📖 Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240

Facts: An application for bail pending appeal came before the Supreme Court, and the Court took the occasion to set out the considerations that govern the grant or refusal of bail and the principles underlying the jurisdiction.

Held: The Supreme Court held that the issue of bail is one of liberty, justice, public safety and the burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. It held that personal liberty, deprived when bail is refused, is too precious a value to be jettisoned, and that the power to refuse must be exercised on relevant considerations and not on a vague sense of the gravity of the offence. The Court set out the matters to be weighed: the nature of the charge and the severity of the punishment likely on conviction; the character and antecedents of the applicant; the danger of his absconding or of the evidence being tampered with; the danger of witnesses being suborned; the likelihood of the offence being repeated; the protracted nature of the trial; and the larger interest of the public or the State. It emphasised that the refusal of bail is not to be used as a punishment, that the reasonableness of the order is examinable, and that a court must give reasons for its conclusion.

Ratio: Bail turns on liberty, justice, public safety and the public burden. The power is exercised on defined and relevant considerations — the charge, the antecedents, the danger of absconding or tampering, the likelihood of repetition and the length of the trial — and never as a punishment.

⚠ The proposition applies to an ordinary non-bailable offence

In a bailable offence the question does not arise at all: section 478 makes release a right, and there is nothing to weigh.

In a non-bailable offence the proposition is at its strongest. Section 480 confers a discretion, and the discretion is exercised on the factors above, with the burden on the detention rather than on the release.

It is displaced only where Parliament has said so — by section 480(1) itself in the cases it names, or by a special statute imposing conditions on the grant of bail.

And after conviction, pending appeal, the position changes altogether: the presumption of innocence has been displaced by a judicial finding, and the question under section 430 is whether the execution of the sentence should be suspended.

📖 Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1

Facts: A provision in a special statute imposed twin conditions on the grant of bail — that the Public Prosecutor be given an opportunity to oppose, and that where he opposed, the Court be satisfied that there were reasonable grounds for believing the accused not guilty and that he was not likely to commit any offence on bail. The conditions were keyed to the punishment prescribed for the scheduled offence rather than to the offence under the special statute itself. The provision was challenged under Articles 14 and 21.

Held: The Supreme Court held that a provision imposing twin conditions on bail is a drastic inroad on personal liberty and must satisfy Articles 14 and 21. Examining the provision, it found that the classification it made bore no rational relation to the object sought to be achieved: because the conditions were triggered by the punishment prescribed for the scheduled offence and not by the gravity of the offence under the special statute, the result was manifestly arbitrary — persons accused of the same offence under that statute would face different bail regimes according to an unrelated criterion, and persons accused of graver conduct could escape the stricter regime altogether. The Court held the provision to be unconstitutional as violative of Articles 14 and 21. It emphasised that the procedure established by law for depriving a person of liberty must be fair, just and reasonable, and that a statutory reversal of the ordinary rule is not beyond scrutiny merely because the legislature has enacted it.

Ratio: A statutory provision imposing twin conditions on bail is a drastic inroad on liberty and must satisfy Articles 14 and 21. Where the classification it makes bears no rational relation to its object, it is manifestly arbitrary and liable to be struck down.

⚠ The four things the principle never permits

Detention because the offence is serious. Gravity is a factor going to the risk of absconding and of interference; it is never a bar in itself, outside the cases the statute names.

Detention because the case has attracted attention. Public feeling and press coverage are not among the considerations, and a court that yields to them has substituted sentiment for material.

Detention to secure cooperation with the investigation. Custody is not an interrogation technique, and a refusal of bail cannot be used to induce a confession or to punish an accused for maintaining his innocence.

Detention that amounts to serving a sentence in advance. A person who serves, as an undertrial, the term he might have received on conviction has been punished without being convicted — which is why section 479 now imposes both a half-period rule and an absolute ceiling.

The position stated shortly

1. The proposition is a conclusion, not a slogan. It follows from the presumption of innocence and from Article 21.

2. The only legitimate reasons for pre-trial detention are to secure the appearance of the accused and to prevent him from defeating the trial.

3. It reverses the question: not “why should he be released?” but “why must he be detained?” — and the answer must rest on material.

4. The factors are forward-looking: the nature and gravity of the accusation, the severity of the likely punishment, the antecedents, the danger of absconding, of tampering or of suborning witnesses, the likelihood of repetition, the length of the trial, and the larger public interest: Gudikanti Narasimhulu.

5. Delay strengthens the case for release. The longer the trial will take, the weaker the justification for holding an unconvicted person meanwhile.

6. The proposition has no application to a bailable offence, where release is a right under section 478 and there is nothing to weigh.

7. It is displaced where section 480(1) itself bars release, and where a special statute imposes conditions on the grant of bail.

8. But such a statutory reversal is not beyond scrutiny: a provision imposing twin conditions must satisfy Articles 14 and 21: Nikesh Tarachand Shah.

9. Where the classification such a provision makes bears no rational relation to its object, it is manifestly arbitrary and liable to be struck down.

10. And after conviction, the position changes: the presumption of innocence is displaced, and the question under section 430 is whether the execution of the sentence should be suspended.