This article is written by Rachel Sethia. This article offers a detailed analysis of the case of Satender Kumar Antil v. CBI (2022). It includes the background, facts, issues, legal aspects involved and the judgement, along with landmark precedents referred to by the Apex Court.


This case of Satender Kumar Antil v. CBI (2022), deals with the concept of bail. It emphasises the norm, that is, bail is the rule and jail is the exception. A Special Leave Petition (SLP) was filed before the Supreme Court of India, which while passing its judgement quoted John E.E.D’s Essay on Freedom and Power which was “Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of modern civilization. It is the very quintessence of civilised existence and essential requirement of modern man.” The court observed the shortcomings of the system of bail in India, particularly with respect to the issue of persons under trial. In addition to the guidelines given under the case of Arnesh Kumar v. State of Bihar (2014), some major guidelines for the courts and investigative agencies were laid down.

Details of the case

Case Name: Satender Kumar Antil v. CBI 

Appellant: Satender Kumar Antil 

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Respondent: Central Bureau of Investigation 

Court: Supreme Court

Bench of Judges: Justice Sanjay Kishan Kaul and Justice MM Sundresh

Type of Case: Special Leave Petition 

Date of Judgment: 11th July 2022

Citation: (2022) 10 SCC 51

Background of Satender Kumar Antil vs. CBI (2022)

The present case was preceded by two judgements on the matter, in 2021. The current applicant was accused, and an FIR was filed against him, by the Central Bureau of Investigation (CBI). The investigation was completed, without arresting the accused, and the chargesheet was filed in court. Notably, the court then took the chargesheet on record and further issued summons to the applicant, seeking his appearance in the court. Opting to file for an anticipatory bail, the accused did not appear in the court on the required date. The court rejected his anticipatory bail application and issued a non-bailable warrant against him. Eventually, the matter was presented before the Supreme Court. The Apex Court then while hearing the application on anticipatory bail questioned the petitioner the need for an anticipatory bail, as there should exist no fear of being taken into custody and moreover, it was the petitioner who was not appearing before the court. 

The petitioner submitted that the system which is generally followed, particularly in the State of Uttar Pradesh, is that despite not being arrested during the investigation, if a chargesheet is filed, in such cases of the CBI, the accused is sent to custody and therefore, his appearance and application for bail would have led him to custody. The Supreme Court found this to be unacceptable and decided to clarify the matter. It categorised numerous offences, and laid down guidelines with respect to cases wherein no arrest must have taken place during the investigation and the concerned person must have shown cooperating during the investigation, including appearing before the court when asked to do so.

The categorises and the guidelines for every category are as follows-

Category A: offences punishable with imprisonment of 7 years or less, not falling in Categories B & D. 

Once the chargesheet is filed and taken on record, the following is to be done:

  • Issue ordinary summons, and permit appearance through a lawyer.
  • Once the summons is duly served and the accused does not appear, a bailable warrant must be issued for physical appearance.
  • Once the bailable warrant is served and the accused still does not appear, a non-bailable warrant must be issued.
  • If the accused files an application, undertaking to appear in court on a certain date as required, the non-bailable warrant can be converted into a bailable warrant, or into a summons, without insisting on his physical appearance.
  • When the accused appears in the court, the bail application must be decided without him being taken into custody, or by granting him interim bail until the bail application is decided.

Category B: offences punishable with death, imprisonment for life or with imprisonment for more than 7 years. 

  • Once the accused appears in court, the bail application is to be decided on merits.

Category C: offences punishable under special acts, containing stringent provisions for bail, such as NDPS (Section 37), PMLA (Section 45), UAPA (Section 43D(5)), Companies Act (Section 212(6)) etc. 

  • Once the accused appears in the court, the bail application must be decided on merits, with due compliance of the provisions pertaining to bail, as under the special acts.

Category D: Economic offences not covered by special acts.

  • Once the accused has appeared in the court as per the process given, the bail application must be decided on merits. Due consideration must be given to factors such as, seriousness of the charge and the severity of punishment imposed by the statute.

This formed the Supreme Court’s order dated 28.07.2021. On 16.12.2021, the Supreme Court went on to issue clarifications with respect to the previous order-

  • The primary intention behind that order was to expand the scope and simplify the process of bail, not to restrict it.
  • The interpretation of the order must not differ merely because of the inclusion of economic offences (Category D), which may be non-cognizable. 
  • As held in Siddharth vs. State of Uttar Pradesh (2021), if during investigation, there arise no reasons to arrest the accused, a mere filing of the chargesheet shall not lead to his arrest.

Facts of Satender Kumar Antil vs. CBI (2022) 

The Supreme Court decided to lay down some clarifications on the guidelines in this context and also look into the matter of continuous supply of bail applications after the final report was filed on a wrong interpretation of Section 170 of the Criminal Procedure Code,1973 (hereinafter referred to as CrPC). 

Issues raised 

Whether the unnecessary arrest of a person, during an inquiry or both before or after the chargesheet is filed, is valid or not?

Judgement of the case

The Apex Court has made an attempt in addressing the issue in the present case by giving a detailed interpretation of the legal provisions pertaining to arrest under the Criminal Procedure Code, 1973. The interpretation of the court is as follows:


The definition of the word “Trial” has not been given under the CrPC. An extended meaning is to be given to this word for the purpose of enlargement of bail to include, the stage of investigation and thereafter. Primary consideration would be different between the stage of investigation and the stage of trial. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter substantially the proceedings before the court in the form of trial is important. The consequences to be drawn is for a more favourable consideration towards enlargement when investigation is completed while considering other factors. Similarly, an appeal or revision shall be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. 


To elaborate on the purpose of bail, an extended meaning has to be given to this word, which would include the stages of investigation. The primary factors to be looked into differ with the stage. For a thorough investigation, arrest and police custody are the essential factors, whereas for the rest, legal proceeding before the court is the main essence of trial. Therefore, when the investigation comes to an end, with keeping these factors in mind, the court shall have a more favourable approach towards granting bail. 

A bail is a personal bond which includes surety  from the accused. Bail is the release of the accused by the orders of the court or by the police or by the investigating agency. The accused is released on a conditional basis, where he solemnly undertakes that he will cooperate in both the trial and the investigation procedure. 

The existing principle is that, bail is the rule and jail is the exception. Article 21 of the Indian Constitution deals with the right to life and personal liberty. It is only Article which cannot be suspended in any circumstance, not during emergency also. In the case of Gudikanti Narasimhu vs. State (1978), it was held by Justice Krishna Iyer that the matter of bail involves factors like public safety, liberty, justice, and the burden of public treasury. These factors showcase that a developed jurisprudence on bail is important for a socially sensitised judicial process. Personal liberty of an accused or convicted is important except under procedure established by the law.

Interpretation of provisions of the Criminal Procedure Code,1973 given by the court in this judgement

Section 41

Section 41 lays down the provisions with respect to the police being allowed to arrest without a warrant or an order of the Magistrate. The police may do so, if the person has committed a cognizable offence in the presence of a police officer, or if a person has committed an offence which is punishable with imprisonment for a term which may extend to 7 years, with or without a fine. There must exist enough grounds for the police to suspect that the person has committed an offence. The police must also be convinced that the arrest is necessary to prevent the person from committing further offences, or for a detailed inquiry of the offence, or to prevent the person from tampering with the evidence, or to prevent the person from enticing anybody into not disclosing the facts of the circumstances to the court, or if it is difficult to guarantee the presence of that person in court when required. The police officer must record his reasons for both making an arrest and not making an arrest when required.

Nobody suspected of committing a non-cognizable offence, except under Section 42 (arrest on refusal to give name and address), can be arrested without a warrant or order of a Magistrate. 

In this case, it is observed by the court that not following the provisions laid down under Section 41 would give an advantage to the person suspected of committing an offence. While deciding on a bail application, the courts must check whether Section 41 is complied with, and if not, bail can be granted.

Section 41A

Section 41A states the procedure which must be followed for appearing before the police officer, when arrest is not required under Section 41(1). The police is required to issue a notice of appearance to the person against whom a reasonable complaint has been lodged, or some important information is received, or it is suspected that he has committed an offence which is cognizable in nature. Once the notice is issued, it is the duty of the person to comply with the same. If the person complies and continues to do so, he shall not be arrested unless the police find it necessary.  

The court referred to the case of Arnesh Kumar v. State of Bihar (2014), wherein it had interpreted the process of arrest under Section 41 of the CrPC. It stated that the police is not required to arrest the concerned person immediately, despite him having committed a cognizable offence which would attract imprisonment for less than or up to seven years, either with or without a fine. The arrest must be made only if they believe that there exist reasonable grounds for the same, such as, preventing the person from committing further crimes, preventing him from fleeing or damaging evidence, conducting a proper investigation, or preventing from influencing witnesses. The police must make sure to ponder on why an arrest would be required and whether it would be absolutely necessary. They must take into consideration the purpose behind and the goal of such an arrest. Mere commission of the crime is not enough. Furthermore, the police must write down the reasoning behind both making an arrest and not making an arrest. In case the concerned crime is of a very serious nature, the police can be exempted from following these rules. If the police do not follow these rules and fail to provide adequate reasoning for arresting a person, that person can seek bail. He can be released from custody until the time of his trial.

The Court observed that if the police officer followed the procedure mentioned in Section 41, with due diligence, it would lead to a decrease in the need for anticipatory bail. The aim of this Court is to ensure that arrests do not take place unnecessarily.

The following directions were given by the court:

  • The police officers are required to be instructed by the State Government, that no automatic arrest shall take place when a case is registered under Section 498A of the Indian Penal Code,1860 (hereinafter referred to as IPC). They must first satisfy themselves that it is necessary to arrest the accused under the guidelines laid down in Section 41 of the CrPC. 
  • All police officers shall be given a checklist, which shall contain that the person is being arrested to prevent that person from committing another offence and for proper investigation of the offence.
  • The same checklist shall be filled and shall furnish the reason and material which led to the accused to be arrested. 
  • When the Magistrate decides to authorise the detention of the accused, he shall consider the report filled by the police and, upon his satisfaction, shall authorise detention.  
  • If in case the police decide not to arrest the accused, the same decision shall be reported to the Magistrate within two weeks from the day of institution of the case. 
  • Notice of appearance shall be furnished to the accused under Section 41A, within two weeks of institution of the case, which may be extended by the Superintendent of Police of the district for reasons to be recorded in writing.
  • If the police fail to comply with the above mentioned guidelines strict departmental actions shall be taken against him, he shall also be liable for contempt of court to be instituted before the High Court which has the jurisdiction.
  • If the Magistrate authrises detention without recording its reasons, he shall also be liable for contempt of court by the High Court possesses jurisdiction for the same.

These directions shall also be applicable to Section 498A of the IPC, Section 4 of the Dowry Prohibition Act, 1961 and offences whose prescribed punishment is less than or upto seven years of imprisonment, with or without a fine. 

The Court also acknowledged the efforts taken by the courts in Delhi, Jharkhand and Bihar, and went on to observe that there lacked guidelines enforcing the compliance of Section 41A. It stated that the governments of all the States and Union Territories must set up some guidelines as done by the Delhi Police, which promoted strict actions against officers who fail to comply with Section 41 and 41A, and also emphasised on the need for investigating agencies to act in accordance with the case of Arnesh Kumar, which stressed on the concept of presumption  of innocence. In addition to this, Section 60A, which states that an arrest must be made only in accordance with the provisions of the CrPC, must be strictly followed. 

Section 167

Section 167 prescribes the procedure to be followed when it is not possible to complete the investigation in 24 hours. As per Section 57, when the person is arrested without a warrant, he is required to be produced before a Magistrate within 24 hours of his arrest. If the investigation is not complete and if a prima facie case exists against the accused, an investigating officer (not lower in than a sub-inspector), shall submit a copy of the case diary entries to the nearest Magistrate, and also produce the accused before the Magistrate. The Magistrate is then empowered to detain the accused for 15 days. If the Magistrate does not hold jurisdiction over the case, it can be transferred to a Magistrate who does. The Magistrate may extend the detention for a period beyond 15 days. However, the maximum period of detention would be 60 days, and in case of serious offences, it would be 90 days. The accused shall be presented before the Magistrate till the time he is in police custody, and the detention can only be extended if the accused is present before the Magistrate. A Magistrate of second class cannot pass an order for detention, unless allowed to do so by a High Court. 

In circumstances wherein there is no Judicial Magistrate available, the police officer is required to send the accused and  the copy of the diary entries, to an Executive Magistrate, who can detain him for up to 7 days, with reasons recorded in written form. In these 7 days, the Executive Magistrate is required to send the case record to the appropriate Magistrate. Post the completion of this period, unless a competent Judicial Magistrate extends the detention, the accused shall be released on bail. If the detention is extended, the initial time spent in detention will be considered as a part of the total detention period. In a summons case triable by the Magistrate, if the investigation is not completed within 6 months, the Magistrate is required to stop any further investigation, unless the investigating officer satisfies the Magistrate that in the interest of justice and on the basis of special reasons, continuation of investigation beyond 6 months is necessary. If such an order stopping further investigation has been passed, a Sessions Judge has the power to cancel it if he sees it is necessary to be carried on. He may also pass directions regarding bail and other related matters. 

The Court stated that Section 167(2) was introduced in the year 1978, with the purpose being, to ensure prompt completion of investigations. The primary focus was to ensure speedy investigation and fair trial, while also keeping in mind the interests of the marginalised society, which forms a vital part of Article 21 of the Indian Constitution. If the investigation is not completed in a speedy manner, it would result in the release of the accused. As held in the case of M.Ravindran v. Directorate of Revenue (2020), this is an absolute right of the accused, which cannot be repealed, even in case of unforeseen situations, such as a pandemic.

When the matter has only fine as the punishment and then if the suspect is arrested and brought before the Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and a reasonable conclusion can be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. The Court referred to Uday Mohanlal Acharya vs. State of Maharashtra (2001), which stated that when the law provides that a Magistrate could authorise the detention of the accused in custody, up to a maximum period as indicated under Section 167(2), any further detention beyond that period, without filing of a challan by the investigating agency, would be deceitful and also violative of Article 21 of the Indian Constitution. 

Earlier, there would occur circumstances where charges would be brought after the maximum period of detention had expired which resulted in prolonged detention, without any definite end. To rectify this, Section 167(2), which set a specific time limit for detention, while keeping the principles of fairness and liberty under Article 21 in mind, was introduced. This Section makes it mandatory for the investigating officer to collect proper evidence, which shall help in prevention of unjustified prolonged detention.  

The Court also relied upon the case of Rakesh Kumar Paul v. State of Assam (2017), in which the court strengthened the importance of personal liberty and mentioned that no technicalities shall be prioritised over the enforcement of fundamental rights.  

Section 87

Section 87 empowers the court to issue a warrant, either in place of, or in addition to a summons. In situations wherein the court holds power to issue a summons, may after writing down its reasoning, issue a warrant for arrest, 

  • if on the basis of reasonable grounds, the court is of the opinion that either before or after the issue of the summons, but before the period allotted for his appearance, the concerned person has fled or will disobey the summons. 
  • If despite the summons being served on time, fails to appear at the fixed time and does not provide any valid reasoning for the same.

In order to get a person to appear before it, the court may issue either a summons or a warrant, on the basis of the situation. Section 87 allows the court to issue a warrant either in addition or in place of a summons. A warrant is bailable or non-bailable.

The Court referred to the case of Inder Mohan Goswami v. State of Uttaranchal (2007), which stressed on the need for courts to adhere to a particular procedure in terms of issuing warrants, that is, begin with a summons, then proceed to a bailable warrant, and resort to a non-bailable warrant only if absolutely required. It frowned upon the practice of regularly issuing non-bailable warrants without adequate investigation and reasoning. It was emphasised that liberty is a fundamental right guaranteed under Article 21 of the Constitution of India, and a person must not be deprived of the same. While agreeing that it is vital to maintain law and order, it was highlighted that non-bailable warrants must be used only when the same is required for public safety. A balance between the rights of an individual and the interests of the society, must be achieved while deciding whether non-bailable warrants must be issued.

Section 88

Section 88 lays down the power to take bond for appearance. When any person, for whose appearance or arrest, the court is authorised to issue a summons or warrant, is present in court, the court officer may ask him to sign a bond, either with or without sureties, for his presence when required, in that court or any other court to which the case may be transferred for trial. 

While addressing this Section, the Court relied upon the judgement of Pankaj Jain v. Union of India (2018), wherein the issue before the court was whether it was obligated to accept a bond under Section 88 of the CrPC and release the person, since he was not arrested during the investigation. It was held that this Section does not provide rights to the person who is required to appear in the court. It is the court which receives the discretionary power to ensure the appearance of the person in the concerned court. The word “may” used under this Section, establishes that it is the court’s discretion to decide whether the person must sign a bond or not. Section 88 extends to any person, including those who are merely witnesses. 

Section 170

Section 170 deals with cases to be sent to the Magistrate when there is sufficient evidence. delves into what is to be done by the police officer, the officer can arrest the person against whom the evidence is sufficient or if the offence is less serious in nature then the person need not be arrested if he produces surety and makes sure of his appearance in the court during the proceeding. The police are also required to give all the important items to the court and must ensure the appearance of witnesses, by getting them to sign an undertaking whose original copy is to be sent to the court by the police. Further, the police are required to inform the accused of any changes on a time to time basis. If the bond mentions the court of Chief Judicial Magistrate, it shall include all other courts wherein the Magistrate can send a case for trial or investigation, on a condition that the parties to the case are informed about the same in advance. A signed copy of the bond shall be given to one of the signatories and shall retain the original, along with a report which is required to be sent to the court of the Magistrate trying the case.  

The landmark precedent which was heavily relied upon by the Court under this Section, is the case of Siddharth vs. State of U.P (2021). The scope and ambit of Section 170 was discussed, and it was held that this power is reserved for the court to exercise after the investigating agency has completed its investigation, which implies that it is a procedural requirement for the court and the role of the investigating agency is limited. In cases wherein the prosecution does not need to keep the accused in custody, there is no requirement for an arrest when the case is sent to the Magistrate under Section 170. Moreover, there is also no need to file a bail application, as the accused is simply forwarded to the court for the framing of charges and the start of the trial. If the court sees that there is no need for any remand, it can refer to Section 88 and complete the formalities required to ensure the presence of the accused for the commencement of the trial. If a situation arises where remand is required in that situation an opportunity is to be given to the accused persons to present his side if the court is of the view that remand will be required. The court also mentioned that this does not pertain to cases in which the accused persons are already in custody.

This Court went on to state that the refusal by criminal courts, through the Magistrate or through its staff, to accept the chargesheet without production of the accused is not justified under law. Therefore, it shall be the duty of  all courts to accept the chargesheet whenever it is produced by the police, with any approval relating to any omission or requirement in the chargesheet, by the staff or the Magistrate. However, when the police submits the chargesheet, it is the duty of the court to accept it. Similarly, all police officers must be directed that if the chargesheet is not accepted for any reason, they must inform the Sessions Judge about the same, and seek appropriate orders. It was noted upon review, that this does not require the officer incharge to arrest every accused at the time of filing of the chargesheet.  

The Court referred to High Court of Delhi v.CBI (2004), wherein the issue before the court was whether Section 170 prevents the trial court from taking on record the chargesheet, if the accused is not taken into custody. The court held that “custody” does not specifically mean being held by the court or by the police, but refers to the accused being presented before the court by the investigating officer when the chargesheet is being filed. If the investigating officer does not find it necessary to arrest the accused, since he might be cooperating, the officer is not required to arrest him. There’s a misconception that the accused shall be arrested in case of serious offences, even if he is not required to be investigated. Arrest is only necessary when it is crucial for investigation and all the other factors like the accused might flee, he might tamper with the evidence, he might not appear as and when required are not present.If the officer believes that the accused is not going to flee or will not ignore court summons then he is not required to be arrested. It is to be noted that the word “custody” refers to the accused being present before the court when the chargesheet is being filed. 

The Court also observed that safeguarding personal liberty is an important part of upholding the Constitution. When it is felt that the accused might run away, might tamper with the evidence or might not cooperate during the proceedings, only then shall he be arrested. Just because there is a provision for arrest under the law it does not mean that the accused shall always be arrested. Clear justification is required before making an arrest. Routinely making arrests can severely damage a person’s dignity and image. If the above mentioned factors are not present then the court fails to understand why making an arrest is made necessary.

Section 204

Section 204 deals with the issue of process. A Magistrate taking cognizance,if he sees fit, may in a summons case, issue a summons, and in a warrant case, issue a warrant or a summons, whichever is ideal, to seek the presence of the accused before him. The condition attached to issuing of summons or warrant, is that it can be issued only after the list of prosecution witnesses has been filed. In a situation wherein the complaint is made in writing, a copy of that complaint must be attached with every summon or warrant issued. If there are any fees payable for a legal process, such as court fees or any other charges, the amount must be paid before the process can be carried out. Failure in doing so, gives the Magistrate the authority to dismiss the complaint. None of the provisions mentioned under this Section shall affect Section 87 of the CrPC. 

It is a procedural provision and as a matter of course needs to be exercised by following the procedure mentioned in section 88. Hence, issuing a warrant is an exception and if the Magistrate does so he will have to  record reasons for doing the same.

Section 209

Section 209 deals with the submission of a case to the Court of Sessions, when it is exclusively triable by the same. The Magistrate shall follow the procedure depending on the circumstances outlined in Section 208 or Section 209 of the CrPC and then send the case to the Court of Sessions and the accused can be remanded to custody during or until the conclusion of trial, in accordance with the provisions of bail. The Magistrate must send the required records, documents and evidence to the Court of Sessions. Furthermore, notification of such a submission must be given to the Public Prosecutor. 

Section 309

Section 309 deals with the power to postpone or adjourn proceedings and states that in every inquiry or trial, the proceeding shall be continued on a day to day basis until all the witnesses have appeared in the court and have been cross examined. In case it is adjourned for any reason, the same needs to be recorded. However, if the case pertains to any offence under Section 376 of the IPC, the trial must be completed within two months from the date of filing of the chargesheet. The court is given the discretion to adjourn or postpone the proceedings after taking cognizance or after the commencement of the trial, if they find it necessary to do so, and the reasons for the same must be recorded. The court may also remand the accused back to custody. It is to be noted that, a Magistrate cannot remand an accused to custody for more than 15 days. Additionally, if the witnesses are present, no adjournments or postponements can be granted without carrying out their examination, except under special circumstances, which shall be recorded. No adjournment shall be granted merely for the purpose of allowing the accused to show cause against the sentence to be imposed on him. A pleader being engaged in another court shall also not stand as a ground for adjournment. Even if the parties request for it, an adjournment shall be granted only when the circumstances are beyond the control of the parties. Furthermore, when a witness is present, but his pleader or a party is not, or when the party or its pleader is not ready to examine or cross-examine the witness, even though present, the court may go on to record the witness’s statements and pass any order as required. This Section implies that once a trial has begun, it must also reach a logical end.

In the case of Hussain Khatoon & Ors. v. Home Secretary, State of Bihar (1980), it was held that if the court is satisfied that the accused has a good reputation in the community, and shall not flee, he may be released on personal bond. However, if the circumstances are different and it is seen that the accused displays criminal behaviour, has committed criminal offences in the past and holds the potential to disappear, he may be released with sureties and not personal bond. The amount of bail must be decided on the basis of relevant factors and must not be pre-determined with respect to the nature of the case. Deprivation of a person’s liberty, by way of any procedure that is not fair, would amount to a violation of Article 21, and such a person may secure his release by having his fundamental rights enforced. A procedure that is not reasonably expeditious cannot be considered as fair.

Some guidelines with respect to this provision were laid down in the case of Hussain & Anr. v. Union of India & Ors (2017), which were as follows:

  • A bail application is required to be disposed of within 1 week. 
  • Trials before 
  • Magistrates, wherein the accused is in custody, are to be concluded within 6 weeks. In case of a trial before a Court of Sessions, wherein the accused is in custody, the same is to be concluded within 2 years.
  • Disposal of all cases which are 5 years old by the end of the year, must be attempted.
  • As an addition to Section 436A, if an undertrial has served a period of custody exceeding the sentence likely to be awarded upon conviction, he shall be released on a personal bond. 
  • The above timelines may serve as a benchmark for evaluating judicial performances in annual confidential reports.

The Court observed that various directions have been issued regarding unnecessary adjournments. However, the court alone cannot be blamed for the same, as there are various factors which lead to adjournments. Although adjournments are the exception, currently, it has become a regular practice. 

This Court, while referring to this Section, observed that any type of delay on the part of the court or the prosecution, will lead to a violation of Article 21 of the Indian Constitution. It was also held that this provision is for the benefit of the accused while taking his bail application into consideration. A prolonged trial, revision or appeal against any accused while he is in custody, is a violation of Article 21. The nature of the matter is irrelevant here. Therefore, the Court held that it expects that the provisions of Section 309 will be complied with, but an avoidable and prolonged delay in conclusion of the proceedings will be a factor to consider while deciding on a bail application. 

Some guidelines laid down for High Courts, with respect to this Section, were that the High Courts of all the states must make sure that bail applications shall be disposed of within one month and the cases of those who have been in custody for more than 5 years shall be disposed of at the earliest. It is the duty of the High Courts to prepare, issue and monitor plans and steps for speedy trial and investigation for all the subordinate courts and the administrative authorities. 

Section 389

Section 389 delves into the procedure for suspension of sentence pending the appeal and the release of the appellant on bail. In case of a pending appeal by a person who has been convicted, the Appellate Court is empowered to suspend the sentence that was appealed against and in case of confinement, release the person on bail or on his own bond. The Public Prosecutor may file an application for the cancellation of such a bail and in case of a serious offence, show cause in writing, against the bail. In case a conviction is challenged in a lower court, a High Court may step in and use this power granted to an Appellate Court. If a person is convicted of a crime and plans to appeal the same, while also already being out on bail, the court which convicted him, may grant him bail again, if the sentence was imprisonment for a term lower than 3 years or if the concerned offence allows for bail. The purpose of this bail is to give the person an opportunity to prepare and present his appeal. During the period of bail, the initial sentence stands suspended. Furthermore, when the appellant is eventually sentenced to imprisonment, including imprisonment for life by the appellate court, the time for which he was released on bail during the appeal, shall be subtracted while computing the term of his sentence. 

This Court observed that the power conferred under this Section is different from that under Section 437 or under Section 439, pending trial. This is for the reason that “presumption of innocence” and “bail is the rule and jail is the exception” may not be available to the appellant who has suffered a conviction. Mere pendency of an appeal is not a sufficient ground for bail. In case of a delay in dealing with the appeal, factors such as the benefits from Section 436A, which concerns itself with release of undertrial prisoners who have already been in jail, on a personal bond, come into effect. If the appeal is not dealt with quickly, the delay would benefit the person appealing. Therefore, delay in dealing with appeals, among other factors, are taken into consideration by the court, to determine whether bail should be granted. 

In the case of Atul Tripathi v. State of UP (2014), it was held that there exists a difference between the bail procedure under Section 439 and Section 389. The former deals with pre conviction bail, while the latter deals with post conviction bail. In case of pre-conviction bail, unless it is a serious situation, the prosecutor is merely informed by the court, before granting the bail. However, in case of post-conviction bail, especially in serious circumstances, the public prosecutor must be given an opportunity to challenge the bail in writing. Irrespective of whether the public prosecutor objects in writing or not, the court must consider factors such as, the way the offence was committed, age, criminal history of the convict, gravity of the crime, impact on public and justice delivery system. The intention behind this, is to make the process more transparent, fair and free from collusion, and also to ensure that the court makes well-informed decisions, with respect to bail after conviction.

The Court also referred to the case of Sunil Kumar vs. Vipin Kumar (2014). It was observed by the Apex Court that the discretionary power of the High Court under Section 389, had been correctly applied by the High Court. Firstly, both parties’ criminal appeal and criminal revision were pending before the High Court, which implied that the convictions of the respondents were not confirmed yet. Secondly, the respondents could be trusted to follow the conditions of bail, since on previous occasions of being granted bail, they had not misused the liberty. Finally, though the respondents admitted the occurrence of the incident, they presented an alternative explanation for it, on being satisfied with the same the High Court granted them bail and the Apex Court decided not to interfere with the judgement of the High Court. 

Section 436A

Section 436A discusses the maximum period for which a person who is undertrial, can be detained. It states that where a person during investigation, inquiry or trial against him, has undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence, he shall be released by the court on his personal bond, with or without sureties. The court after hearing the public prosecutor (its reasons to be recorded in writing), order the continued detention of such person for a period longer than one-half of the said period, or release him on bail in place of the personal bond with or without sureties. Furthermore, it is  also provided that no person shall be detained for more than the maximum period of imprisonment provided for the said offence under the law. 

The word “shall” in this provision makes it mandatory for the court to pass an order that is to grant bail. Applying for bail would also not be required, particularly if the delay was not caused because of them. Deciding to continue detention, on the basis of the prosecutor’s opinion, must be done only in exceptional situations. This emphasises on  “presumption of innocence” and “bail is the rule and jail is the exception”. It upholds the concept of liberty, as guaranteed by our Constitution. It is also explained that In a situation wherein the appeal is taking longer than usual to reach finality, the entire period of imprisonment which will include the time of trial, appeal and revision shall be considered to fall under the ambit of section 436A. 

In the case of Bhim Singh V. Union of India (2014) the court held that steps are required to be taken, to make sure that the undertrial prisoners are not kept in jail for longer than the maximum period prescribed under the law. Certain judicial officers are directed to hold regular sessions in jail to identify undertrial prisoners who have already served their prescribed time or are close to the maximum limit of their sentence. After this, they must follow the procedure mentioned under Section 436A and promptly release all eligible undertrial prisoners. Reports of these sessions shall be sent to their respective High Court authorities. Any non-compliance of these directions will lead to unnecessary imprisonment of undertrials, which would go against the fundamental principle of being presumed innocent until proven guilty. 

Section 437

Section 437 mentions when bail may be granted in case of a non-bailable offence. If a person accused of a non-bailable offence is arrested without a warrant or is brought before a High Court or a Court of Sessions, bail may be granted. However, the person cannot be released in case there exist valid grounds that indicate that the person has committed an offence punishable by life imprisonment or death; or if the offence is cognizable and the person has been previously convicted for a serious offence. Exceptions can also be made in case of women, minors or those who are sick, and if the court finds reasons for the same. A person may be released on bail, pending an inquiry into whether he committed a non-bailable offence or not. Conditions such as not tampering with evidence, appearing in court when required, etc., shall be imposed while being released on bail. A person out on bail may be arrested if deemed necessary by the court. If the trial of a non-bailable offence exceeds a period of 60 days and the accused has been in custody for the entire period, he shall be released on bail, unless the Magistrate disagrees. The court may also grant bail to a person, if after the trial, but before passing of the judgement, it is felt that he is not guilty. Furthermore, an accused may be required to issue bail bonds to appeal before a higher court for an appeal and failure to do so would lead to forfeiture of the bond.

The Court referred to Prahlad Singh Bhati v. NCT, Delhi (2001), wherein it was held that while granting bail, Magistrates must pay attention to the intensity of the concerned punishment. Usually, if the punishment is of life imprisonment or death penalty, and if the offence is exclusively triable by a Sessions Court, the Magistrate cannot grant bail, except in accordance with provisions under Section 437. It is just more reasonable for an accused to seek bail directly from a Court of Sessions. The reasoning behind this, is that trials are conducted and judgements are passed with respect to serious offences, it is only logical to also address the bail applications.

In the case of Ishan Vasant Deshmukh vs. State of Maharashtra (2010), it was seen that if the concerned punishment is imprisonment for life or death penalty, and the offence is exclusively triable by the Court of Sessions, the Magistrate has no jurisdiction to grant bail, unless the matter is exempted under Section 437. Therefore, merely because an offence is punishable with imprisonment for life, it does not imply that a Magistrate is not authorised to grant bail, unless the offence is also exclusively triable by the Court of Sessions. As long as the offence falls under his jurisdiction, a Magistrate can grant bail, even if the punishment may be imprisonment for life. 

Section 439

Section 439 gives special powers to High Courts and to the Court of Sessions, with respect to bail. These courts may order an accused person in custody, to be released and in case it is an offence under Section 437(3), set conditions for the bail. Any conditions set by a lower court while releasing a person on bail, can be altered or removed. Before granting bail in case of offences exclusively triable by a High Court or Court of Sessions, unless there exists a valid reason not to, the Public Prosecutor must be notified. Additionally, if the bail is for a severe offence under Section 376 of the IPC, the Public Prosecutor must be informed within 15 days. The presence of the informant or any other authorised person is required in case of bail hearing with respect to such severe offences. Furthermore, persons released on bail with certain conditions, can be arrested and sent back to custody. 

It was emphasised that this power would come into the picture only in case of decisions made by Magistrates under Section 437 or in cases that are exclusively triable by the Sessions Court. The courts must ensure that the requirements laid down under this Section are met while dealing with a bail application. 

The Court went on to differentiate between Section 437 and Section 439, in the following manner. Section 437 authorises Magistrates to take up most cases, except those which attract the punishment of life imprisonment or death penalty, and are exclusively under the Court of Sessions’ jurisdiction. Section 437(1) provides for conditional release on bail for women, minors or the sick. Though this provision was introduced as an exception, it must be taken into consideration determining a bail application. Section 439 comes into play in case of an order rejecting a bail application or in cases exclusively triable by a Court of Sessions. Courts must interpret such laws in a manner that would benefit those in need. All necessary factors must also be taken into consideration.

Section 440

Section 440 refers to the amount of bond and reduction. It is stated that a bond executed under this Chapter shall be fixed after considering the circumstances of the case and shall not be excessive. A High Court or a Court of Sessions may direct the reduction of a bail set by a police officer or by a Magistrate. 

The court must ensure that the amount of bond is reasonable. Imposing a condition which is impossible to comply with, would defeat the very object of the release. It was mentioned that Sections 436, 437, 438 and 439 of the CrPC must be interpreted together. 

Again, the Court referred to Hussain Khatoon & Ors. v. Home Secretary, State of Bihar (1980), wherein it was held that while determining the conditions to impose to ensure the accused appears before, factors such as nature of the offence, weightage of the evidence against the accused, the accused person’s financial condition, his family ties, character and mental condition, employment, his record of court appearance or of flight to avoid prosecution, must be considered. A discretion is given to the judges to release the accused on bail or personal bond, they shall understand the extent of this discretion and shall use it appropriately.  

The Court went on to state that courts hold the massive power of granting bail or releasing a person. It is pertinent for courts to fully grasp the extent of their discretion while using this power.

It was held by the court in the present case that the courts have a very crucial role to play which is safeguarding the fundamental aspects. Any failure in safeguarding will lead to the violation of a right to life and personal liberty which is a fundamental right under the Constitution of India. All the courts in India, especially criminal courts are given the responsibility of preserving the principles and constitutional values. The courts are required to balance the need of enforcing criminal law with the need to prevent its misuse against individuals personal liberty. This principle was led down by the court in the case of Arnab Manoranjan Goswani v. State of Maharashtra (2021). The court stressed on the need of preventing misuse of criminal laws against targeting individuals. The court was a firm believer of a fact that liberty is fragile and steps must be taken to prevent it from being violated. 

Clarification on the categories of offences

With respect to Category A and Category B offences , the Court observed that the same general principles related to bail will apply. However, with Category A offences, courts are required to be more lenient towards the accused being tried for such offences, while with Category B offences, due consideration shall be given to legal principles and circumstances of the matter, and the decision will differ from case to case. 

With respect to Category C, which includes special acts, the general rule regarding delays, holds good. For instance, Section 436A applies to special acts, unless there exist separate provisions for it. Laws, despite being stringent, must not delay justice. Since there are usually only a few witnesses in such cases, the trial should be completed quickly. It is essential to follow the directions of the court, especially Section 309, and speed up the processes. The Court went on to refer to Union of India v. K. A. Najeeb (2021), wherein it was clarified that apart from fair treatment and following due process, the Indian Constitution also guarantees justice and speedy trial. If an accused has been in custody for a considerable period of time and the trial is delayed, he is usually released on bail. The law seeks to speed up the process with the help of Special Courts, as under Section 36 of the CrPC. However, delays in setting up these courts hinders its entire purpose. In this case, delay in setting up Special Courts in the Greater Bombay region also led to a delay in justice. The Court stressed on the injustice that delays in trials cause. It stated that bail conditions must be strictly followed and cases must be prioritised accordingly. 

With respect to Category D, the Court questioned whether economic offences should be considered as a separate category or not. It observed that since economic offences include a wide range of circumstances, it would not be right to categorise all these offences into one group and then deny bail purely on the basis of this classification. The court, while referring to P. Chidambaram v. Directorate of Enforcement (2020), mentioned that factors such as intensity of the offence, objective of the Special Act, duration of the sentence, etc., must be taken into consideration while deciding on such matters.

Guidelines issued

The Supreme Court concluded the matter by laying down the following guidelines-

  • The Government of India may consider the introduction of a separate statute dealing with bail, to smoothen the procedure and concepts related to grant of bail.
  • It is the duty of the investigating agencies to follow the provisions of Section 41 and Section 41A, and to comply with the directions given under the Arnesh Kumar judgement. Any non-compliance on their part shall be reported to the higher and appropriate authority. 
  • Courts shall ensure compliance of Section 41 and Section 41A. Failure to comply would entitle the accused to grant of bail.
  • All State Governments and Union Territories shall establish standard procedures for implementing Section 41 and Section 41A.
  • Bail application shall not be insisted upon while considering the applications under Section 88, Section 170, Section 204 and Section 209.
  • Strict compliance with the mandate mentioned in the case of Siddharth v. State of UP is needed. 
  • State and Central Governments shall adhere to the court’s directives regarding the establishment of Special Courts. The High Court in consultation with the State Government must undertake an exercise with respect to the need for Special Courts, and the vacancies of the presiding officers must be filed promptly. 
  • Undertrial prisoners who cannot meet the bail conditions need to be identified by the High Court and appropriate actions shall be taken under Section 440, to facilitate their release. 
  • While insisting upon sureties the mandate of Section 440 must be kept in mind. 
  • Similar to the directives in Bhim Singh’s case, the High Court and District judiciary must conduct an assessment, to comply with Section 436A of the CrPC, followed by necessary orders.
  • Bail applications are required to be disposed of within two weeks, except if the provision mentioned otherwise. Anticipatory bail applications shall be disposed of within six weeks, with the exception of an intervening application.
  • State Governments, Union Territories and High Courts are required to file status reports/ affidavits within a period of four months. 

Critical analysis of Satender Kumar Antil vs. CBI (2022)

This judgement is concerned with the prolonged and unwanted detention of individuals waiting for their appeals to be heard. It clarifies the concept of bail in cases wherein the accused is not arrested at the time of filing of chargesheet in the court.

The lower levels of the judiciary usually seem reluctant to grant bail to the accused, due to which, sometimes the innocent person faces imprisonment for a long term. When appeals take too long to be disposed of, there arises a risk that individuals would end up serving an entire sentence even prior to receiving a chance to prove their innocence. It is often overlooked that the only valid justification for denial of bail, as per the Indian Constitution, is when the detention of the accused is necessary to protect the integrity of the investigation. The blunder which is currently being made by the police, is the tendency to arrest all the suspects, which is not required with respect to laws attracting a punishment lower than seven years of imprisonment. 

The intention of the Apex Court, behind this decision, was to broaden the concept and the scope of bail and to address all the doubts which could arise in the process of applying for bail. This judgement seeks to uphold human liberty and the duty of criminal courts and investigating agencies to safeguard constitutional values and ethos. Once the investigation is over, no purpose is served by keeping the accused in detention.

It is essential to emphasise on the concept of presumption of innocence, which indicates that the detention of individuals unnecessarily, does not serve any purpose and is against the law. While dealing with the matter at hand, the Court mentioned that the jails in our nation are flooded with undertrial prisoners. The statistics presented before the Court showcases that more than two-third of the inmates are undertrial, and out of them are charged with offences whose punishment is lower than seven years and are not even required to be arrested. 

A major point observed by the Court was that the poors face difficulties in furnishing bail, due to factors such as a high bail amount and sometimes the need for sureties, especially when they are under pre-trial detention. The Court has also tried to differentiate the bail applications from the trial proceedings and has observed that there must be a separate statute for bail. 

The Court greatly stressed on the unjust nature of continued custody leading to acquittal, and also laid emphasis on the duty of the courts to uphold the Constitution and protect the liberty of individuals. Another importanting holding of the court was to the need of the court to prevent the misuse of the legal procedure while ensuring to meet the ends of justice and requested caution while passing a decision. 

In the light of this judgement the Apex Court aims to ensure principles of natural justice and liberty are maintained and individuals are not deprived of their freedom. The court has advocated for a separate statute of bail which indicates that there is a need for clear guidelines and procedural fairness in granting of the bail. This approach not only highlights the importance of presumption of innocence but also highlights the need for judicial sensitivity towards the socio-economic challenges faced by the accused in securing bail. 


Clarifying the concept of bail was highly required, considering the current scenario of the criminal side of the legal system. “Bail is the rule and jail is an exception” is not actually in practice, due to which several people end up in jail and serve a term for an offence they are not guilty of which leads to infringement of their certain fundamental rights as enshrined under the Indian Constitution. Receiving bail is not an easy process, it involves bail bond, the sureties which makes it a lengthy procedure. Jails get overcrowded and the number of cases also increase, since bail applications usually go unheard for a long time. The system of bail in India, must be improved, which can be achieved by setting uniform conditions, reasonable bail amounts which people can afford and which makes the process easier. The court has made an attempt to overturn the current scenario which is “jail is the rule and bail is the exception”, but better solutions are always required, else justice with respect to the same, will remain on papers only. 



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