the proper course of investigation and
eventually to ensure a fair trial."
Also Read: A Condition For Grant of Bail, Incapable of Compliance, Renders The Bail A
Complete Fantasy: P&H HC
2. Condition To Deposit Amount In Corona Relief Fund For Bail Is Unjust & Improper:
A Single Bench of Justice CS Dias quashed as "improper and unjust", the bail condition
25,000/- towards the Corona Relief Fund. It made a reference to the Supreme Court's
verdict in Moti Ram v. State of Madhya Pradesh, where it was held that the imposition of
cash security or deposit of any amount for grant of bail is unjust, irregular and improper.
Also Read: Condition To Deposit Amount In PM CARES Fund For Granting Bail Is
Improper: Madhya Pradesh HC Concurs With Kerala HC
Also Read: Payment Of Fine Is A Mode Of Punishment; Can't Be A Condition For Bail :
Jharkhand HC
3. Delhi HC Calls For Use Of GPS Tracking System To Monitor Movement Of Accused
A single bench of Justice Asha Menon called for the use of tracking systems such as
GPS tracking system to monitor the movement of accused who have been released on
bail. The judge observed that the case at hand "brought to the fore the need for
India, so that a tracking system similar to the GPS Tracking System, can be used to
monitor the movement of the accused released on bail, allowing the authorities to gather
information all the time while permitting the accused to undertake the usual and ordinary
activities of normal life", she added.
Also Read: Delhi Court Directs Continuously Switched On GPS and Bluetooth As A
Mandatory Condition for Bail
Also Read: 'Liberty Of A Person Cannot Be Left In Limbo On Belief Of State That He Is At
Flight Risk': Delhi HC Upholds Bail Granted To Sanjeev Chawla In Match Fixing Case
national seeking to relax bail condition imposed by the trial court directing authorities to
keep him in a detention center, till disposal of the case registered against him under the
Foreigners Act. The Court said, "Imposition of such condition, placing the petitioner in
Detention Center cannot be said to be harsh or even illegal and unjustifiable and it is not
violative of Article 21 of the Constitution of India."
Jail/Prison. The object behind such establishment of Detention Center and placing
foreign nationals against whom cases have been registered under the FA Act, is just to
restrict their movements across India and should not travel according to their whims and
fancies and remain untraceable or absconded or flee away from justice."
Stop Using Social Media For 2 Months, Report Digital Detoxification To Police: MP
[Bail Condition] Heavens Won't Fall Down If Rape Accused Is Stopped From Using
'Do Voluntary Service For Covid-19 Control': Bail Condition Imposed By Patna HC
Jharkhand HC Grants Bail On Condition To Donate To 'PM CARES Fund' & Download
'Go For Counselling' : MP High Court Puts Bail Condition For Person Arrested Over
Make A Video Call To Investigating Officer Every Monday, Also 'Drop A Pin' On
To Tie TheRakhi With A Promise To Protect Her, as Bail Condition (This order was
challenged before the Supreme Court alleging that it defeated the very purpose of
granting bail by directing the alleged perpetrator to establish contact with the
1. 'Trial Court, While Deciding Bail, Should Consider Awarding Reasonable Sum, As
pouring petrol on the victim's body, a Single Bench of Justice SK Panigrahi suggested
that the Trial Courts should consider awarding a reasonable amount as an interim award
so that the victims, especially hailing from poor and underprivileged classes, can utilise
the said amount for the purpose of meeting their medical expenses.
The Court observed that amidst increasing concern for compensation to victims of
crimes, Section 357A was inserted in the Code of Criminal Procedure in the year 2009. It
was intended to reassure the victim that he or she is not forgotten in the criminal justice
system. Though the amendments in 2009, left the character of Section 357 unaltered,
with the introduction of this Section, the Court is empowered to direct the State to pay
compensation to the victim in such cases where the compensation awarded under
Section 357 is inadequate for such rehabilitation, or where the case ends in acquittal or
Cases Where Law Insists So: Kerala HC [Vishnu Gopalakrishnan v. State Of Kerala]
Justice PV Kunhikrishnan observed that it is not necessary for a court to issue a notice
to the defacto complainant suo motu or direct the accused to implead the defacto
complainant in a bail application except in cases in which the Criminal Procedure Code
and other Acts insist so or the bail court feel that the defacto complainant is also to be
"When the legislature thinks that only in certain cases notice is necessary to the
victims/defacto complainants while considering the bail applications by courts, the court
need not issue a notice to the defacto complainants/victims in all bail applications.
Simply because the case is registered under Section 420 IPC or 406 IPC, the bail court
need not issue notice to the defacto complainant unless there is a special reason for the
same. Similarly, in all cases in which monetary dispute is there, the bail court need not
issue a notice to the defacto complainant. Bail court is not an executing court to settle
money claims. When the legislature says that notice to the defacto complainant is
necessary only in certain cases, the court need not issue a notice to the defacto
complaint in all bail applications," the Judge opined.
Default Bail
1. Suo Moto Extension Of Limitation Or Lockdown Will Not Affect Right Of Accused To
that the Supreme Court's suo moto order extending limitation and the lockdown
restrictions of the government will not affect the right of an accused to seek default bail
under Section 167(2) of CrPC. The Court held that the suo moto order extending
limitation cannot be interpreted as extending the limitation period under Section 167(2)
CrPC.
The Court apprehended that the if a contrary view is accepted, it could lead to police
taking extra liberties even with respect to production of accused after arrest. It held that
the reasoning that the lockdown was akin to a proclamation of emergency under Article
352 of the Constitution was not right. Even otherwise, the fundamental right to personal
liberty under Article 21 cannot be suspended during emergency, the court noted.
Also Read: SC Order For Extension Of Limitation Does Not Affect An Accused' Right To
Default Bail Under Section 167(2) CrPC: Uttarakhand HC
Also Read: SC Order For Extension Of Limitation Does Not Affect An Accused' Right To
Default Bail Under Section 167(2) CrPC: Kerala HC
A Bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah held that
while granting default bail/ statutory bail under Section 167(2) of CrPC, condition of
The only requirement for getting the default bail/statutory bail under Section 167(2),
Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and
within 60 or 90 days, as the case may be, the investigation is not completed and no
chargesheet is filed by 60th or 90th day and the accused applies for default bail and is
The court also added that the circumstances while considering the regular bail
application under Section 437 Cr.P.C. are different, while considering the application for
default bail/statutory bail.
Accused Who Applied For 'Default Bail': SC [Bikramjit Singh v. State of Punjab]
A Bench of Justices RF Nariman, Navin Sinha and KM Joseph observed that the accused
gets an indefeasible right to 'default bail' if he makes an application after the maximum
period for investigation of an offence is over, and before a charge sheet is filed.
It said, "So long as an application has been made for default bail on expiry of the stated
period before time is further extended to the maximum period of 180 days, default bail,
being an indefeasible right of the accused under the first proviso to Section 167(2), kicks
in and must be granted."
Also Read: Right To Default Bail Is Enforceable Even If Charge Sheet/ Report Seeking
Extension Of Time Is Subsequently Filed: SC
4. Courts Should Inform Accused About Their Right To 'Default Bail' Once It Accrues: SC
Observing that the objects of Section 167(2) of CrPC are subsets of the overarching
fundamental right guaranteed under Article 21, a Bench comprising Justices UU Lalit,
Mohan M. Shantanagoudar and Vineet Saran said that Courts should inform the
accused of the availability of their indefeasible right to avail 'default bail' once it accrues
to them. The bench also observed that if the Court deliberately does not decide the bail
application but adjourns the case by granting time to the prosecution, it would be in
"As a cautionary measure, the counsel for the accused as well as the magistrate ought to
inform the accused of the availability of the indefeasible right under Section 167(2) once
it accrues to him, without any delay. This is especially where the accused is from an
underprivileged section of society and is unlikely to have access to information about his
legal rights. Such knowledge-sharing by magistrates will thwart any dilatory tactics by
the prosecution and also ensure that the obligations spelled out under Article 21 of the
Constitution and the Statement of Objects and Reasons of the CrPC are upheld," it said.
5. Default Bail Granted Erroneously Can Be Cancelled By High Court U/s 439(2) CrPC:
A Bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed
that a 'default bail' illegally or erroneously granted under Section 167(2) Cr.PC can be
"The proviso to Section 167 itself clarifies that every person released on bail under
Section 167(2) shall be deemed to be so released under Chapter XXXIII. Therefore, if a
person is illegally or erroneously released on bail under Section 167(2), his bail can be
cancelled by passing appropriate order under Section 439(2) CrPC. This Court in Puran v.
Rambilas [(2001) 6 SCC 338] has also clarified that the concept of setting aside an
unjustified, illegal or perverse order is totally different from the concept of cancelling the
bail on the ground that the accused has misconducted himself or because of some new
facts requiring such cancellation" it observed.
A Bench of Justice Bharati Dangre held that in computing the period of 90 days or 60
days as contemplated in Section 167(2)(a) of CrPC for default bail, the day of remand is
to be included.
It held inter alia that the submission to the effect that the first day of remand will have to
be excluded, would result into a "break in the continuity of the custody of the accused"
which begin on his arrest and which could have continued till conclusion of investigation.
7. Default Bail Cannot Be Denied To Accused Just Because He Filed Application U/S
439 Instead of 167(2) CrPC : Delhi High Court [Subhash Bahadur v. NCT of Delhi]
The bench of Justice Vibhu Bakhru granted bail in a case where the accused was
prepared to furnish bail and comply with the conditions under Section 167(2) of CrPC but
had submitted his application under Section 439 CrPC. The court held that in the instant
case, although the accused had submitted his application for bail under Section 439
CrPC, he had 'indicated' as required under the Proviso(a) to Section 167(2) of CrPC that
he was prepared to furnish bail, and therefore "in substance, the said condition is met".
The Judge further expounded that the Supreme Court too has explained on a number of
occasions that the Proviso (a) to Section 167(2) CrPC is intrinsically linked to the right
under Article 21 of the Constitution of India that "no person shall be deprived of his life or
personal liberty except according to the procedure established by law". He stated that,
"since the Section embodies a safeguard that circumscribes the power to detain an
8. [Attempt To Rape] Accused U/s Section 511 R/w 376 IPC Entitled To Statutory Bail If
Final Report Is Not Filed Within Sixty Days After Remand: Kerala HC [Vinesh v. State of
Kerala]
A Bench of Justice PV Kunhikrishnan held that an accused charged for attempt to rape
under Section 511 read with Section 376, is entitled to statutory bail under Section 167(2)
authorise detention of the accused beyond a period of 60 days if the investigation relates
to an offence in which the maximum imprisonment is ten years. Thus the legal issue
considered by the court was whether the maximum punishment that can imposed under
The court noted Section 57 IPC which states that in calculating fractions of terms of
twenty years. Referring to Rakesh Kumar Paul v. State of Assam (2017(4) KHC 470), it
said that while construing Section 167 Cr.P.C a liberal approach is necessary. "On a
reading of Section 167(2)(a)(ii) Cr.P.C along with 511 of 376 IPC coupled with Section 57
of the IPC, it is clear that an accused who is charged for the offence under Section 511 of
376 IPC can be imprisonment only for a period of ten years. If that is the case, the
petitioner is entitled statutory bail in this case."
9. Not Mandatory To Hear Victim While Considering Rape Accused's Plea For Default
A Single Bench of Justice PB Suresh Kumar held that provision contained in Section
439(1A) of CrPC for mandatory presence of the informant/ victim during hearing of bail
plea of a rape accused, does not apply to an application for bail under Section 167(2)
CrPC. The court noted that the bail under Section 167(2) of the Code, it is fundamentally
different from the bail under Sections 437, 438 and 439 of the Code.
"The contrast is particularly stark since Section 167(2) grants an indefeasible right to an
accused, whereas Sections 437, 438 and 439 do not grant any such right to the accused
and grant of bail under those provisions is only a matter of judicial discretion…While
considering an application for bail under Section 167(2), a court does not consider the
merits of the case, but only considers the question as to whether there is default on the
part of the investigating agency in completing the investigation in the case within the
prescribed period," the Bench held.
Charge-Sheet Not Filed In 60 Days: Delhi High Court [Rajeev Sharma v. State (NCT) of
Delhi]
While granting bail to journalist Rajeev Sharma, who was arrested for allegedly leaking
observed that an accused is entitled to default bail if chargesheet is not filed in 60 days,
if no minimum sentences is prescribed under the statute for the offences alleged against
him.
The court noted that as held in Rakesh Kumar Paul v. State of Assam, in all cases where
the minimum sentence is less than 10 years but the maximum sentence is not death or
life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to
Other Orders
1. HC's Jurisdiction U/S 439 CrPC Is Limited To Grant Or Not To Grant Bail: SC Quashes
A Bench of Justice L. Nageswara Rao and Justice Hemant Gupta set aside a Madras
High Court order that directed the State to constitute a committee to recommend
reforms in the Criminal Justice System. It observed that the jurisdiction of the Court
under Section 439 of CrPC is limited to grant or not to grant bail pending trial and it has
no inherent jurisdiction to pass any order under the guise of improving the criminal
The Division Bench of Chief Justice DN Patel and Justice Prateek Jalan observed that a
general rule, a copy of the report given by the Jail Superintendent as well as by the
Investigating Officer should be supplied to the applicant so that accused can properly
3. Plea For Stringent Bail Provisions, Reverse Onus, Death Sentence For Rape: Supreme
Court Asks Govt. To Consider [Kirti Ahuja & Anr. v. Union of India & Ors.]
A bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose refused to
entertain a writ petition seeking a direction to the Government to bring certain reforms
and amendments in the law to make it stringent and deterrent in cases of rape with
While disposing of the petition, the Court granted liberty to the Petitioners to make a
representation to the Ministry of Home Affairs, Ministry of Law and Justice and Ministry
of Women and Child Development regarding the issues and said that it 'hopes and trusts
that they shall consider the same and take appropriate action on that'.
Allahabad High Court Directs Trial Courts [Uday Pratap @ Dau v. State of UP]
A Single Bench of Justice Samit Gopal directed the Courts below to "give a complete
A similar direction was also made by the Rajasthan High Court to all the criminal Courts
subordinate to it.
Also Read: Man Kept In 8-Months Illegal Confinement As 'Middle Name' Was Missing To
His Name In Bail Order, Allahabad High Court Orders Release, Summons Jailer
Also Read : Good & Bad : 60 Important Supreme Court Judgments Of 2020
TAGS BAIL DEFAULT BAIL SECTION 438 CRPC SECTION 439 CRPC SECTION 437 CRPC
SECTION 37 NDPS ACT POCSO ACT SC/ST ATTROCITIES ACT #BAIL CONDITION
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