Preparing Defence Strategy & Gathering Evidence Valid Grounds For Bail : Allahabad High Court Clarifies 'Stage' & 'Parameters'

In a significant verdict, the Allahabad High Court recently held that conceptualizing defence strategy, gathering and adducing defence evidence and effectively conducting the defence case can constitute valid grounds for granting bail, but only at an appropriate stage of the trial. A bench of Justice Ajay Bhanot, while deciding a batch of 18 (second) bail applications, ruled that the right to prepare and conduct an effective defence is an essential component of a fair trial and therefore flows directly from Article 21 of the Constitution of India. "In fact grant of bail for defence (in appropriate circumstances and at the apposite stage of trial) is the most critical safeguard evolved by the Courts to secure equal and fair justice to all accused persons especially those belonging to disadvantaged classes", the Court held. The judge clarified that while such bail cannot be claimed as a matter of course, it can be considered once the prosecution evidence is concluded or nearing closure, particularly when proceedings under Section 313 CrPC (Section 351 BNSS) are about to commence and the accused needs liberty to prepare and present defence evidence. For context, the Court was dealing with a common question across the 18 connected bail pleas (later allowed by HC), all filed at a stage when prosecution evidence had either concluded or was close to conclusion. The central issue framed by the bench was: "…whether gathering of defence evidence, preparation of defence strategy and effectively prosecuting the defence case in a trial can be a ground for granting bail? If the answer is in the affirmative, what are the parameters on which the bail can be granted for framing a defence strategy, collecting defence evidence and conduct of defence and at what stage?" Contentions Raised Counsels appearing for the applicants argued that the right to fair trial includes the right to an effective defence, which becomes meaningless if the accused remains incarcerated during the defence stage. Counsel submitted that as prosecution evidence was already over, there was no likelihood of tampering with witnesses and denial of bail at this point would cripple the defence, particularly due the fact that the accused belong to socio-economically marginalized backgrounds. On the other hand, the Additional Advocate General for the State contended that bail cannot be granted merely for the preparation of defence, as that would create an unworkable precedent and could lead to misuse. The State's counsel also argued that grant of bail must remain confined to established legal grounds and that the victim's rights and the integrity of the trial must also be preserved. Court's Observations In its 63-page verdict, the Court noted that while grant of bail is an exercise of judicial discretion, it must be guided by settled parameters subject to the gravity of the offence, nature of evidence and potential interference with the trial. Justice Bhanot further observed that the right of bail, though sourced in statute, is "never beyond" the oversight of Part III of the Constitution and that bail jurisprudence has been constitutionally anchored in Article 21, which protects both liberty and fair trial. Emphasizing the need for parity and fairness between prosecution and defence, the Court observed thus: "The criminal justice system is pivoted on a prosecution narrative which is built with the vast resources of the State and wide investigatory powers of the police. The State pumps huge resources and employs professional investigators to investigate a criminal offence. The State thereafter prosecutes the criminal case against the accused also bears the expenses of the same. On the other side of the scale is the accused person who is completely lacking in such resources and investigation skills to gather evidence". The Court further observed that on many occasions, criminal investigations suffer from a pro-prosecution bias and in such circumstances, grant of bail for defence becomes a significant safeguard enabling the accused to collect and produce exculpatory evidence and effectively prosecute their defence. "The ability of an accused to conceptualise a defence strategy, gather evidence and prosecute his defence in the trial efficaciously may also be compromised by continued incarceration after prosecution evidence has concluded", the Court noted. Stressing that constitutional courts must prevent the denial of justice to the accused, the Court said that the right to prepare and conduct a defence is intrinsic to the concept of fair trial and hence forms part of the right to life and personal liberty under Article 21. "Grant of bail to an accused for conducting defence after considering all relevant factors in the circumstances of a case and at the appropriate stage of trial for the aforesaid purposes would realize the legislative intent ...

Preparing Defence Strategy & Gathering Evidence Valid Grounds For Bail : Allahabad High Court Clarifies 'Stage' & 'Parameters'

Sparsh Upadhyay

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