📖 State of Rajasthan v. Balchand @ Baliay, (1977) 4 SCC 308

Facts: A person convicted by the High Court applied to the Supreme Court for bail pending the hearing of his appeal. The Court took the occasion to state, in compressed form, the principle on which applications for bail are to be approached.

Held: The Supreme Court held that the basic rule may perhaps be tersely put as bail, not jail — except where there are circumstances suggestive of the accused fleeing from justice, repeating the offence, intimidating witnesses, or otherwise obstructing the course of justice, or where there is some other similar reason making it not conducive to the interests of justice to grant bail. The Court emphasised that the object of bail is to secure the attendance of the accused at his trial, and that considerations of detention as punishment or of the gravity of the accusation taken by itself do not answer the question. It observed that the antecedents of the applicant, his social ties, and the likelihood of his being available are the material considerations, and granted bail, the applicant having deep roots in the community and no history suggesting he would abscond.

Ratio: The basic rule is bail, not jail — except where there are circumstances suggesting flight, repetition, intimidation of witnesses, or obstruction of justice. The object of bail is to secure attendance, and gravity taken by itself does not answer the question.

📖 Javed Gulam Nabi Shaikh v. State of Maharashtra, (2024) 9 SCC 813

Facts: An accused under a special statute containing a stringent restriction on the grant of bail had been in custody for over four years, the trial not having commenced in any real sense and a large number of witnesses remaining to be examined. Bail having been refused below on the ground of the gravity of the accusation, the matter came to the Supreme Court.

Held: The Supreme Court held that however serious a crime may be, an accused has a right to a speedy trial under the Constitution, and that where the prosecution is unable to ensure one, the gravity of the offence cannot be a ground to keep a person in custody indefinitely. The Court held that the statutory restriction in the special statute does not oust the power of a constitutional court to grant bail where Article 21 has been infringed by prolonged incarceration, and that a court would be doing no favour to an accused by releasing him in such circumstances: it would be performing its constitutional duty. It observed that if the State or the prosecuting agency is unable to provide a speedy trial, it should not oppose bail on the ground of the seriousness of the crime, and that the higher the gravity, the swifter the trial ought to be — the obligation being on the prosecution to bring the case on, not on the accused to endure its delay.

Ratio: However serious the crime, the accused has a right to a speedy trial. Where the prosecution cannot ensure one, gravity is no ground to keep a person in custody indefinitely, and a statutory restriction does not oust the constitutional court’s power where Article 21 is infringed.

⚠ Using the authorities well

Identify the line. An argument built on delay belongs to the Article 21 line; one on an excessive bond to the affordability line; one on a supplementary charge sheet to the default bail line. Citing a foundation case for a default bail point wastes it.

State the proposition, not the facts. What a court needs is the rule the case establishes and its application to the material — not a recital of what happened in a different case twenty years ago.

Prefer the later statement of a settled rule. Where a proposition has been restated by a larger bench or in a recent decision, that is the citation to give, with the earlier authority noted as its source.

And meet the counter-line. Almost every line has a boundary: gravity remains a factor; delay caused by the accused does not count; parity requires comparable roles; the constitutional power does not dispense with a valid statutory condition. An argument which anticipates the boundary is far stronger than one which ignores it.

The position stated shortly

1. The law of bail rests on six lines of authority — the foundation, affordability, anticipatory bail, default bail, cancellation, and Article 21 — each answering a different question.

2. The foundation: the basic rule is bail, not jail, except where circumstances suggest flight, repetition, intimidation or obstruction: Balchand.

3. Affordability: bail includes release on a personal bond without sureties, and an excessive amount keeps only the poor in prison.

4. Anticipatory bail: the power is in wide terms, is not confined to exceptional cases, needs no FIR, and ordinarily enures without a time limit.

5. Default bail: an indefeasible right owing nothing to the merits, which must be availed of and which no court can extend away.

6. Cancellation: rejection and cancellation stand on different footings, and cancellation requires cogent and overwhelming circumstances.

7. Article 21: speedy trial is an ingredient of the right, prolonged incarceration without trial engages it, and statutory restrictions cannot oust the constitutional power.

8. The modern emphasis is that the State must justify detention at every stage — the arrest, the remand, the bail hearing, and again when the trial has not moved.

9. However serious the crime, the accused has a right to a speedy trial; where the prosecution cannot ensure one, gravity is no ground for indefinite custody: Javed Gulam Nabi Shaikh.

10. And the higher the gravity, the swifter the trial ought to be — the obligation being on the prosecution to bring the case on, not on the accused to endure its delay.