📖 Sukhwant Singh v. State of Punjab, (2009) 7 SCC 559

Facts: An application for bail was pending and the applicant sought protection from arrest meanwhile. It was contended that no provision of the Code confers a power to grant bail on an interim basis, and that a court therefore cannot do so.

Held: The Supreme Court held that a court which has the power to grant bail has the power to grant it on an interim basis while the application is pending, and that the absence of an express provision does not deprive it of that power. The Court reasoned that the power to grant interim relief is inherent in the power to grant the final relief, and that a contrary view would mean that a Court must watch its own jurisdiction being defeated by an arrest made before it could decide. It held that such an order is provisional in character: it preserves the position, decides nothing on the merits, and operates only until the application is disposed of. The Court held that the power should be exercised where the circumstances require protection meanwhile — and observed that refusing it in a proper case may render the eventual order worthless to the applicant.

Ratio: A court which has power to grant bail has power to grant it on an interim basis while the application is pending, the power to grant interim relief being inherent in the power to grant the final relief. Such an order is provisional and operates only until disposal.

📖 Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294

Facts: An application for bail under a statute imposing stringent conditions required the Court to record a satisfaction about the accused’s guilt, and the question was how a court can express such a satisfaction without prejudging the trial.

Held: The Supreme Court held that where a Court considering bail is required to form an opinion about the material, it does so only for the purpose of the bail application and not as a finding in the case. It held that the Court must not prejudge the matter or record findings which would embarrass the trial, and that the satisfaction it expresses is tentative and based on the broad probabilities rather than on a detailed examination of the evidence. The Court held that a detailed reasoning is neither necessary nor desirable in an order on bail, since elaborate reasons may prejudice one side or the other at the trial; but that the order must nonetheless show that the Court applied its mind to the relevant material. It emphasised the balance between the liberty of the individual and the interests of the administration of justice, and held that an order on bail must be read as an order on that application alone.

Ratio: A court considering bail forms an opinion only for the purpose of that application and not as a finding in the case. Its satisfaction is tentative, based on broad probabilities, and detailed reasoning is neither necessary nor desirable lest it prejudice the trial.

⚠ Interim bail on each kind of application

Interim bail is available on an application for regular bail as much as on one for anticipatory bail.

But it matters far more on the latter, because an arrest before the hearing does not merely inconvenience the applicant: it destroys the relief he came for. An application for anticipatory bail becomes infructuous the moment he is taken into custody.

On a regular bail application the applicant is already in custody, so there is nothing to protect him from — the interim order there takes the form of an interim release, which courts grant far more sparingly, since it gives him the very relief he is seeking before the application has been heard.

And where anticipatory bail is not available at all, the High Court may in a rare and exceptional case grant interim protection under Article 226 — but sparingly, and not so as to restore by the back door a remedy the legislature has withdrawn.

The position stated shortly

1. Regular bail is granted under an express statutory power and decides the application. Interim bail is not named in the Sanhita.

2. A court which has power to grant bail has power to grant it on an interim basis, the power to grant interim relief being inherent in the power to grant the final relief: Sukhwant Singh.

3. An interim order is provisional: it preserves the position, decides nothing on the merits, and operates only until disposal.

4. It lapses on disposal. A person whose application is dismissed is not protected by the interim order and is liable to arrest from the moment of dismissal.

5. It must be asked for expressly, with the grounds stated — a real risk of arrest and a prima facie case for the relief sought.

6. Courts should ordinarily grant it where refusing it would render the application worthless.

7. A court considering bail forms an opinion only for the purpose of that application, and its satisfaction is tentative: Ranjitsing Brahmajeetsing Sharma.

8. Detailed reasoning is neither necessary nor desirable in a bail order, lest it prejudice the trial — and that applies with greater force to an interim order.

9. Where the application fails, ask the dismissing court for a short continuation to enable a higher court to be approached. It is ordinarily granted — but it must be asked for.

10. Interim protection matters most on an anticipatory bail application, because an arrest before the hearing destroys the relief sought.