S. 437(6) CrPC Doesn't Grant Indefeasible Right To Bail: Allahabad High Court Refuses Relief To Man Accused Of Harbouring ISI Agent
Incarcerated since 2015, the accused allegedly harboured a Pakistani ISI agent for 20 months and facilitated the transmission of classified Indian military data to Pakistan. The trial remains pending at the evidence stage, with not a single prosecution witness examined so far.
The Allahabad High Court recently refused to grant bail to a man accused of harbouring a Pakistani Inter-Services Intelligence (ISI) agent and passing sensitive data about the Indian Armed Forces to Pakistan.
A bench of Justice Ashutosh Srivastava also clarified that the provisions of Section 437(6) CrPC are not mandatory and cannot be interpreted to grant an absolute and indefeasible right to bail in favour of the accused.
For context, Section 437(6) CrPC provides that bail ought to be generally granted where the trial in a case triable by the Magistrate is not concluded within 60 days from the first date fixed for the prosecution evidence, unless the Magistrate, for reasons recorded, decides otherwise. The counterpart of Section 437(6) in the BNSS is Section 480(6).
Case in brief
Briefly put, a case was initially registered against the applicant (Mohd. Ashfaque Ansari) under Sections 3 and 9 of the Official Secrets Act and Section 14 of the Foreigners Act. However, after investigation, he was charge-sheeted under Sections 120-B, 212, 467, 468, and 471 of the IPC.
It was alleged that Ansari worked hand-in-glove with a co-accused (Mohd. Ezaz alias Mohd. Kalam), a Pakistani national and suspected ISI agent.
According to the State, the Pakistani agent resided at Ansari's house for nearly 20 months, during which he learned Hindi, photography, and video mixing.
Ansari allegedly provided the agent with all necessary logistics and assisted him in transmitting confidential information concerning the Indian Army and Indian Air Force via emails to ISI officers in Pakistan and an operative in Bangladesh.
Highly confidential and prohibited sensitive military documents were subsequently recovered from the agent.
It was argued that releasing the applicant on bail shall not be in the national interest. It is accordingly prayed that the applicant's bail application be rejected.
The counsel for the accused, on the other hand, argued that Ansari had been languishing in jail since November 27, 2015. Although the chargesheet was filed in 2021 and charges were framed in August 2024, the trial court is still at the stage of the prosecution's evidence, and not a single one of the 31 PWs has been examined.
His counsel relied on Section 437(6) CrPC and the Supreme Court's Judgment in Sahil Manoj Machari Vs. The State of Maharashtra, regarding the right to a speedy trial under Article 21, contends that prolonged incarceration without any progress in the trial entitles him to mandatory bail.
High Court's observations
The single judge, however, noted that while Section 437 (6) CrPC was enacted to prevent unnecessary and prolonged detention of undertrials, it includes a strict legislative caveat.
"…the provisions cannot be interpreted to given an indefeasible right to the accused of being released on bail, since the right is controlled by the later part of the provision which empowers a Magistrate to refuse bail by assigning reasons", the Court observed.
The High Court underscored that the provision is discretionary rather than mandatory, and that the right to a speedy trial is not placed on "that high a pedestal that it becomes absolute".
"The legislature in its wisdom has incorporated the provisions with a view to recognize right of an accused for a speedy trial with a view to protect individual liberty and at the same time has tried to strike a balance by allowing the Magistrate to refuse bail by assigning reasons in a given set of circumstances", the bench remarked.
The bench also took into consideration that the applicant is charged with assisting an ISI operative to undermine national data.
"In such circumstances, the Court is of the opinion that the personal liberty of the applicant cannot be placed over and above the security of the nation", Justice Srivastava noted.
However, taking serious note of the fact that the applicant has been incarcerated for over a decade, the High Court directed the Trial Court to fix short dates and conclude the trial expeditiously within six months.
Case Title - Mohd. Ashfaque Ansari Alias Ashfaque Ansari Versus State of U.P. 2026 LiveLaw (AB) 379
Case citation: 2026 LiveLaw (AB) 379