# Vikash Kanjad v. State of U.P

- **Citation:** (2025) 10 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-14
- **Case number:** Criminal Misc. Bail Application No. 19170 of 2025
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikash-kanjad-v-state-of-u-p-52693
- **Pages:** 38

## Headnote

50 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
Whether, after conclusion or near conclusion of
prosecution evidence, an accused can be
enlarged on bail to enable effective preparation
and conduct of defence, including gathering of
defence
evidence
and
participation
in
proceedings under Section 313 Cr.P.C. and
Section 233 Cr.P.C., and if so, what are the
parameters governing grant of such bail,
consistent with the guarantee of fair trial under
Article 21 of the Constitution of India.

Headnotes
Code of Criminal Procedure, 1973 - ss.
439, 313, 233
-
Bharatiya Nagarik
Suraksha Sanhita, 2023 - ss. 351, 256 -
Bail
-
Second
bail
application
-
Prosecution evidence concluded - Bail for
preparation and conduct of defence - Fair
trial - Article 21 of Constitution -
Parameters for grant of bail.

Held:
Preparation
of
defence,
including
conceptualisation of defence strategy, gathering
and adducing defence evidence, and effective
participation in proceedings under Section 313
Cr.P.C. and thereafter under Section 233 Cr.P.C.,
is not a mere formality but an essential and
substantive component of a fair trial, flowing
directly from Article 21 of the Constitution of
India. [Paras 38, 44-46, 82-83]

After the prosecution evidence has concluded or
is nearing completion, considerations such as
possibility of influencing witnesses recede into
the background, whereas the need to ensure
that the accused is afforded a real and
meaningful
opportunity
to
defend
himself
assumes prominence. Continued incarceration at
such a stage may disable the accused from
gathering defence evidence, obtaining effective
legal assistance, and prosecuting his defence,
thereby rendering the trial unfair. [Paras 58-59,
82-84]

Grant of bail for the purpose of defence is
neither automatic nor mechanical. The Court
must examine the nature and gravity of the
offence, criminal antecedents, conduct of the
accused during investigation and trial, likelihood
of misuse of liberty, and whether further
detention would operate punitively rather than
serve the ends of justice. [Paras 84-90]

The Court took judicial notice of structural
imbalances in the criminal justice system,
particularly the disparity between the resources
of the prosecution and the position of accused
persons
belonging
to
socio-economically
marginalised
sections,
and
held
that
constitutional courts are duty-bound to reinforce
safeguards to prevent miscarriage of justice.
[Paras 48-60]

It was held that grant of bail for defence, at the
appropriate
stage
and
upon
cumulative
consideration of relevant factors, is a critical
safeguard to realise the legislative intent
underlying Sections 313 and 233 Cr.P.C. and to
secure
one
of
the
most
indispensable
ingredients of a fair trial. [Paras 61-62, 82-90]

In the facts of the present case, the prosecution
evidence having concluded, the applicant having
cooperated in investigation and trial, absence of
criminal history, absence of any allegatio

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10 All. Vikash Kanjad Vs. State of U.P.
49
an effective defence strategy and prevent
her from gathering evidence in her support
and tendering the same before the learned
trial court to establish her innocence.
Further detention of the applicant will be
detrimental to her defence in the trial and
inconsistent with the norms of fairness in
criminal processual jurisprudence. In fact
such detention of the applicant in these
facts will be punitive in nature.

XVII. Denial of bail in these facts
and
circumstances
will
defeat
the
legislative intent of Section 313 Cr.P.C.
and Section 323 Cr.P.C.

XVIII. The applicant does not
have any criminal history apart from the
instant case.

XIX. The applicant is not a flight
risk. The applicant being a law abiding
citizen has always cooperated with the
investigation and undertakes to cooperate
with the trial proceedings. There is no
possibility of the applicant influencing
witnesses, tampering with the evidence or
reoffending.

104. In wake of the preceding
discussion
and
without
making
any
observations on the merits of the case, the
bail application is allowed.

105. Let the applicant- Asha be
released on bail in the aforesaid case crime
number, on furnishing a personal bond and
two sureties each in the like amount to the
satisfaction of the court below. The
following conditions be imposed in the
interest of justice:-

(i) The applicant will not tamper
with the evidence or influence any witness
during the trial.

(ii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.

106. The learned trial court is directed
to fix the sureties after due application of
mind in light of the judgement passed by
this Court in Arvind Singh v. State of U.P.
Thru. Prin. Secy. Home Deptt. 45

107. The learned trial court shall
ensure that the right of bail of the applicant
granted by this Court is not frustrated by
arbitrary demands of sureties or onerous
conditions which are unrelated to the
socioeconomic status of the applicant.

108. It is further directed that in case
the applicant does not cooperate in the trial
or adopts dilatory tactics, the learned trial
court shall record a finding to this effect
and cancel the bail without recourse to this
Court.
----------
(2025) 10 ILRA 49
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.10.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 19170 of
2025
&
Connected With Other Cases

Vikash Kanjad ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Yadavendra Dwivedi

Counsel for the Opposite Party:
G.A
50 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
Whether, after conclusion or near conclusion of
prosecution evidence, an accused can be
enlarged on bail to enable effective preparation
and conduct of defence, including gathering of
defence
evidence
and
participation
in
proceedings under Section 313 Cr.P.C. and
Section 233 Cr.P.C., and if so, what are the
parameters governing grant of such bail,
consistent with the guarantee of fair trial under
Article 21 of the Constitution of India.

Headnotes
Code of Criminal Procedure, 1973 - ss.
439, 313, 233
-
Bharatiya Nagarik
Suraksha Sanhita, 2023 - ss. 351, 256 -
Bail
-
Second
bail
application
-
Prosecution evidence concluded - Bail for
preparation and conduct of defence - Fair
trial - Article 21 of Constitution -
Parameters for grant of bail.

Held:
Preparation
of
defence,
including
conceptualisation of defence strategy, gathering
and adducing defence evidence, and effective
participation in proceedings under Section 313
Cr.P.C. and thereafter under Section 233 Cr.P.C.,
is not a mere formality but an essential and
substantive component of a fair trial, flowing
directly from Article 21 of the Constitution of
India. [Paras 38, 44-46, 82-83]

After the prosecution evidence has concluded or
is nearing completion, considerations such as
possibility of influencing witnesses recede into
the background, whereas the need to ensure
that the accused is afforded a real and
meaningful
opportunity
to
defend
himself
assumes prominence. Continued incarceration at
such a stage may disable the accused from
gathering defence evidence, obtaining effective
legal assistance, and prosecuting his defence,
thereby rendering the trial unfair. [Paras 58-59,
82-84]

Grant of bail for the purpose of defence is
neither automatic nor mechanical. The Court
must examine the nature and gravity of the
offence, criminal antecedents, conduct of the
accused during investigation and trial, likelihood
of misuse of liberty, and whether further
detention would operate punitively rather than
serve the ends of justice. [Paras 84-90]

The Court took judicial notice of structural
imbalances in the criminal justice system,
particularly the disparity between the resources
of the prosecution and the position of accused
persons
belonging
to
socio-economically
marginalised
sections,
and
held
that
constitutional courts are duty-bound to reinforce
safeguards to prevent miscarriage of justice.
[Paras 48-60]

It was held that grant of bail for defence, at the
appropriate
stage
and
upon
cumulative
consideration of relevant factors, is a critical
safeguard to realise the legislative intent
underlying Sections 313 and 233 Cr.P.C. and to
secure
one
of
the
most
indispensable
ingredients of a fair trial. [Paras 61-62, 82-90]

In the facts of the present case, the prosecution
evidence having concluded, the applicant having
cooperated in investigation and trial, absence of
criminal history, absence of any allegation of
witness-tampering, and the need to enable
effective defence, constituted sufficient grounds
for grant of bail. The bail application was
accordingly allowed, subject to conditions.
[Paras 101-105]

Bail Application allowed. (E-14)

Case Law Cited
Rajesh Ranjan Yadav alias Pappu Yadav v.
CBI through its Director,(2007) 1 SCC 70;
X v. State of Rajasthan and another,
Special
Leave
Petition
(Criminal)
No.13378 of 2024; Kalyan Chandra Sarkar
v. Rajesh Ranjan alias Pappu Yadav and
another, (2004) 7 SCC 528; Ram Govind
Upadhyay v. Sudarshan Singh and others,
2002 (3) SCC 598; Brijmani Devi v. Pappu
Kumar and another, 2022 (4) SCC 497;
Ishwarji Nagaji Mali v. State of Gujarat
and another, 2022 (6) SCC 609; State of
U.P. v. Amarmani Tripathi, (2005) 8 SCC
21; Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565; Nimmagadda
Prasad v. Central Bureau of Investigation,
(2013) 7 SCC 466; Gurcharan Singh and
others v. State (Delhi Admn.), (1978) 1
SCC 118; Lt. Col. Prasad Shrikant Purohit
10 All. Vikash Kanjad Vs. State of U.P.
51
v. State of Maharashtra, (2018) 11 SCC
458; P. Chidambaram v. Directorate of
Enforcement, (2020) 13 SCC 791; Anil
Kumar Yadav v. State (NCT of Delhi) and
another, (2018) 12 SCC 129; Prasanta
Kumar Sarkar v. Ashis Chatterjee and
another, (2010) 14 SCC 496; Gudikanti
Narasimhulu v. Public Prosecutor, High
Court
of
A.P.,
(1978)
1
SCC
240;
Rajasthan v. Balchand alias Baliay, (1977)
4 SCC 308; Mohd. Muslim alias Hussain v.
State (NCT of Delhi), (2023) 18 SCC 166;
Sheikh Javed Iqbal @ Ashfaq Ansari @
Javed Ansari Vs State of U.P., 2024 (8)
SCC 293; Nikesh Tarachand Shah Vs Union
of India and another, 2018(11) SCC 1;
Vaman Narain Ghiya v. State of Rajasthan,
(2009) 2 SCC 281; Sanjay Chandra v. CBI,
(2012) 1 SCC 40; Prem Prakash v. Union
of
India
through
the
Directorate
of
Enforcement, (2024) 9 SCC 787; Satender
Kumar
Antil
v.
Central
Bureau
of
Investigation and another, (2022) 10 SCC
51; Hussainara Khatoon and others Vs
Home Secretary, State of Bihar, Patna,
AIR 1979 SC 1369; Maneka Gandhi v.
Union of India, AIR 1978 SC 597; Sovaran
Singh Prajapati v. State of Uttar Pradesh,
2025 SCC OnLine SC 351; Vinubhai
Haribhai Malaviya and others v. State of
Gujarat and another, (2019) 17 SCC 1;
Zahira Habibulla H. Sheikh and another v.
State of Gujarat and others, (2004) 4 SCC
158; J. Jayalalithaa and others v. State of
Karnataka and others, (2014) 2 SCC 401;
Rattiram and others v. State of Madhya
Pradesh through Inspector of Police,
(2012) 4 SCC 516; State of Gujarat v.
Kishanbhai and others, (2014) 5 SCC 108;
Raj Kumar @ Suman v. State (NCT of
Delhi), (2023) 17 SCC 95; Emperor Vs H.L.
Hutchinson and Another, AIR 1931 Alld.
356; Babu Singh v. State of U.P., (1978) 1
SCC 579; Moti Ram v. State of M.P.,
(1978) 4 SCC 47; Prabhat Gangwar v State
of UP (Criminal Misc. Bail Application No.
2586 of 2023), Irfan v. State of U.P,
Special Leave Petition (Criminal) No.8984
of 2025; Rajesh Ranjan Yadav alias Pappu
Yadav v. CBI Through its Director, (2007)
1 SCC 70; X v. State of Rajasthan and
another,
S.L.P.
No.13378
of
2024;
Chandrapal Singh v. State of U.P. and
another, 2023 SCC OnLine All 2443; Vinay
Prakash Singh v. Sameer Gehlaut, 2022
SCC OnLine SC 1595.

List of Acts / Statutes
Constitution
of
India;
Code
of
Criminal
Procedure, 1973; Bharatiya Nagarik Suraksha
Sanhita, 2023; Indian Penal Code, 1860.

List of Keywords
Bail for defence; Fair trial; Article 21; Second
bail
application;
Prosecution
evidence
concluded; Defence evidence; Judicial discretion
in bail; Socio-economic marginalisation.

Case Arising From
Case Crime No. 367 of 2023, Police Station
Bilhaur,
District
Kanpur
Dehat,
under
Sections 364-A, 302 and 201 IPC.

Appearance for Parties
For the Applicant: Sri Yadavendra Dwivedi
For the State: Additional Government Advocate

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgment is being structured in
the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Issue arising for consideration
III
Submissions of learned counsels
for the parties
IV
Bail: Grounds for grant/denial of
bail
V
Constitutional law and bails
VI
Fair trial and Defence of an
accused
VII
Defence of an accused & Bail:
A
Accused and the criminal
justice system
B
Criminal investigations and
defence evidence
C
Section
313
Cr.P.C.
(Section
351
BNSS),
Section
233
52 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C.(Section 256 BNSS)
and the accused
D
Realizing the rights of
defence and bails
E
Grant of bail for defence :
Case Laws
VIII
Conclusions: Parameters for grant
of bail to prepare and conduct
defence
IX
Post Script:
A
Supreme Court judgement
in Irfan v. State of U.P.
B
Noise
C
Constitutional Dialogues &
Comity of Constitutional
Courts
X
Order on bail application

I. Introduction:

2. In this bail application and all
companion bail applications prosecution
evidence is near conclusion or has closed.
Proceedings under Section 313 Cr.P.C. will
be shortly set in motion, and thereafter
defence evidence will be received. These
are second bail applications. In all bail
applications the primary ground for grant
of bail is to conduct effective defence of
the case.

II. Issue arising for consideration:

3. The issue that has arisen for
consideration in this bail application and
the connected bail applications is 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?

4. Heard Shri N.I. Jafri, learned Senior
Counsel assisted by Shri Sadrul Islam Jafri,
learned counsel, Shri Dharmendra Singhal,
learned Senior Counsel assisted by Shri
Shivendra Singhal, learned counsel, Shri
Rajiv Lochan Shukla, learned counsel, Shri
Sheshadri Trivedi, learned counsel, Shri
Vikrant Rana, learned counsel, Shri Madhu
Ranjan Pandey, learned counsel, Shri
Irshad Ahmad, learned counsel, Shri
Aishwarya Pratap Singh, learned counsel
assisted by Shri Amiruddin Siddique,
learned counsel, Shri Tripurari Pal, learned
counsel, Shri M.P. Srivastava, learned
counsel, Shri Shailesh Pandey, learned
counsel, Shri Mohit Kumar Jaiswal, learned
counsel, Shri Shashi Kumar Mishra,
learned
counsel,
Shri
Nasiruzzaman,
learned counsel, Shri Gireesh Chandra
Sharma, learned counsel, Shri Yadvendra
Dwivedi, learned counsel, Shri Rahul
Saxena, learned counsel, Shri Bharat Singh,
learned counsel, Shri Sandeep Pandey,
learned counsel, Shri Narendra Singh,
learned counsel, Shri Azhar Hussain,
learned counsel, Shri Jitendra Singh,
learned counsel, Shri Saket Jaiswal, learned
counsel and Shri Samrat Vikram Singh,
learned counsel for the applicants.

Shri
Rajiv
Lochan
Shukla,
learned counsel for the applicant (as
Hon'ble Rajiv Lochan Shukla, J. then was)
has since been elevated to the Bench of this
Court.

4.1. Shri Ashok Mehta, learned
Additional Advocate General assisted by
Shri Paritosh Kumar Malviya, learned
A.G.A.-I and Shri Chandan Agrawal,
learned A.G.A.-I for the State.
10 All. Vikash Kanjad Vs. State of U.P.
53

III. Submissions of learned counsels
for the parties:

5. The hearings on the common legal
issue arising in all the companion bail
applications happened on various dates.
Learned counsels for the applicants in all
matters
have
made
the
following
submissions on the common legal issue that
has arisen for consideration:

I. The right of bail is sourced to
statute, however, it has deep roots in
Article 21 of the Constitution of India. The
Court should adopt a liberal approach while
considering bail applications. "Bail not
jail" is the guiding principle of the law of
bails.

II. The defence of an accused is a
primary ingredient of a fair trial.

III.
The
prosecution
has
concluded its evidence. In some connected
cases prosecution evidence is nearing
closure. There is no possibility of the
applicant(s)
influencing
witnesses.
Cooperation of the applicant(s) in the
investigations and his/her conduct during
the trial is a relevant factor to be
considered.

IV. The police investigations
were
incompetent
and
overlooked
evidences which established the innocence
of the applicant(s).

V.
The
applicant(s)
had
cooperated in the
investigations and
faithfully joined the trial proceedings.

VI. The applicant(s) did not
tamper with the evidence nor influence
witnesses.

VII. Denial of bail for defence in
the circumstances and at this stage of the
trial in all these cases will compromise the
defence and result in miscarriage of justice.
The refusal to grant bail for gathering
defence and to conduct effective pairokari
of the case will violate the fundamental
right of fair trial of the applicant(s) who
belongs
to
socio
economically
marginalized sections of the citizenry.

6.
Shri
Ashok
Mehta,
learned
Additional Advocate General assisted by
Shri Paritosh Kumar Malviya, learned
A.G.A.-I and Shri Chandan Agrawal,
learned A.G.A.-I for the State have made
the following submissions :

I. Bail cannot be granted for
defence purposes as it would entail grant of
bail in all cases [Ref: Rajesh Ranjan
Yadav alias Pappu Yadav v. CBI
through its Director1]

II. While considering grant of
bail, right of victim and the perspective of
the prosecution also have to be considered.

III.
Once
the
trial
has
commenced, bail cannot be granted. [Ref:
X v. State of Rajasthan and another2]

IV. Bail: Grounds for grant/denial
of bail:

7. Grant of bail is an exercise of
judicial discretion. Over the years judicial
conventions have developed parameters
which guide exercise of judicial power in
bail
matters.
Law
of
bails
is
an
accumulation of such judicial conventions.
The aforesaid conventions which were
adhered to by courts while considering bail
applications later crystallized into case
laws. In fact judicial conventions have been
54 INDIAN LAW REPORTS ALLAHABAD SERIES
so strong that till very recently case laws
pertaining to considerations for grant of
bail have been sparse.

8. The criteria for grant of bail so
evolved over the years include the gravity
of offence and its impact on society. The
nature of implicatory evidence against an
accused is an important factor. The
requirements of the investigation agency
too need to be factored in. For example
need of police custody of an accused for
collecting evidence or making recoveries or
preventing disappearance of evidence may
need
examination
in
the
facts
and
circumstances of a case.

9. The ability of an applicant to
influence
witnesses
or
tamper
with
evidences in general is a germane factor for
grant of bail since the same directly bears
upon the sanctity of the trial process.
Criminal history of an accused and
possibilities of reoffending, or the accused
being a flight risk who may escape the
process of law to cheat justice are also
important issues for consideration while
deciding bail applications.

10. The primary purpose of bails in
criminal cases is to initially ensure that
accused persons support the investigations,
and later to secure the presence of the
accused at the trial.

11. The discussion shall now be
fortified by authorities in point.

12. Acknowledging that the law in
regard to grant or refusal of bail is well
settled, the Supreme Court in Kalyan
Chandra Sarkar v. Rajesh Ranjan alias
Pappu Yadav and another3 stated the
need for exercise of judicial discretion in a
just manner while granting bails, and also
enunciated
the
grounds
for
granting
subsequent bails:

"11. The law in regard to grant or
refusal of bail is very well settled. The
court granting bail should exercise its
discretion in a judicious manner and not as
a matter of course. Though at the stage of
granting bail a detailed examination of
evidence and elaborate documentation of
the merit of the case need not be
undertaken, there is a need to indicate in
such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged
of having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind. It is also
necessary for the court granting bail to
consider among other circumstances, the
following factors also before granting bail;
they are:

(a) The nature of accusation and
the severity of punishment in case of
conviction and the nature of supporting
evidence.

(b) Reasonable apprehension of
tampering with the witness or apprehension
of threat to the complainant.

(c) Prima facie satisfaction of the
court in support of the charge.

12. In regard to cases where
earlier bail applications have been rejected
there is a further onus on the court to
consider the subsequent application for
grant of bail by noticing the grounds on
which earlier bail applications have been
rejected and after such consideration if the
court is of the opinion that bail has to be
granted then the said court will have to give
specific reasons why in spite of such earlier
10 All. Vikash Kanjad Vs. State of U.P.
55
rejection the subsequent application for bail
should be granted.

19...The
admissibility
or
otherwise of the confessional statement and
the effect of the evidence already adduced
by the prosecution and the merit of the
evidence that may be adduced hereinafter
including that of the witnesses sought to be
recalled are all matters to be considered at
the stage of the trial."

13. The need for reasons while
granting bail but avoiding conclusive
findings in the order was reiterated in
Kalyan Chandra Sarkar (supra):

"18. We agree that a conclusive
finding in regard to the points urged by
both the sides is not expected of the court
considering a bail application. Still one
should not forget, as observed by this Court
in the case Puran v. Rambilas [(2001) 6
SCC 338 : 2001 SCC (Cri) 1124] : (SCC p.
344, para 8)

"Giving reasons is different from
discussing merits or demerits. At the stage
of granting bail a detailed examination of
evidence and elaborate documentation of
the merits of the case has not to be
undertaken. ... That did not mean that
whilst granting bail some reasons for prima
facie concluding why bail was being
granted did not have to be indicated." We
respectfully agree with the above dictum of
this Court. We also feel that such
expression of prima facie reasons for
granting bail is a requirement of law in
cases where such orders on bail application
are appealable, more so because of the fact
that the appellate court has every right to
know the basis for granting the bail.
Therefore, we are not in agreement with the
argument addressed by the learned counsel
for the accused that the High Court was not
expected even to indicate a prima facie
finding on all points urged before it while
granting bail, more so in the background of
the facts of this case where on facts it is
established
that
a
large
number
of
witnesses who were examined after the
respondent was enlarged on bail had turned
hostile and there are complaints made to
the court as to the threats administered by
the respondent or his supporters to
witnesses
in
the
case.
In
such
circumstances, the Court was duty-bound
to apply its mind to the allegations put forth
by the investigating agency and ought to
have given at least a prima facie finding in
regard to these allegations because they go
to the very root of the right of the accused
to seek bail. The non-consideration of these
vital facts as to the allegations of threat or
inducement made to the witnesses by the
respondent during the period he was on bail
has vitiated the conclusions arrived at by
the High Court while granting bail to the
respondent. The other ground apart from
the ground of incarceration which appealed
to the High Court to grant bail was the fact
that a large number of witnesses are yet to
be examined and there is no likelihood of
the trial coming to an end in the near
future. As stated hereinabove, this ground
on the facts of this case is also not
sufficient either individually or coupled
with the period of incarceration to release
the respondent on bail because of the
serious allegations of tampering with the
witnesses made against the respondent."

14. For importance of reasoned bail
orders, (also see: para 3 Ram Govind
Upadhyay v. Sudarshan Singh and
others4, para 35 Brijmani Devi v. Pappu
Kumar and another5 and para 11
Ishwarji Nagaji Mali v. State of Gujarat
and another6)
56 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The Supreme Court in State of
U.P. v. Amarmani Tripathi7 detailed the
factors to be examined while deciding bail
applications:

"18. It is well settled that the
matters to be considered in an application
for bail are (i) whether there is any prima
facie or reasonable ground to believe that
the accused had committed the offence; (ii)
nature and gravity of the charge; (iii)
severity of the punishment in the event of
conviction; (iv) danger of the accused
absconding or fleeing, if released on bail;
(v) character, behaviour, means, position
and standing of the accused; (vi) likelihood
of the offence being repeated; (vii)
reasonable apprehension of the witnesses
being tampered with; and (viii) danger, of
course, of justice being thwarted by grant
of bail [see Prahlad Singh Bhati v. NCT,
Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri)
674] and Gurcharan Singh v. State (Delhi
Admn.) [(1978) 1 SCC 118 : 1978 SCC
(Cri) 41 : AIR 1978 SC 179] ]. While a
vague allegation that the accused may
tamper with the evidence or witnesses may
not be a ground to refuse bail, if the
accused is of such character that his mere
presence at large would intimidate the
witnesses or if there is material to show
that he will use his liberty to subvert justice
or tamper with the evidence, then bail will
be refused. We may also refer to the
following principles relating to grant or
refusal of bail stated in Kalyan Chandra
Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528
: 2004 SCC (Cri) 1977] : (SCC pp. 535-36,
para 11)

"11.....It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also
before granting bail; they are:

(a) The nature of accusation and
the severity of punishment in case of
conviction and the nature of supporting
evidence.

(b) Reasonable apprehension of
tampering with the witness or apprehension
of threat to the complainant.

(c) Prima facie satisfaction of the
court in support of the charge."

16. Thereafter, the Supreme Court in
Amarmani Tripathi (supra) reiterated the
need to avoid a detailed examination of
evidence by observing :

"22.
While
a
detailed
examination of the evidence is to be
avoided while considering the question of
bail, to ensure that there is no prejudging
and no prejudice, a brief examination to be
satisfied about the existence or otherwise of
a prima facie case is necessary. An
examination of the material in this case, set
out above, keeping in view the aforesaid
principles,
disclose
prima
facie,
the
existence of a conspiracy to which
Amarmani and Madhumani were parties.
The contentions of the respondents that the
confessional statement of Rohit Chaturvedi
is inadmissible in evidence and that that
should be excluded from consideration, for
the purpose of bail is untenable."

17. Gurbaksh Singh Sibbia v. State
of Punjab8 arose out of proceedings
pertaining to a grant of anticipatory bail.
However after recognizing the distinctions
between the anticipatory bail and right to
ordinary bail, the Supreme Court in
Gurbaksh Singh Sibbia (supra) noticed
past authorities of high standing which had
examined the object of ordinary bail and
recognized that no hard and fast rule or
10 All. Vikash Kanjad Vs. State of U.P.
57
inflexible principle regarding the exercise
of discretion in ordinary bail matters can be
laid down by observing :

"27. It is not necessary to refer to
decisions which deal with the right to
ordinary bail because that right does not
furnish an exact parallel to the right to
anticipatory bail. It is, however, interesting
that as long back as in 1924 it was held by
the High Court of Calcutta in Nagendra v.
King-Emperor [AIR 1924 Cal 476, 479,
480 : 25 Cri LJ 732] that the object of bail
is to secure the attendance of the accused at
the trial, that the proper test to be applied in
the solution of the question whether bail
should be granted or refused is whether it is
probable that the party will appear to take
his trial and that it is indisputable that bail
is not to be withheld as a punishment. In
two other cases which, significantly, are the
'Meerut Conspiracy cases' observations are
to be found regarding the right to bail
which deserve a special mention. In K.N.
Joglekar v. Emperor [AIR 1931 All 504 :
33 Cri LJ 94] it was observed, while
dealing
with
Section
498
which
corresponds to the present Section 439 of
the Code, that it conferred upon the
Sessions Judge or the High Court wide
powers to grant bail which were not
handicapped by the restrictions in the
preceding Section 497 which corresponds
to the present Section 437. It was observed
by the court that there was no hard and fast
rule and no inflexible principle governing
the exercise of the discretion conferred by
Section 498 and that the only principle
which was established was that the
discretion should be exercised judiciously."

18. The observations made by the
Supreme Court in Nimmagadda Prasad v.
Central
Bureau
of
Investigation9
regarding factors which have to be kept in
mind while considering a bail application
are
in
consonance
with
the
earlier
authorities:

"24. While granting bail, the
court has to keep in mind the nature of
accusations, the nature of evidence in
support thereof, the severity of the
punishment which conviction will entail,
the character of the accused, circumstances
which
are
peculiar to
the
accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the
public/State
and
other
similar
considerations. It has also to be kept in
mind that for the purpose of granting bail,
the
legislature
has
used
the
words
"reasonable grounds for believing" instead
of "the evidence" which means the court
dealing with the grant of bail can only
satisfy itself as to whether there is a
genuine case against the accused and that
the prosecution will be able to produce
prima facie evidence in support of the
charge. It is not expected, at this stage, to
have the evidence establishing the guilt of
the accused beyond reasonable doubt."

19. The proposition that grant of bail
cannot be restricted in a rigid formula was
also recognized in Gurcharan Singh and
others v. State (Delhi Admn.) 10 by stating
so:

"29. We may repeat the two
paramount considerations, viz. likelihood
of the accused fleeing from justice and his
tampering with prosecution evidence relate
to ensuring a fair trial of the case in a Court
of Justice. It is essential that due and proper
weight should be bestowed on these two
factors apart from others. There cannot be
an inexorable formula in the matter of
58 INDIAN LAW REPORTS ALLAHABAD SERIES
granting bail. The facts and circumstances
of each case will govern the exercise of
judicial discretion in granting or cancelling
bail." (emphasis supplied)

20. The well settled propositions of
law in regard to grant or refusal of bail
were recapitulated in Lt. Col. Prasad
Shrikant
Purohit
v.
State
of
Maharashtra11:

"29. The law in regard to grant or
refusal of bail is very well settled. The
court granting bail should exercise its
discretion in a judicious manner and not as
a matter of course. Though at the stage of
granting bail a detailed examination of
evidence and elaborate documentation of
the merit of the case need not be
undertaken, there is a need to indicate in
such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged
of having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind. It is also
necessary for the court granting bail to
consider, among other circumstances, the
following factors also before granting bail;
they are:

(a) The nature of accusation and
the severity of punishment in case of
conviction and the nature of supporting
evidence.

(b) Reasonable apprehension of
tampering with the witness or apprehension
of threat to the complainant.

(c) Prima facie satisfaction of the
court in support of the charge.

30. Before concluding, we must
note that though an accused has a right to
make successive applications for grant of
bail, the court entertaining such subsequent
bail applications has a duty to consider the
reasons and grounds on which the earlier
bail applications were rejected. In such
cases, the court also has a duty to record
the fresh grounds which persuade it to take
a view different from the one taken in the
earlier applications.

31. At the stage of granting bail, a
detailed examination of evidence and
elaborate documentation of the merits of
the case has not to be undertaken. The grant
or refusal to grant bail lies within the
discretion of the court. The grant or denial
is regulated, to a large extent, by the facts
and circumstances of each particular case.
But at the same time, right to bail is not to
be denied merely because of the sentiments
of the community against the accused."

21.
The
first
principle
of
bail
jurisprudence, namely grant of bail is the
rule, while denial is an exception was
reiterated and the importance of ensuring a
fair trial to the accused was underscored in
P. Chidambaram v. Directorate of
Enforcement12. P. Chidambaram (supra)
while propounding the law also held that
ultimately each bail application will be
examined
in
its
specific
facts
and
circumstances:

"23.
Thus,
from
cumulative
perusal of the judgments cited on either
side including the one rendered by the
Constitution
Bench
[Gurbaksh
Singh
Sibbiav.State of Punjab, (1980) 2 SCC 565
: 1980 SCC (Cri) 465] of this Court, it
could
be
deduced
that
the
basic
jurisprudence relating to bail remains the
same inasmuch as the grant of bail is the
rule and refusal is the exception so as to
ensure that the accused has the opportunity
10 All. Vikash Kanjad Vs. State of U.P.
59
of securing fair trial. However, while
considering the same the gravity of the
offence is an aspect which is required to be
kept in view by the Court. The gravity for
the said purpose will have to be gathered
from the facts and circumstances arising in
each
case.
Keeping
in
view
the
consequences that would befall on the
society in cases of financial irregularities, it
has been held that even economic offences
would fall under the category of "grave
offence" and in such circumstance while
considering the application for bail in such
matters, the Court will have to deal with the
same, being sensitive to the nature of
allegation made against the accused. One of
the circumstances to consider the gravity of
the offence is also the term of sentence that
is prescribed for the offence the accused is
alleged
to
have
committed.
Such
consideration with regard to the gravity of
offence is a factor which is in addition to
the triple test or the tripod test that would
be normally applied. In that regard what is
also to be kept in perspective is that even if
the allegation is one of grave economic
offence, it is not a rule that bail should be
denied in every case since there is no such
bar created in the relevant enactment
passed by the legislature nor does the bail
jurisprudence provide so. Therefore, the
underlining conclusion is that irrespective
of the nature and gravity of charge, the
precedent of another case alone will not be
the basis for either grant or refusal of bail
though it may have a bearing on principle.
But ultimately the consideration will have
to be on case-to-case basis on the facts
involved therein and securing the presence
of the accused to stand trial."

22.
The
following
principles
governing grant of bail enshrined in Ram
Govind Upadhyay (supra) were extracted
in Brijmani Devi v. Pappu Kumar and
another13:

"4. ... (a) While granting bail the
court has to keep in mind not only the
nature of the accusations, but the severity
of the punishment, if the accusation entails
a conviction and the nature of evidence in
support of the accusations.

(b) Reasonable apprehensions of
the witnesses being tampered with or the
apprehension of there being a threat for the
complainant should also weigh with the
court in the matter of grant of bail.

(c) While it is not expected to
have the entire evidence establishing the
guilt of the accused beyond reasonable
doubt but there ought always to be a prima
facie satisfaction of the court in support of
the charge.

(d)
Frivolity
in
prosecution
should always be considered and it is only
the element of genuineness that shall have
to be considered in the matter of grant of
bail, and in the event of there being some
doubt as to the genuineness of the
prosecution, in the normal course of events,
the accused is entitled to an order of bail."

23.
While
spelling
out
various
considerations for grant of bail the
Supreme Court in Anil Kumar Yadav v.
State (NCT of Delhi) and another13
declined to lay down an exhaustive criteria
for the same by holding:

"17. While granting bail, the
relevant considerations are : (i) nature of
seriousness of the offence; (ii) character of
the evidence and circumstances which are
peculiar to the accused; and (iii) likelihood
of the accused fleeing from justice; (iv) the
60 INDIAN LAW REPORTS ALLAHABAD SERIES
impact that his release may make on the
prosecution witnesses, its impact on the
society; and (v) likelihood of his tampering.
No doubt, this list is not exhaustive. There
are no hard-and-fast rules regarding grant
or refusal of bail, each case has to be
considered on its own merits. The matter
always calls for judicious exercise of
discretion by the Court."

24. The factors which guide the
discretion of the Courts while granting bail
were elaborated by the Supreme Court in
Prasanta
Kumar
Sarkar
v.
Ashis
Chatterjee
and
another15
after
examination of past cases in point. The
relevant parts of the judgement are
extracted below:

"9. We are of the opinion that the
impugned order is clearly unsustainable. It
is trite that this Court does not, normally,
interfere with an order passed by the High
Court granting or rejecting bail to the
accused. However, it is equally incumbent
upon the High Court to exercise its
discretion
judiciously,
cautiously
and
strictly in compliance with the basic
principles laid down in a plethora of
decisions of this Court on the point. It is
well
settled
that,
among
other
circumstances, the factors to be borne in
mind while considering an application for
bail are:

(i) whether there is any prima
facie or reasonable ground to believe that
the accused had committed the offence;

(ii) nature and gravity of the
accusation;

(iii) severity of the punishment in
the event of conviction;

(iv)
danger
of
the
accused
absconding or fleeing, if released on bail;

(v) character, behaviour, means,
position and standing of the accused;

(vi) likelihood of the offence
being repeated;

(vii) reasonable apprehension of
the witnesses being influenced; and

(viii) danger, of course, of justice
being thwarted by grant of bail."

V. Constitutional law and bails:

25. The right of bail is derived from
statute but is never beyond the oversight of
Part III of the Constitution of India. In fact
holdings of Constitutional Courts have
anchored bail jurisprudence in Article 21 of
the Constitution of India.

26. Bail jurisprudence was firmly
berthed in the constitutional regime of
fundamental
rights
in
Gudikanti
Narasimhulu v. Public Prosecutor, High
Court of A.P.16. Casting an enduring
proposition of law in eloquent speech, V.R.
Krishna Iyer, J. held:

"1. Bail or jail?" - at the pretrial or post-conviction stage - belongs to
the blurred area of the criminal justice
system and largely hinges on the hunch of
the
Bench,
otherwise
called
judicial
discretion. The Code is cryptic on this topic
and the Court prefers to be tacit, be the
order custodial or not. And yet, the issue is
one of liberty, justice, public safety and
burden of the public treasury, all of which
insist that a developed jurisprudence of bail
is integral to a socially sensitized judicial
process. As Chamber Judge in this summit
10 All. Vikash Kanjad Vs. State of U.P.
61
court I have to deal with this uncanalised
case-flow, ad hoc response to the docket
being the flickering candle light. So it is
desirable that the subject is disposed of on
basic principle, not improvised brevity
draped as discretion. Personal liberty,
deprived when bail is refused, is too
precious a value of our constitutional
system recognised under Article 21 that the
curial power to negate it is a great trust
exercisable, not casually but judicially,
with lively concern for the cost to the
individual
and
the
community.
To
glamorize
impressionistic
orders
as
discretionary may, on occasions, make a
litigative gamble decisive of a fundamental
right. After all, personal liberty of an
accused
or
convict
is
fundamental,
suffering lawful eclipse only in terms of
"procedure established by law". The last
four words of Article 21 are the life of that
human right."

27. The manner of exercise of judicial
discretion and the tests for grant of bail
were developed with the assistance of
ancient
authorities
and
modern
constitutional propositions of liberty by
Krishna
Iyer,
J.
in
Gudikanti
Narasimhulu (supra). Krishna Iyer J. in
his scholarly exposition on the issue spoke
thus for the Supreme Court:

"5.