Bail is a general rule: Supreme Court 2018

(ARISING OUT OF S.L.P. (CRL.) NO. 151 OF 2018)
Dataram Singh …Appellant
State of Uttar Pradesh & Anr. …Respondents
Madan B. Lokur, J.
1. Leave granted.
2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is believed to
be innocent until found guilty. However, there are instances in our
criminal law where a reverse onus has been placed on an accused with
regard to some specific offences but that is another matter and does not
detract from the fundamental postulate in respect of other offences. Yet
another important facet of our criminal jurisprudence is that the grant of
bail is the general rule and putting a person in jail or in a prison or in a
correction home (whichever expression one may wish to use) is an
exception. Unfortunately, some of these basic principles appear to have
been lost sight of with the result that more and more persons are being
incarcerated and for longer periods. This does not do any good to our
criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the
discretion of the judge considering a case but even so, the exercise of
judicial discretion has been circumscribed by a large number of decisions
rendered by this Court and by every High Court in the country. Yet,
occasionally there is a necessity to introspect whether denying bail to an
accused person is the right thing to do on the facts and in the
circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during investigations
when that person perhaps has the best opportunity to tamper with the
evidence or influence witnesses. If the investigating officer does not find
it necessary to arrest an accused person during investigations, a strong
case should be made out for placing that person in judicial custody after
a charge sheet is filed. Similarly, it is important to ascertain whether the
accused was participating in the investigations to the satisfaction of the
investigating officer and was not absconding or not appearing when
required by the investigating officer. Surely, if an accused is not hiding
from the investigating officer or is hiding due to some genuine and
expressed fear of being victimised, it would be a factor that a judge would
need to consider in an appropriate case. It is also necessary for the judge
to consider whether the accused is a first-time offender or has been
accused of other offences and if so, the nature of such offences and his or
her general conduct. The poverty or the deemed indigent status of an
accused is also an extremely important factor and even Parliament has
taken notice of it by incorporating an Explanation to Section 436 of the
Code of Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting Section 436A in
the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a
judge, while dealing with an application for remanding a suspect or an
accused person to police custody or judicial custody. There are several
reasons for this including maintaining the dignity of an accused person,
howsoever poor that person might be, the requirements of Article 21 of
the Constitution and the fact that there is enormous overcrowding in
prisons, leading to social and other problems as noticed by this Court in
In Re-Inhuman Conditions in 1382 Prisons.
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered in
NikeshTarachand Shah v. Union of India2
going back to the days of the
Magna Carta. In that decision, reference was made to Gurbaksh Singh
Sibbia v. State of Punjab3
in which it is observed that it was held way
back in Nagendra v. King-Emperor4
that bail is not to be withheld as a
punishment. Reference was also made to Emperor v. Hutchinson5

wherein it was observed that grant of bail is the rule and refusal is the
exception. The provision for bail is therefore age-old and the liberal
interpretation to the provision for bail is almost a century old, going back
to colonial days.
7. However, we should not be understood to mean that bail should be
granted in every case. The grant or refusal of bail is entirely within the
discretion of the judge hearing the matter and though that discretion is
unfettered, it must be exercised judiciously and in a humane manner and
compassionately. Also, conditions for the grant of bail ought not to be so
strict as to be incapable of compliance, thereby making the grant of bail
2 2017 (13) SCALE 609
3 (1980) 2 SCC 565
4 AIR 1924 Cal 476
5 AIR 1931 All 356
8. We have been constrained to make these observations in the
present appeal, in which the grant of bail has not been opposed by the
State, but there is vehement opposition from the complainant.
9. On 13th January, 2016 the complainant lodged a First Information
Report (FIR) No.16 of 2016 at Police Station Sahjanawa, Gorakhpur,
Uttar Pradesh, alleging that the appellant had cheated him of an amount
exceeding Rs.37 lakhs and had therefore committed an offence
punishable under Sections 419, 420, 406 and 506 of the Indian Penal
Code. It was also alleged that the appellant had issued a cheque for Rs.
18 lakhs in favour of the complainant (returning a part of the amount of
Rs. 37 lakhs) but had stopped payment of that cheque in violation of
Section 138 of the Negotiable Instruments Act, 1881.
10. Thereafter the complainant filed Complaint Case No. 206 of 2016
on or about 21st January, 2016 alleging the commission of an offence by
the appellant under Section 138 of the Negotiable Instruments Act, 1881.
Cognizance was taken and summons issued to the appellant by the
concerned Magistrate in the complaint case.
11. Much later, on or about 15th August, 2016, the investigating
officer filed a charge sheet against the appellant being Case Crime No. 18
of 2017. It is not clear why the Case Crime was registered so late (it may
be a typo), but be that as it may, it appears that during the investigations
the appellant was not arrested.
12. Fearing arrest after the charge sheet was filed against him, the
appellant moved the Allahabad High Court for quashing the FIR lodged
against him. The record of the case reveals that on 7th February, 2017 the
High Court declined to quash the FIR, but granted two months time to the
appellant to appear before the trial judge. Presumably, it was directed that
during this period, the appellant should not be arrested. On 11th April,
2017 the appellant approached the Allahabad High Court once again, this
time for a further period of two weeks to enable him to appear before the
trial judge. Time as prayed for, appears to have been granted and
eventually on 24th April, 2017 the appellant appeared before the trial
judge and was taken into judicial custody. The appellant has been in
judicial custody ever since.
13. A bail application moved by the appellant was rejected by the trial
judge on 27th April, 2017 and another application for bail was rejected by
the Allahabad High Court on 21st September, 2017 (impugned before us).
14. On 23rd January, 2018 when the appeal was listed before us, the
complainant was represented by learned counsel even though he was not
a party to the proceedings. However, on the oral request of learned
counsel for the appellant the complainant was impleaded as a party
respondent. Notice was then issued to the State of Uttar Pradesh, while
Crl. Appeal No.227/2018 (@ S.L.P. (Crl.) No. 151 of 2018) Page 6 of 9
notice was accepted by learned counsel for the complainant on his behalf.
A request was made for filing a reply to the petition for special leave to
appeal and two days time was granted for this purpose since the appellant
was in judicial custody for a considerable period.
15. Even though the State of Uttar Pradesh has been served in the
appeal, no one has put in appearance on its behalf. As far as the
complainant is concerned, no reply was filed by the time the matter was
taken up for consideration on 29th January, 2018. Accordingly, the matter
was adjourned to 2nd February, 2018 by which date also no reply was filed
by the complainant. As mentioned above, no one has put in appearance on
behalf of the State of Uttar Pradesh to oppose the grant of bail to the
16. Learned counsel for the complainant vehemently contended that
the appellant had duped him of a considerable amount of money and that
looking to the seriousness of the allegations against him, this was not a
case in which the appellant ought to be granted bail by this Court.
Learned counsel supported the view taken by the trial judge as well as by
the Allahabad High Court. He argued that given the conduct of the
appellant in not only cheating the complainant and depriving him of a
considerable sum of money but thereafter issuing a cheque for which
payment was stopped made it an appropriate case for dismissal.
17. In our opinion, it is not necessary to go into the correctness or
otherwise of the allegations made against the appellant. This is a matter
that will, of course, be dealt with by the trial judge. However, what is
important, as far as we are concerned, is that during the entire period of
investigations which appear to have been spread over seven months, the
appellant was not arrested by the investigating officer. Even when the
appellant apprehended that he might be arrested after the charge sheet
was filed against him, he was not arrested for a considerable period of
time. When he approached the Allahabad High Court for quashing the
FIR lodged against him, he was granted two months time to appear before
the trial judge. All these facts are an indication that there was no
apprehension that the appellant would abscond or would hamper the trial
in any manner. That being the case, the trial judge, as well as the High
Court ought to have judiciously exercised discretion and granted bail to
the appellant. It is nobody’s case that the appellant is a shady character
and there is nothing on record to indicate that the appellant had earlier
been involved in any unacceptable activity, let alone any alleged illegal
18. In our view, taking all these and other factors into consideration, it
would be appropriate if the appellant is granted bail on conditions that
may be reasonably fixed by the trial judge. We order accordingly.
19. We should not be understood to have expressed any opinion on the
allegations made against the appellant, both in the charge sheet as well as
in the complaint case filed against him.
20. The appeal is allowed.
(Madan B. Lokur)

New Delhi; (Deepak Gupta)
February 6, 2018