Bail & Personal Liberty : Notable Supreme Court Judgments Of 2022

It is to be noted that the judgments/orders are in no specific order relating to relevance or timeline on when it was delivered by the Court.

Democracy Can Never Be A Police State

In a landmark case, the Top Court, in June asked the Union Government to introduce a special enactment like a "Bail Act" to streamline the grant of bail in the case of Satender Kumar Antil vs Central Bureau Of Investigation. The Court also stressed the importance of the rule "bail over jail" and issued a slew of guidelines to prevent unnecessary arrest and remand.

"Once again, we have to reiterate that 'bail is the rule and jail is an exception' coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21", the judgment stated.

A Bench of Justices Sanjay Kishan Kaul and MM Sunderesh added that any non-compliance with Sections 41 and 41A of the Criminal Procedure Code at the time of arrest would entitle the accused to bail.

The Court was of the view that the problem of flooding of under-trial prisoners is caused mostly due to unnecessary arrests, which are carried out in violation of Section 41 and 41A of the CrPC and the directions issued in the Arnesh Kumar judgment.

Case Title: Satender Kumar Antil vs Central Bureau Of Investigation.

Unexplained, Avoidable & Prolonged Delay In Concluding Trial, Appeal Or Revision Would Be A Factor For Consideration Of Bail

As part of the abovementioned case, the Supreme Court held that an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would be a factor for consideration of bail.

A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh noted that it expects the Courts to comply with Section 309 of the Cr.P.C., which, though contemplates proceedings to be held on a day-to-day basis, curves out exceptions and grants power to Courts to postpone or adjourn proceedings.

However, the Bench was of the view, that in case of any unreasonable delay, the accused ought to get the benefit of the same, notwithstanding the benefit that might enure to the accused under Section 436A of the Code.

Case Title: Satender Kumar Antil vs Central Bureau Of Investigation.

Hold On Sedition Law Under IPC

In a historic development, the Supreme Court, in May, ordered that the 152-year old sedition law under Section 124A of the Indian Penal Code should be effectively kept in abeyance till the Union Government reconsiders the provision.

In an interim order, the Court urged the Centre and the State governments to refrain from registering any FIRs under the said provision while it was under re-consideration.

A bench comprising the then Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli held that all pending trials, appeals and proceedings with respect to charges framed under Section124 A be kept in abeyance. Adjudication with respect to other sections may proceed with no prejudice be caused to the accused, it held.

The bench said in its order :

"We hope and expect Centre and State Governments will refrain from registering any FIR, continuing investigation, or taking coercive steps under Section 124A IPC when it is under reconsideration. It will be appropriate not to use this provision of law till further re-examination is over."

The Court also held that those already booked under Section 124A IPC and are in jail can approach the concerned courts for bail. It has also been ruled that if any fresh case is registered appropriate parties are at liberty to approach courts for appropriate relief and courts are requested to examine the relief sought taking into account the order passed by the court.

The Court's decision was welcomed by both the legal fraternity and citizens considering the fact that the stay on the provision was ordered amidst various arrests by the Centre and respective state governments.

Case Title: S.G. Vombatkere Vs Union Of India ( Wpc 682/2021) Editors Guild Of India And Anr. Vs Union Of India And Ors. (Wpc 552/2021)

Convicts Who've Completed 10 Years Of Sentence, Whose Appeals Won't Be Heard Soon, Should Be Released On Bail Unless There Are Other Reasons

The Supreme Court of India, in the second half of the year, opined that all persons who have completed 10 years of sentence, and whose appeals will not be heard in the near future, should be enlarged on bail, unless there are other reasons to deny them bail.

A division Bench of Justices Sanjay Kishan Kaul and Abhay Shreeniwas Oka was considering a batch of petitions of life convicts in jail whose appeals are pending before various High Courts.

"We can appreciate if any of the parties is delaying the bail itself but short of that, we are of the view, that all persons who have completed 10 years of sentence and appeal is not in near proximity of hearing, with no extenuating circumstances, should be enlarged on bail", the bench dictated in the order.

Case Title: Sonadhar v. State of Chhattisgarh SLP(Crl) No. 529/2021

Power Of Arrest Must be Pursued Sparingly By The Police

In July, the Supreme Court ordered the release of fact-checker Mohammed Zubair, co-founder of AltNews, on interim bail in all UP Police FIRs. A bench led by Justice DY Chandrachud observed that the existence of the power to arrest must be pursued sparingly by the Police.

The bench was of the view that there is "no justification" to keep Zubair in continued custody any further and subject him to diverse proceedings when the gravamen of allegations arises from the Tweets which form part of an investigation by Delhi Police, in which case he had already been granted bail.

The Court also refused to impose a bail condition that he should not tweet again.

"We can't say that he won't tweet again. It is like telling a lawyer that you should not argue. How can we tell a journalist that he will not write?... If there are any tweets against law, he will be answerable. How can we pass any anticipatory order that someone will not speak...", Justice Chandrachud had orally remarked during the hearing.

Case Title: Mohammed Zubair v. State of NCT of Delhi| WP (Crl) 21492/2022

Posting Anticipatory Bail Plea After 2 Months Can't Be Appreciated

In this case, the Court reiterated that "in a matter involving personal liberty, the Court is expected to pass orders in one way or other taking into account the merits of the matter at the earliest". The Court observed that "posting an application for anticipatory bail after a couple of months cannot be appreciated".

A Bench of Justices C. T. Ravikumar and Sudhanshu Dhulia was hearing an SLP assailing a Delhi High Court order passed on June 2. The High Court, after issuing notice in a bail application, posted it for hearing on August 31.

"At any rate, posting an application for anticipatory bail after a couple of months cannot be appreciated", the Court observed in its order.

Case Title: Anjay V. The State (Nct Of Delhi) & Anr | 2022 Livelaw (Sc) 555

No Accused Can Be Subjected To Unending Detention Pending Trial

Affirming the right of an accused to seek bail, the Supreme Court observed that no accused can be subjected to unending detention pending trial, especially when there is a presumption of innocence. The Court made this observation while remanding the bail application of Ashish Mishra in the Lakhimpur Kheri case to the High Court, after canceling the bail granted to him by the High Court.

A bench led by the Chief Justice of India NV Ramana set aside the Allahabad High Court's bail order as it was based on irrelevant considerations. While doing so, the Court remanded the bail application to the High Court for fresh consideration on merits, after affording an opportunity of hearing to the victims.

Case Title: Jagjeet Singh And Ors. v. Ashish Mishra @ Monu And Anr. Criminal Appeal No. 632 of 2022

Indefinite Adjournment In Anticipatory Bail Is Detrimental To Personal Liberty

This, perhaps, was one such principle that was reiterated by the Court a plethora of times this year. In this matter, the Supreme Court observed that indefinite adjournment in a matter relating to anticipatory bail, that too after admitting it, is detrimental to the valuable right of a person.

'When a person is before the Court and that too in a matter involving personal liberty, least what is expected is for such a person to be given the result one way or the other, based on the merit of his case and not push him to a position of uncertainty or be condemned without being heard when it matters", the bench headed by ex CJI NV Ramana had observed.

The petitioner had applied under Section 438 Cr.PC seeking a grant of anticipatory bail along with an I.A. seeking ex-parte ad-interim bail/interim protection. On 17.01.2022, while admitting the application, the High Court directed it to be listed for final hearing 'in due course'.

The bench, also comprising Justices AS Bopanna and Hima Kohli disapproved of the High Court's practice as a matter of procedure.

Case Title: Rajesh Seth vs State of Chhattisgarh | SLP (Crl) 1247/2022

Bail Cannot Be Cancelled Merely For Any Perceived Indiscipline By Accused Before Granting Bail

The Supreme Court observed that cancellation of bail cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail. The Court opined that unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with under Section 439(2) CrPC.

This observation was made by the Court in a case rooted in a dowry death incident. The Madhya Pradesh High Court had set aside a bail granted to an accused on the ground that the Trial Court, while granting bail, had not adverted to a relevant fact that the accused was absconding and was arrested only later. The accused (the mother in law of the deceased) was charged under offences under Sections 304B, 498A read with Section 34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act.

Case Title: Bhuri Bai vs State of Madhya Pradesh | 2022 LiveLaw (SC) 956

Bail Applications Must Be Decided As Expeditiously As Possible

The Supreme Court reiterated that bail applications must be decided as expeditiously as possible and not to be posted in due course of time.

The bench comprising Justices Ajay Rastogi and BV Nagarathna observed thus while considering a Special Leave Petition against an order passed by Chhattisgarh High Court dismissing an interim relief prayed in an anticipatory bail application. The High Court had admitted the bail petition and posted the matter for final hearing 'in due course'.

Whether it is pre-arrest bail or post-arrest bail (under Section 438 or 439 of the Code), bail applications must be decided as expeditiously as possible. Although the Court isn't supposed to give any guidelines for the disposal of the bail applications, it must be decided as expeditiously as possible and not to be posted in due course of time, the court said.

Case Title: Tulsi Ram Sahu vs State of Chhattisgarh | 2022 LiveLaw (SC) 764

Bail To 12 Convicts Who Were In Custody For More Than 14 Years

The Supreme Court enlarged 12 convicts on bail who were in custody for more than 14 years and whose bail applications were pending before the Allahabad High Court for years.

The bail was granted by the bench of Justices Indira Banerjee and AS Bopanna while considering a writ petition filed by the convicts seeking bail.

The convicts in the writ had further sought to issue directions to the High Court to bring to notice such cases to enable the High Court to grant bail in the matters expeditiously.

Case Title: Rajendra Singh & Ors v State of UP| Writ Petition (Criminal) 52/2022

Either Grant Bail Or Consider For Early Remission

Expressing concern about the long pendency of criminal appeals before the Allahabad High Court, the Supreme Court, in February, laid down some broad parameters that can be adopted by the High Court while granting bail.

"A list should be prepared for the ones who have served more than 14 years and is not repeat offender. In all these cases there is a high possibility that if they are released they may not be interested to also pursue their appeals. The second category can be one where people have served more than 10 years and in one go bail can be granted", the Court said.

A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh expressed disappointment in the manner the bail applications for accused who have been in custody for 10-17 years have been dealt with in the State of Uttar Pradesh.

The Bench was perturbed to note that even after serving 17 years in prison, the accused was refused bail only because of the unpreparedness of the Advocate representing them.

Case Title: Saudan Singh v. The State of Uttar Pradesh

Deprecates Practise Of HC judge Dismissing 45 Petitions Seeking Anticipatory Bail On Single Day For Non-Prosecution

The Supreme Court took exception to how a Judge of the Allahabad High Court dismissed almost 45 petitions seeking anticipatory bail on a single day, in the same fashion for non-prosecution.

In this regard, a Division Bench of Justices Ajay Rastogi and CT Ravikumar has sought a report from the Registrar of the High Court seeking reasons from the concerned High Court Judge for his rather peculiar conduct.

"We are not supposed to comment at this stage but direct the Registrar of the High Court of Allahabad to submit the report to this Court after obtaining from the concerned Judge (Krishan Pahal,J.) as to what prevailed upon him in passing the orders consistently almost in 45 matters at a given point of time on the same date dismissing them in the same fashion for non-prosecution, that too when one has approached the Court for protecting his liberty which is sacrosanct under Article 21 of the Constitution."

The Bench was considering a Special Leave Petition challenging the High Court's order which dismissed the anticipatory bail application of the petitioner for non-prosecution on September 29, 2022.

The counsel for the petitioner had informed the Court of the series of "stereo-typed orders" passed by the High Court Judge, dismissing the applications seeking pre-arrest bail in the same fashion.

"This kind of approach in passing orders is not acceptable by this Court at any cost", the Bench remarked while deprecating the High Court Judge's behavior.

Case Title: Rahul Sharma vs State of UP

Detention Beyond Release Date Violates Article 21

The Supreme Court directed the State of Chhattisgarh to pay Rs 7.5 Lakhs as compensation to a rape convict who was kept in prison beyond the period of sentence.

"When a competent court, upon conviction, sentenced an accused and in appeal, the sentence was modified upon confirmation of the conviction and then the appellate judgment had become final, the convict can be detained only up to the period to which he can be legally detained on the basis of the said appellate judgment.", the bench comprising Justices Ajay Rastogi and CT Ravikumar said.

Bhola Kumar was convicted in a rape case and sentenced to 12 years imprisonment. On 19 July 2018, the Chhattisgarh High Court confirmed his conviction, but reduced the sentence to 7 years of rigorous punishment. While considering his special leave petition, the Supreme Court noted that he had undergone 10 years 03 months and 16 days of custody as revealed from the custody certificate. Taking serious note of this, Superintendent of Central Jail, Ambikapur, was directed to file affidavit.

Case Title: Bhola Kumhar vs State Of Chhattisgarh | 2022 LiveLaw (SC) 589

Preventive Detention Can't Be Invoked For Ordinary Law & Order Situation

Stressing that the preventive detention law "strikes hard on the freedom and liberty of an individual, and cannot be exercised routinely", the Supreme Court has observed that "the powers to be exercised under this law are exceptional powers which have been given to the government for its exercise in an exceptional situation".

The Court has once again highlighted the distinction that while a law and order situation can be dealt with under the ordinary law of land, it is only when there is a public order situation that the invocation of the powers under the law of Preventive Detention is justified, absent which the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution as it encroaches upon the liberty and freedom of an individual.

The bench of Justices C. T. Ravikumar and Sudhanshu Dhulia was hearing an appeal against the March decision of the Telangana High Court by which the Habeas Corpus Writ Petition of the petitioner- wife challenging the order of prevention of detention of her husband had been dismissed.

Case Title: Shaik Nazneen V. The State Of Telangana & Ors.

Data Of Cases Where Prisoners Remain In Jail As They Can't Fulfil Bail Conditions

The Supreme Court called upon all the State Governments to issue directions to the jail authorities to submit certain particulars of under-trial prisoners who have been granted bail, but are still in prison as they were unable to meet bail conditions. A Bench led by Justices Sanjay Kishan Kaul and A.S. Oka categorically asked for the following information in a chart –

1. Name of detenu;
2. Offence under which they were charged;
3. Date when bail was granted;
4. Bail conditions that were not met;
5. How long has the period been since the bail was granted; and
6. Date of bail order.

The Bench asked the State Governments to ensure that the requisite information is made available to them by the jail authorities within a period of 15 days. Thereafter, within a week, the State Governments are to forward the data to NALSA, that would make suggestions wherever necessary and would also render legal assistance to the detenues.

Case Title: Sonadhar v. State of Chattisgarh SLP(Crl) No. 529/2021

Guidelines On Disposing Cases Through Plea Bargaining, Compounding Of Offences & Probation Of Offenders Act

The Supreme Court issued several guidelines for disposal of criminal cases by resorting to the triple method of plea bargaining, compounding of offences and under the Probation of Offenders Act, 1958. These guidelines are aimed at expediting the trial of cases in minor offences and avoid long incarceration of persons in such cases.

Case Title : RE: POLICY STRATEGY FOR GRANT OF BAIL

Imposes Rs 1 Lakh Cost On ED Officer For Filing Petition Against Bail Granted To Cancer Patient

The Court came down heavily on the Directorate of Enforcement (ED) for filing a Special Leave Petition seeking to interfere with a bail order granted by the Allahabad High Court to a man suffering from Malignancy and Cancer and dismissed the petition with a cost of Rs 1 lakh.

In the words of the Court, the SLP was just a wasting the stationery and the legal fees apart from the Court's precious time.

Case Title : Assistant Director Directorate Of Enforcement Versus Kamal Ahsan & Anr.

Bail granted to activists, politicians of opposition parties

The year also witnessed the Supreme Court granting bail/interim bail to activists, journalists and politicians belonging to opposition parties. Activist Teesta Setalvad and journalist Siddique Kappan got relief from the Supreme Court. The Supreme Court also granted relief to P Varavara Rao, poet-activist who is an undertrial prisoner in the Bhima Koregaon case. The Court also allowed the request of activist Gautam Navlakha, another accused in the Bhima Koregaon case, for shifting him to house arrest from Taloja prison on health grounds. The Top Court refused to interfere with the relief granted by the High Court to NCP leader Anil Deshmukh. SP leader Azam Khan is another politician who got relief from the Supreme Court.