MANU/SC/1375/2011

Equivalent Citation: AIR2012SC 830, 2012(2)B.L.J.407, 2012C riLJ702, 2011(4)C rimes323(SC ), 2012(127)DRJ418, 2012GLH(1)93, 2012-1-
LW(C rl)46, 2012(1)PLJR264, 2011(4)RC R(C riminal)898, 2011(13)SC ALE107, (2012)1SC C 40, 2012(1)UC 151, 2011(6)UJ4077

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2178 of 2011 (Arising out of SLP (Crl.) No. 5650 of 2011)
Decided On: 23.11.2011
Appellants: Sanjay Chandra
Vs.
Respondent: CBI
[Alongwith Criminal Appeal No. 2179 of 2011 (Arising out of SLP (Crl.) No. 5902 of
2011), Criminal Appeal No. 2180 of 2011 (Arising out of SLP (Crl.) No. 6190 of
2011), Criminal Appeal No. 2181 of 2011 (Arising out of SLP (Crl.) No. 6288 of
2011) and Criminal Appeal No. 2182 of 2011 (Arising out of SLP (Crl.) No. 6315 of
2011)]
Hon'ble Judges/Coram:
H.L. Dattu and G.S. Singhvi, JJ.
Counsels:
For Appearing Parties: Harin P. Raval, ASG, Ram Jethmalani, Mukul Rohatgi, Soli J.
Sorabjee, Ashok H. Desai, Sr. Advs., Ritu Bhalla, Manu Sharma, Karan Kalia, Pranav
Diesh, Ananya Ghosh, Sahil Sharma, Vijay Aggarwal, Saurabh Kirpal, Ninad Laud,
Purnima Bhat Kak, Shally Bhasin Maheshwari, Mahesh Agarwal, Siddharth Singla,
Tapesh Kumar Singh, Rajiv Nanda, Anirudh Sharma, Harsh N. Parekh, Anando
Mukherjee, Padmalakshmi Nigam and Arvind Kumar Sharma, Advs.
Case Note:
Criminal - Object of bail - Whether detention of under-trial prisoners in jail
custody amounts to violation of Article 21 of the Constitution of India, 1950
- While allowing or disallowing bail, what criteria is essential to decide the
plea Held, in bail applications, generally, it has been laid down from the
earliest times that the object of bail is to secure the appearance of the
accused person at his trial by reasonable amount of bail. The object of bail
is neither punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it can be required to ensure that an
accused person will stand his trial when called upon. The courts owe more
than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly tried
and duly found guilty. Apart from the question of prevention being the
object of a refusal of bail, one must not lose sight of the fact that any
imprisonment before conviction has a substantial punitive content and it
would be improper for any Court to refuse bail as a mark of disapproval of
former conduct whether the accused has been convicted for it or not or to
refuse bail to an un-convicted person for the purpose of giving him a taste
of imprisonment as a lesson. In the instant case both the Courts had
refused the request for grant of bail on two grounds namely, that offence
alleged against the accused persons is very serious involving deep rooted
planning in which, huge financial loss is caused to the State exchequer and
secondly the possibility of the accused persons tempering with the

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witnesses. The punishment of the offence is punishment for a term which
may extend to seven years. It is, no doubt, true that the nature of the
charge may be relevant, but at the same time, the punishment to which the
party may be liable, if convicted, also bears upon the issue. Therefore, in
determining whether to grant bail, both the seriousness of the charge and
the severity of the punishment should be taken into consideration. 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. The primary purposes of bail in a criminal case are to
relieve the accused of imprisonment, to relieve the State of the burden of
keeping him, pending the trial, and at the same time, to keep the accused
constructively in the custody of the Court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the Court and
be in attendance thereon whenever his presence is required. The two
paramount considerations, while considering petition for grant of bail in
non-bailable offence, apart from the seriousness of the offence, are the
likelihood of the accused fleeing from justice and his tampering with the
prosecution witnesses. Both of them relate to ensure of the fair trial of the
case. Though, this aspect was dealt by the High Court in its impugned
order, but the same was held as not convincing. When the under trial
prisoners are detained in jail custody to an indefinite period, Article 21 of
the Constitution is violated. Every person, detained or arrested, is entitled
to speedy trial. Criminal - Bail plea in 2G Spectrum Scam - Trial proceedings
in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian
Penal Code, 1860 and Section 13(2) read with 13(i)(d) of Prevention of
Corruption Act, 1988 Held, there are seventeen accused persons. Statement
of the witnesses runs to several hundred pages and the documents on
which reliance is placed by the prosecution, is voluminous. The trial may
take considerable time and as it appears the Appellants, who are in jail,
have to remain in jail longer than the period of detention, had they been
convicted. It is not in the interest of justice that accused should be in jail
for an indefinite period. The offence alleged against the Appellants is a
serious one in terms of alleged huge loss to the State exchequer that by
itself should not deprive the Appellants from relief of bail when there is no
serious contention of the Respondent that the accused, if released on bail,
would interfere with the trial or tamper with evidence. No good reason seen
to detain the accused in custody, that too, after the completion of the
investigation and filing of the chargesheet. Hence, Appellants ordered to be
released on bail on their executing a bond alongwith a condition that
Appellants shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts or the case so as to
dissuade him to disclose such facts to the Court or to any other authority
and shall remain present before the Court on the dates fixed for hearing of
the case. If they want to remain absent, then they shall take prior
permission of the court and in case of unavoidable circumstances for
remaining absent, they shall immediately give intimation to the appropriate
court and also to the Superintendent, CBI and request that they may be
permitted to be present through the counsel. They will also not dispute
their identity as the accused in the case and shall surrender their passport,
if any (if not already surrendered), and in case, they are not a holder of the

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same, they shall swear to an affidavit.
Ratio Decidendi:
"Right to Bail is not to be denied merely because of the sentiments of the
community against the accused. The primary purposes of bail in a criminal
case are to relieve the accused of imprisonment, to relieve the State of the
burden of keeping him, pending the trial, and at the same time, to keep the
accused constructively in the custody of the Court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the Court and
be in attendance thereon whenever his presence is required."
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO BAIL/INTERIM
BAIL/ANTICIPATORY BAIL AND AGAINST SUSPENSION OF SENTENCE
JUDGMENT
H.L. Dattu, J.
1. Leave granted in all the Special Leave Petitions.
2. These appeals are directed against the common judgment and Order of the learned
Single Judge of the High Court of Delhi, dated 23rd May 2011 in Bail Application No.
508/2011, Bail Application No. 509/2011 & Crl. M.A. 653/2011, Bail Application No.
510/2011, Bail Application No. 511/2011 and Bail Application No. 512/2011, by
which the learned Single Judge refused to grant bail to the accused-Appellants. These
cases were argued together and submitted for decision as one case.
3 . The offence alleged against each of the accused, as noticed by the Ld. Special
Judge, CBI, New Delhi, who rejected bail applications of the Appellants, vide his
order dated 20.4.2011, is extracted for easy reference:
Sanjay Chandra (A7) in Crl. Appeal No. 2178 of 2011 (arising out of SLP
(Crl.) No. 5650 of 2011):
6. The allegations against accused Sanjay Chandra are that he entered into
criminal conspiracy with accused A. Raja, R.K. Chandolia and other accused
persons during September 2009 to get UAS licence for providing telecom
services to otherwise an ineligible company to get UAS licences. He, as
Managing Director of M/s Unitech Wireless (Tamil Nadu) Limited, was
looking after the business of telecom through 8 group companies of Unitech
Limited. The first-come-first- served procedure of allocation of UAS Licences
and spectrum was manipulated by the accused persons in order to benefit
M/s Unitech Group Companies. The cutoff date of 25.09.2007 was decided by
accused public servants of DoT primarily to allow consideration of Unitech
group applications for UAS licences. The Unitech Group Companies were in
business of realty and even the objects of companies were not changed to
'telecom' and registered as required before applying. The companies were
ineligible to get the licences till the grant of UAS licences. The Unitech Group
was almost last within the applicants considered for allocation of UAS
licences and as per existing policy of first-come-first-served, no licence could
be issued in as many as 10 to 13 circles where sufficient spectrum was not
available. The Unitech companies got benefit of spectrum in as many as 10
circles over the other eligible applicants. Accused Sanjay Chandra, in

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 conspiracy with accused public servants, was aware of the whole design of
the allocation of LOIs and on behalf of the Unitech group companies was
ready with the drafts of Rs. 1658 crores as early as 10th October, 2007.
Vinod Goenka (A5) in Crl. Appeal No. 2179 of 2011 (arising out of SLP(Crl)
No. 5902 of 2011):
5. The allegations against accused Vinod Goenka are that he was one of the
directors of M/s Swan Telecom (P) Limited in addition to accused Shahid
Usman Balwa w.e.f. 01.10.2007 and acquired majority stake on 18.10.2007
in M/s Swan Telecom (P) Limited (STPL) through DB Infrastructure (P)
Limited. Accused Vinod Goenka carried forward the fraudulent applications of
STPL dated 02.03.2007 submitted by previous management despite knowing
the fact that STPL was ineligible company to get UAS licences by virtue of
clause 8 of UASL guidelines 2005. Accused Vinod Goenka was an associate of
accused Shahid Usman Balwa to create false documents including Board
Minutes of M/s Giraffe Consultancy (P) Limited fraudulently showing transfer
of its shares by the companies of Reliance ADA Group during February 2007
itself. Accused/applicant in conspiracy with accused Shahid Usman Balwa
concealed or furnished false information to DoT regarding shareholding
pattern of STPL as on the date of application thereby making STPL an eligible
company to get licence on the date of application, that is, 02.03.2007.
Accused/applicant was an overall beneficiary with accused Shahid Usman
Balwa for getting licence and spectrum in 13 telecom circles.
1 2 . Investigation has also disclosed pursuant to TRAI recommendations
dated 28.08.2007 when M/s Reliance Communications Ltd. got the GSM
spectrum under the Dual Technology policy, accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd.,
and said structure of holding companies, to accused Shahid Balwa and Vinod
Goenka. In this manner they transferred a company which was otherwise
ineligible for grant of UAS license on the date of application, to the said two
accused persons belonging to Dynamix Balwa (DB) group and thereby
facilitated them to cheat the DoT by getting issued UAS Licences despite the
ineligibility on the date of application and till 18.10.2007.
13. Investigation has disclosed that accused Shahid Balwa and Vinod Goenka
joined M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. as
directors on 01.10.2007 and DB group acquired the majority stake in TTPL/
M/s Swan Telecom Pvt. Ltd. (STPL) on 18.10.2007. On 18.10.2007 a fresh
equity of 49.90 lakh shares was allotted to M/s DB Infrastructure Pvt. Ltd.
Therefore on 01.10.2007, and thereafter, accused Shahid Balwa and Vinod
Goenka were incharge of, and were responsible to, the company M/s Swan
Telecom Pvt. Ltd. for the conduct of business. As such on this date, majority
shares of the company were held by D.B. Group.
Gautam Doshi (A9), Surendra Pipara (A10) and Hari Nair (A 11) in Crl.
Appeal Nos. 2180,2182 & 2181 of 2011 (arising out of SLP (Crl) Nos.
6190,6315 & 6288 of 2011):
7 . It is further alleged that in January-February, 2007 accused Gautam
Doshi, Surendra Pipara and Hari Nath in furtherance of their common
intention to cheat the Department of Telecommunications, structured/created

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 net worth of M/s Swan Telecom Pvt. Ltd., out of funds arranged from M/s
Reliance Telecom Ltd. or its associates, for applying to DoT for UAS Licences
in 13 circles, where M/s Reliance Telecom Ltd. had no GSM spectrum, in a
manner that its associations with M/s Reliance Telecom Ltd. may not be
detected, so that DOT could not reject its application on the basis of Clause 8
of the UASL Guidelines dated 14.12.2005.
8 . In pursuance of the said common intention of accused persons, they
structured the stake-holding of M/s Swan Telecom Pvt. Ltd. in a manner that
only 9.9% equity was held by M/s Reliance Telecom Ltd. (RTL) and rest
90.1% was shown as held by M/s Tiger Traders Pvt. Ltd. (later known as M/s
Tiger Trustees Pvt. Ltd. - TTPL), although the entire company was held by the
Reliance ADA Group of companies through the funds raised from M/s
Reliance Telecom Ltd. etc.
9. It was further alleged that M/s Swan Telecom Pvt. Ltd. (STPL) was, at the
time of application dated 02.03.2007, an associate of M/s Reliance ADA
Group / M/s Reliance Communications Limited / M/s Reliance Telecom
Limited, having existing UAS Licences in all telecom circles. Investigations
have also disclosed that M/s Tiger Traders Pvt. Ltd., which held majority
stake (more than 90%) in M/s Swan Telecom Pvt. Ltd. (STPL), was also an
associate company of Reliance ADA Group. Both the companies has not
business history and were activated solely for the purpose of applying for
UAS Licences in 13 telecom circles, where M/s Reliance Telecom Ltd. did not
have GSM spectrum and M/s Reliance Communications Ltd. had already
applied for dual technology spectrum for these circles. Investigation has
disclosed that the day to day affairs of M/s Swan Telecom Pvt. Ltd. and M/s
Tiger Traders Pvt. Ltd. were managed by the said three accused persons
either themselves or through other officers/consultants related to the
Reliance ADA group. Commercial decisions of M/s Swan Telecom Pvt. Ltd.
and M/s Tiger Traders Pvt. Ltd. were also taken by these accused persons of
Reliance ADA group. Material inter-company transactions (bank transactions)
of M/s Reliance Communications / M/s Reliance Telecommunications Ltd. and
M/s Swan Telecom Pvt. Ltd. (STPL) and M/s Tiger Traders Pvt. Ltd. were
carried out by same group of persons as per the instructions of said accused
Gautam Doshi and Hari Nair.
10. Investigations about the holding structure of M/s Tiger Traders Pvt. Ltd.
has revealed that the aforesaid accused persons also structured two other
companies i.e. M/s Zebra Consultancy Private Limited & M/s Parrot
Consultants Private Limited. Till April, 2007, by when M/s Swan Telecom Pvt.
Ltd. applied for telecom licences, 50% shares of M/s Zebra Consultancy
Private Limited & M/s Parrot Consultants Private Limited, were purchased by
M/s Tiger Traders Pvt. Ltd. Similarly, 50% of equity shares of M/s Parrot
Consultants Private Limited & M/s Tiger Traders Private Limited were
purchased by M/s Zebra Consultancy Private Limited. Also, 50% of equity
shares of M/s Zebra Consultancy Private Limited and M/s Tiger Traders
Private Limited were purchased by M/s Parrot Consultants Private Limited.
These 3 companies were, therefore, cross holding each other in an
interlocking structure w.e.f. March 2006 till 4th April, 2007.
1 1 . It is further alleged that accused Gautam Doshi, Surendra Pipara and
Hari Nair instead of withdrawing the fraudulent applications preferred in the

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 name of M/s Swan Telecom (P) Limited, which was not eligible at all,
allowed the transfer of control of that company to the Dynamix Balwa Group
and thus, enabled perpetuating and (sic.) illegality. It is alleged that TRAI in
its recommendations dated 28.08.2007 recommended the use of dual
technology by UAS Licencees. Due to this reason M/s Reliance
Communications Limited, holding company of M/s Reliance Telecom Limited,
became eligible to get GSM spectrum in telecom circles for which STPL had
applied. Consequently, having management control of STPL was of no use for
the applicant/accused persons and M/s Reliance Telecom Limited. Moreover,
the transfer of management of STPL to DB Group and sale of equity held by it
to M/s Delphi Investments (P) Limited, Mauritius, M/s Reliance Telecom
Limited has earned a profit of around Rs. 10 crores which otherwise was not
possible if they had withdrawn the applications. M/s Reliance
Communications Limited also entered into agreement with M/s Swan Telecom
(P) Limited for sharing its telecom infrastructure. It is further alleged that the
three accused persons facilitated the new management of M/s Swan Telecom
(P) Limited to get UAS licences on the basis of applications filed by the
former management. It is further alleged that M/s Swan Telecom (P) Limited
on the date of application, that is, 02.03.2007 was an associate company of
Reliance ADA group, that is, M/s Reliance Communications Limited/ M/s
Reliance Telecom Limited and therefore, ineligible for UAS licences.
1 2 . Investigation has also disclosed pursuant to TRAI recommendations
dated 28.08.2007 when M/s Reliance Communications Ltd. got the GSM
spectrum under the Dual Technology policy, accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd.,
and said structure of holding companies, to accused Shahid Balwa and Vinod
Goenka. In this manner they transferred a company which was otherwise
ineligible for grant of UAS license on the date of application, to the said two
accused persons belonging to Dynamix Balwa (DB) group and thereby
facilitated them to cheat the DoT by getting issued UAS Licences despite the
ineligibility on the date of application and till 18.10.2007.
4 . The Special Judge, CBI, New Delhi, rejected Bail Applications filed by the
Appellants by his order dated 20.04.2011. The Appellants moved the High Court by
filing applications under Section 439 of the Code of Criminal Procedure (in short,
"Code of Criminal Procedure"). The same came to be rejected by the learned Single
Judge by his order dated 23.05.2011. Aggrieved by the same, the Appellants are
before us in these appeals.
5. Shri. Ram Jethmalani, Shri. Mukul Rohatgi, Shri Soli J. Sorabjee and Shri. Ashok
H. Desai, learned senior counsel appeared for the Appellants and Shri. Harin P. Raval,
learned Additional Solicitor General, appears for the Respondent-CBI.
6 . Shri. Ram Jethmalani, learned senior counsel appearing for the Appellant Sanjay
Chandra, would urge that the impugned judgment has not appreciated the basic rule
laid down by this Court that grant of bail is the rule and its denial is the exception.
Shri. Jethmalani submitted that if there is any apprehension of the accused of
absconding from trial or tampering with the witnesses, then it is justified for the
Court to deny bail. The learned senior counsel would submit that the accused has
cooperated with the investigation throughout and that his behavior has been
exemplary. He would further submit that the Appellant was not arrested during the
investigation, as there was no threat from him of tampering with the witnesses. He

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would submit that the personal liberty is at a very high pedestal in our Constitutional
system, and the same cannot be meddled with in a causal manner. He would assail
the impugned judgment stating that the Ld. Judge did not apply his mind, and give
adequate reasons before rejecting bail, as is required by the legal norms set down by
this Court. Shri. Jethmalani further contends that it was only after the Appellants
appeared in the Court in pursuance of summons issued, they were made to apply for
bail, and, thereafter, denied bail and sent to custody. The learned senior counsel
states that the trial Judge does not have the power to send a person, who he has
summoned in pursuance of Section 87 Code of Criminal Procedure to judicial custody.
The only power that the trial Judge had, he would contend, was to ask for a bond as
provided for in Section 88 Code of Criminal Procedure. to ensure his appearance.
Shri. Jethmalani submits that when a person appeared in pursuance of a bond, he
was a free man, and such a free man cannot be committed to prison by making him
to apply for bail and thereafter, denying him the same. Shri. Jethmalani further
submits that if it was the intention of the Legislature to make a person, who appears
in pursuance of summons to apply for bail, it would have been so legislated in
Section 88 Code of Criminal Procedure. The learned senior counsel assailed the
judgment of the Delhi High Court in the 'Court on its own motion v. CBI' 2004 (I) JCC
308, by which the High Court gave directions to Criminal Courts to call upon the
accused who is summoned to appear to apply for bail, and then decide on the merits
of the bail application. He would state that the High Court has ignored even the CBI
Manual before issuing these directions, which provided for bail to be granted to the
accused, except in the event of there being commission of heinous crime. The learned
senior counsel would also argue that it was an error to have a "rolled up charge", as
recognized by the Griffiths' case (R. v. Griffiths and Ors. (1966) 1 Q.B. 589).
Shri.Jethmalani submitted that there is not even a prima facie case against the
accused and would make references to the charge sheet and the statement of several
witnesses. He would emphatically submit that none of the ingredients of the offences
charged with were stated in the charge sheet. He would further contend that even if,
there is a prima facie case, the rule is still bail, and not jail, as per the dicta of this
Court in several cases.
7 . Shri. Mukul Rohatgi, learned senior counsel appearing for the Appellant Vinod
Goenka, while adopting the arguments of Shri. Jethmalani, would further supplement
by arguing that the Ld. Trial Judge erred in making the persons, who appeared in
pursuance of the summons, apply for bail and then denying the same, and ordering
for remand in judicial custody. Shri. Rohatgi would further contend that the gravity of
the offence charged with, is to be determined by the maximum sentence prescribed
by the Statute and not by any other standard or measure. In other words, the learned
senior counsel would submit that the alleged amount involved in the so-called Scam
is not the determining factor of the gravity of the offence, but the maximum
punishment prescribed for the offence. He would state that the only bar for bail
pending trial in Section 437 is for those persons who are charged with offences
punishable with life or death, and there is no such bar for those persons who were
charged with offences with maximum punishment of seven years. Shri. Rohatgi also
cited some case laws.
8. Shri. Ashok H. Desai, learned senior counsel appearing for the Appellants Hari Nair
and Surendra Pipara, adopted the principal arguments of Shri.Jethmalani. In addition,
Shri. Desai would submit that a citizen of this country, who is charged with a criminal
offence, has the right to be enlarged on bail. Unless there is a clear necessity for
deprivation of his liberty, a person should not be remanded to judicial custody. Shri.
Desai would submit that the Court should bear in mind that such custody is not

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punitive in nature, but preventive, and must be opted only when the charges are
serious. Shri. Desai would further submit that the power of the High Court and this
Court is not limited by the operation of Section 437. He would further contend that
Surendra Pipara deserves to be released on bail in view of his serious health
conditions.
9 . Shri. Soli J. Sorabjee, learned senior counsel appearing for Gautam Doshi,
adopted the principal arguments of Shri. Jethmalani. Shri. Sorabjee would assail the
finding of the Learned Judge of the High Court in the impugned judgment that the
mere fact that the accused were not arrested during the investigation was proof of
their influence in the society, and hence, there was a reasonable apprehension that
they would tamper with the evidence if enlarged on bail. Shri. Sorabjee would submit
that if this reasoning is to be accepted, then bail is to be denied in each and every
criminal case that comes before the Court. The learned senior counsel also
highlighted that the accused had no criminal antecedents.
10. Shri. Haren P. Raval, the learned Additional Solicitor General, in his reply, would
submit that the offences that are being charged, are of the nature that the economic
fabric of the country is brought at stake. Further, the learned ASG would state that
the quantum of punishment could not be the only determinative factor for the
magnitude of an offence. He would state that one of the relevant considerations for
the grant of bail is the interest of the society at large as opposed to the personal
liberty of the accused, and that the Court must not lose sight of the former. He would
submit that in the changing circumstances and scenario, it was in the interest of the
society for the Court to decline bail to the Appellants. Shri. Raval would further urge
that consistency is the norm of this Court and that there was no reason or change in
circumstance as to why this Court should take a different view from the order of 20th
June 2011 in Sharad Kumar Etc. v. Central Bureau of Investigation (in SLP (Crl) No.
4584-4585 of 2011) rejecting bail to some of the co-accused in the same case. Shri.
Raval would further state that the investigation in these cases is monitored by this
Court and the trial is proceeding on a day-to-day basis and that there is absolutely no
delay on behalf of the prosecuting agency in completing the trial. Further, he would
submit that the Appellants, having cooperated with the investigation, is no ground for
grant of bail, as they were expected to cooperate with the investigation as provided
by the law. He would further submit that the test to enlarge an accused on bail is
whether there is a reasonable apprehension of tampering with the evidence, and that
there is an apprehension of threat to some of the witnesses. The learned ASG would
further submit that there is more reason now for the accused not to be enlarged on
bail, as they now have the knowledge of the identity of the witnesses, who are the
employees of the accused, and there is an apprehension that the witnesses may be
tampered with. The learned ASG would state that Section 437 of the Code of Criminal
Procedure. uses the word "appears", and, therefore, that the argument of the learned
senior counsel for the Appellants that the power of the trial Judge with regard to a
person summoned under Section 87 is controlled by Section 88 is incorrect. Shri.
Raval also made references to the United Nations Convention on Corruption and the
Report on the Reforms in the Criminal Justice System by Justice Malimath, which, we
do not think, is necessary to go into. The learned ASG also relied on a few decisions
of this Court, and the same will be dealt with in the course of the judgment. On a
query from the Bench, the learned ASG would submit that in his opinion, bail should
be denied in all cases of corruption which pose a threat to the economic fabric of the
country, and that the balance should tilt in favour of the public interest.
11. In his reply, Shri. Jethmalani would submit that as the presumption of innocence

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is the privilege of every accused, there is also a presumption that the Appellants
would not tamper with the witnesses if they are enlarged on bail, especially in the
facts of the case, where the Appellants have cooperated with the investigation. In
recapitulating his submissions, the learned senior counsel contended that there are
two principles for the grant of bail - firstly, if there is no prima facie case, and
secondly, even if there is a prima facie case, if there is no reasonable apprehension
of tampering with the witnesses or evidence or absconding from the trial, the accused
are entitled to grant of bail pending trial. He would submit that since both the
conditions are satisfied in this case, the Appellants should be granted bail.
12. Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is
submitted that this Court has refused to entertain the Special Leave Petition filed by
one of the co-accused (Sharad Kumar v. CBI (supra)) and, therefore, there is no
reason or change in the circumstance to take a different view in the case of the
Appellants who are also charge-sheeted for the same offence. We are not impressed
by this argument. In the aforesaid petition, the Petitioner was before this Court
before framing of charges by the Trial Court. Now the charges are framed and the
trial has commenced. We cannot compare the earlier and the present proceedings and
conclude that there are no changed circumstances and reject these petitions.
13. The Appellants are facing trial in respect of the offences under Sections 420-B,
468, 471 and 109 of Indian Penal Code and Section 13(2) read with 13(i)(d) of
Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge,
CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the
factors, on which they think, are relevant for refusing the Bail applications filed by
the applicants as seriousness of the charge; the nature of the evidence in support of
the charge; the likely sentence to be imposed upon conviction; the possibility of
interference with witnesses; the objection of the prosecuting authorities; possibility
of absconding from justice.
14. In bail applications, generally, it has been laid down from the earliest times that
the object of bail is to secure the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a punishment, unless it can be required to
ensure that an accused person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment begins after conviction, and
that every man is deemed to be innocent until duly tried and duly found guilty. From
the earliest times, it was appreciated that detention in custody pending completion of
trial could be a cause of great hardship. From time to time, necessity demands that
some un-convicted persons should be held in custody pending trial to secure their
attendance at the trial but in such cases, 'necessity' is the operative test. In this
country, it would be quite contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any matter, upon
which, he has not been convicted or that in any circumstances, he should be deprived
of his liberty upon only the belief that he will tamper with the witnesses if left at
liberty, save in the most extraordinary circumstances. Apart from the question of
prevention being the object of a refusal of bail, one must not lose sight of the fact
that any imprisonment before conviction has a substantial punitive content and it
would be improper for any Court to refuse bail as a mark of disapproval of former
conduct whether the accused has been convicted for it or not or to refuse bail to an
un-convicted person for the purpose of giving him a taste of imprisonment as a
lesson.

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1 5 . In the instant case, as we have already noticed that the "pointing finger of
accusation" against the Appellants is 'the seriousness of the charge'. The offences
alleged are economic offences which has resulted in loss to the State exchequer.
Though, they contend that there is possibility of the Appellants tampering witnesses,
they have not placed any material in support of the allegation. In our view,
seriousness of the charge is, no doubt, one of the relevant considerations while
considering bail applications but that is not the only test or the factor: The other
factor that also requires to be taken note of is the punishment that could be imposed
after trial and conviction, both under the Indian Penal Code and Prevention of
Corruption Act. Otherwise, if the former is the only test, we would not be balancing
the Constitutional Rights but rather "recalibration of the scales of justice."
The provisions of Code of Criminal Procedure. confer discretionary jurisdiction on
Criminal Courts to grant bail to accused pending trial or in appeal against
convictions, since the jurisdiction is discretionary, it has to be exercised with great
care and caution by balancing valuable right of liberty of an individual and the
interest of the society in general. In our view, the reasoning adopted by the learned
District Judge, which is affirmed by the High Court, in our opinion, a denial of the
whole basis of our system of law and normal rule of bail system. It transcends
respect for the requirement that a man shall be considered innocent until he is found
guilty. If such power is recognized, then it may lead to chaotic situation and would
jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar
v. Rajesh Ranjan MANU/SC/0045/2005 : (2005) 2 SCC 42, observed that "under the
criminal laws of this country, a person accused of offences which are non-bailable, is
liable to be detained in custody during the pendency of trial unless he is enlarged on
bail in accordance with law. Such detention cannot be questioned as being violative
of Article 21 of the Constitution, since the same is authorized by law. But even
persons accused of non- bailable offences are entitled to bail if the Court concerned
comes to the conclusion that the prosecution has failed to establish a prima facie
case against him and/or if the Court is satisfied by reasons to be recorded that in
spite of the existence of prima facie case, there is need to release such accused on
bail, where fact situations require it to do so."
16. This Court, time and again, has stated that bail is the rule and committal to jail
an exception. It is also observed that refusal of bail is a restriction on the personal
liberty of the individual guaranteed under Article 21 of the Constitution. In the case
of State of Rajasthan v. Balchand MANU/SC/0152/1977 : (1977) 4 SCC 308, this
Court opined:
2. The basic rule may perhaps be tersely put as bail, not jail, except where
there are circumstances suggestive of fleeing from justice or thwarting the
course of justice or creating other troubles in the shape of repeating offences
or intimidating witnesses and the like, by the Petitioner who seeks
enlargement on bail from the Court. We do not intend to be exhaustive but
only illustrative.
3. It is true that the gravity of the offence involved is likely to induce the
Petitioner to avoid the course of justice and must weigh with us when
considering the question of jail. So also the heinousness of the crime. Even
so, the record of the Petitioner in this case is that, while he has been on bail
throughout in the trial court and he was released after the judgment of the
High Court, there is nothing to suggest that he has abused the trust placed in
him by the court; his social circumstances also are not so unfavourable in the

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 sense of his being a desperate character or unsocial element who is likely to
betray the confidence that the court may place in him to turn up to take
justice at the hands of the court. He is stated to be a young man of 27 years
with a family to maintain. The circumstances and the social milieu do not
militate against the Petitioner being granted bail at this stage. At the same
time any possibility of the absconsion or evasion or other abuse can be taken
care of by a direction that the Petitioner will report himself before the police
station at Baren once every fortnight.
17. In the case of Gudikanti Narasimhulu v. Public Prosecutor MANU/SC/0089/1977 :
(1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the
principles of bail thus:
3. What, then, is "judicial discretion" in this bail context In the elegant words
of Benjamin Cardozo:
The Judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to "the primordial necessity
of order in the social life". Wide enough in all conscience is the field
of discretion that remains.
Even so it is useful to notice the tart terms of Lord Camden that the discretion
of a Judge is the law of tyrants: it is always unknown, it is different in
different men; it is casual, and depends upon constitution, temper and
passion. In the best, it is oftentimes caprice; in the worst, it is every vice,
folly and passion to which human nature is liable...
Perhaps, this is an overly simplistic statement and we must remember
the constitutional focus in Articles 21 and 19 before following diffuse
observations and practices in the English system. Even in England
there is a growing awareness that the working of the bail system
requires a second look from the point of view of correct legal criteria
and sound principles, as has been pointed out by Dr Bottomley.
6 . Let us have a glance at the pros and cons and the true principle around
which other relevant factors must revolve. When the case is finally disposed
of and a person is sentenced to incarceration, things stand on a different
footing. We are concerned with the penultimate stage and the principal rule to
guide release on bail should be to secure the presence of the applicant who
seeks to be liberated, to take judgment and serve sentence in the event of the
Court punishing him with imprisonment. In this perspective, relevance of
considerations is regulated by their nexus with the likely absence of the
applicant for fear of a severe sentence, if such be plausible in the case. As
Erle. J. indicated, when the crime charged (of which a conviction has been
sustained) is of the highest magnitude and the punishment of it assigned by
law is of extreme severity, the Court may reasonably presume, some evidence
warranting, that no amount of bail would secure the presence of the convict
at the stage of judgment, should he be enlarged. Lord Campbell, C.J.

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 concurred in this approach in that case and Coleridge J. set down the order of
priorities as follows:
I do not think that an accused party is detained in custody because of his
guilt, but because there are sufficient probable grounds for the charge against
him as to make it proper that he should be tried, and because the detention is
necessary to ensure his appearance at trial. It is a very important element in
considering whether the party, if admitted to bail, would appear to take his
trial; and I think that in coming to a determination on that point three
elements will generally be found the most important: the charge, the nature
of the evidence by which it is supported, and the punishment to which the
party would be liable if convicted.
In the present case, the charge is that of wilful murder; the evidence contains
an admission by the prisoners of the truth of the charge, and the punishment
of the offence is, by law, death.
7. It is thus obvious that the nature of the charge is the vital factor and the
nature of the evidence also is pertinent. The punishment to which the party
may be liable, if convicted or conviction is confirmed, also bears upon the
issue.
8. Another relevant factor is as to whether the course of justice would be
thwarted by him who seeks the benignant jurisdiction of the Court to be freed
for the time being.
9. Thus the legal principles and practice validate the Court considering the
likelihood of the applicant interfering with witnesses for the prosecution or
otherwise polluting the process of justice. It is not only traditional but
rational, in this context, to enquire into the antecedents of a man who is
applying for bail to find whether he has a bad record - particularly a record
which suggests that he is likely to commit serious offences while on bail. In
regard to habituals, it is part of criminological history that a thoughtless bail
order has enabled the bailee to exploit the opportunity to inflict further crimes
on the members of society. Bail discretion, on the basis of evidence about the
criminal record of a Defendant is therefore not an exercise in irrelevance.
13. Viewed from this perspective, we gain a better insight into the rules of the
game. When a person, charged with a grave offence, has been acquitted at a
stage, has the intermediate acquittal pertinence to a bail plea when the appeal
before this Court pends Yes, it has. The panic which might prompt the
accused to jump the gauntlet of justice is less, having enjoyed the confidence
of the Court's verdict once. Concurrent holdings of guilt have the opposite
effect. Again, the ground for denial of provisional release becomes weaker
when the fact stares us in the face that a fair finding - if that be so - of
innocence has been recorded by one Court. It may not be conclusive, for the
judgment of acquittal may be ex facie wrong, the likelihood of desperate
reprisal, if enlarged, may be a deterrent and his own safety may be more in
prison than in the vengeful village where feuds have provoked the violent
offence. It depends. Antecedents of the man and socio- geographical
circumstances have a bearing only from this angle. Police exaggerations of
prospective misconduct of the accused, if enlarged, must be soberly sized up
lest danger of excesses and injustice creep subtly into the discretionary curial

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 technique. Bad record and police prediction of criminal prospects to invalidate
the bail plea are admissible in principle but shall not stampede the Court into
a complacent refusal.
18. In Gurcharan Singh v. State (Delhi Admn.) MANU/SC/0420/1978 : (1978) 1 SCC
118, this Court took the view:
22. In other non-bailable cases the Court will exercise its judicial discretion in
favour of granting bail subject to sub- section (3) of Section 437 Code of
Criminal Procedure if it deems necessary to act under it. Unless exceptional
circumstances are brought to the notice of the Court which may defeat proper
investigation and a fair trial, the Court will not decline to grant bail to a
person who is not accused of an offence punishable with death or
imprisonment for life. It is also clear that when an accused is brought before
the Court of a Magistrate with the allegation against him of an offence
punishable with death or imprisonment for life, he has ordinarily no option in
the matter but to refuse bail subject, however, to the first proviso to Section
437(1) Code of Criminal Procedure and in a case where the Magistrate
entertains a reasonable belief on the materials that the accused has not been
guilty of such an offence. This will, however, be an extraordinary occasion
since there will be some materials at the stage of initial arrest, for the
accusation or for strong suspicion of commission by the person of such an
offence.
24. Section 439(1) Code of Criminal Procedure of the new Code, on the other
hand, confers special powers on the High Court or the Court of Session in
respect of bail. Unlike under Section 437(1) there is no ban imposed under
Section 439(1), Code of Criminal Procedure against granting of bail by the
High Court or the Court of Session to persons accused of an offence
punishable with death or imprisonment for life. It is, however, legitimate to
suppose that the High Court or the Court of Session will be approached by an
accused only after he has failed before the Magistrate and after the
investigation has progressed throwing light on the evidence and
circumstances implicating the accused. Even so, the High Court or the Court
of Session will have to exercise its judicial discretion in considering the
question of granting of bail under Section 439(1) Code of Criminal Procedure
of the new Code. The overriding considerations in granting bail to which we
adverted to earlier and which are common both in the case of Section 437(1)
and Section 439(1) Code of Criminal Procedure of the new Code are the
nature and gravity of the circumstances in which the offence is committed;
the position and the status of the accused with reference to the victim and the
witnesses; the likelihood, of the accused fleeing from justice; of repeating the
offence; of jeopardising his own life being faced with a grim prospect of
possible conviction in the case; of tampering with witnesses; the history of
the case as well as of its investigation and other relevant grounds which, in
view of so many valuable factors, cannot be exhaustively set out.
19. In Babu Singh v. State of U.P. MANU/SC/0059/1978 : (1978) 1 SCC 579, this
Court opined:
8. 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 on the public treasury, all of which insist that a developed

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 jurisprudence of bail is integral to a socially sensitized judicial process. As
Chamber Judge in this summit Court I had 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 glamorise 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.
...
16. Thus the legal principle and practice validate the Court considering the
likelihood of the applicant interfering with witnesses for the prosecution or
otherwise polluting the process of justice. It is not only traditional but
rational, in this context, to enquire into the antecedents of a man who is
applying for bail to find whether he has a bad record-particularly a record
which suggests that he is likely to commit serious offences while on bail. In
regard to habituals, it is part of criminological history that a thoughtless bail
order has enabled the bailee to exploit the opportunity to inflict further crimes
on the members of society. Bail discretion, on the basis of evidence about the
criminal record of a Defendant, is therefore not an exercise in irrelevance.
17. The significance and sweep of Article 21 make the deprivation of liberty a
matter of grave concern and permissible only when the law authorising it is
reasonable, even-handed and geared to the goals of community good and
State necessity spelt out in Article 19. Indeed, the considerations I have set
out as criteria are germane to the constitutional proposition I have deduced.
Reasonableness postulates intelligent care and predicates that deprivation of
freedom by refusal of bail is not for punitive purpose but for the bi-focal
interests of justice-to the individual involved and society affected.
18. We must weigh the contrary factors to answer the test of reasonableness,
subject to the need for securing the presence of the bail applicant. It makes
sense to assume that a man on bail has a better chance to prepare or present
his case than one remanded in custody. and if public justice is to be
promoted, mechanical detention should be demoted. In the United States,
which has a constitutional perspective close to ours, the function of bail is
limited, "community roots" of the applicant are stressed and, after the Vera
Foundation's Manhattan Bail Project, monetary suretyship is losing ground.
The considerable public expense in keeping in custody where no danger of
disappearance or disturbance can arise, is not a negligible consideration.
Equally important is the deplorable condition, verging on the inhuman, of our
sub-jails, that the unrewarding cruelty and expensive custody of avoidable
incarceration makes refusal of bail unreasonable and a policy favouring
release justly sensible.
20. Viewed from this perspective, we gain a better insight into the rules of the
game. When a person, charged with a grave offence, has been acquitted at a

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 stage, has the intermediate acquittal pertinence to a bail plea when the appeal
before this Court pends Yes, it has. The panic which might prompt the
accused to jump the gauntlet of justice is less, having enjoyed the confidence
of the Court's verdict once. Concurrent holdings of guilt have the opposite
effect. Again, the ground for denial of provisional release becomes weaker
when the fact stares us in the face that a fair finding - if that be so - of
innocence has been recorded by one Court. It may be conclusive, for the
judgment of acquittal may be ex facie wrong, the likelihood of desperate
reprisal, it enlarged, may be a deterrent and his own safety may be more in
prison than in the vengeful village where feuds have provoked the violent
offence. It depends. Antecedents of the man and socio-geographical
circumstances have a bearing only from this angle. Police exaggerations of
prospective misconduct of the accused, if enlarged, must be soberly sized up
lest danger of excesses and injustice creep subtly into the discretionary curial
technique. Bad record and police prediction of criminal prospects to invalidate
the bail plea are admissible in principle but shall not stampede the Court into
a complacent refusal.
20. In Moti Ram v. State of M.P. MANU/SC/0132/1978 : (1978) 4 SCC 47, this Court,
while discussing pre-trial detention, held:
14. The consequences of pre-trial detention are grave. Defendants presumed
innocent are subjected to the psychological and physical deprivations of jail
life, usually under more onerous conditions than are imposed on convicted
Defendants. The jailed Defendant loses his job if he has one and is prevented
from contributing to the preparation of his defence. Equally important, the
burden of his detention frequently falls heavily on the innocent members of
his family.
21. The concept and philosophy of bail was discussed by this Court in Vaman Narain
Ghiya v. State of Rajasthan MANU/SC/8394/2008 : (2009) 2 SCC 281, thus:
6. "Bail" remains an undefined term in Code of Criminal Procedure. Nowhere
else has the term been statutorily defined. Conceptually, it continues to be
understood as a right for assertion of freedom against the State imposing
restraints. Since the UN Declaration of Human Rights of 1948, to which India
is a signatory, the concept of bail has found a place within the scope of
human rights. The dictionary meaning of the expression "bail" denotes a
security for appearance of a prisoner for his release. Etymologically, the word
is derived from an old French verb "bailer" which means to "give" or "to
deliver", although another view is that its derivation is from the Latin term
"baiulare", meaning "to bear a burden". Bail is a conditional liberty. Stroud's
Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states:
...when a man is taken or arrested for felony, suspicion of felony,
indicted of felony, or any such case, so that he is restrained of his
liberty. And, being by law bailable, offereth surety to those which
have authority to bail him, which sureties are bound for him to the
King's use in a certain sums of money, or body for body, that he shall
appear before the justices of goal delivery at the next sessions, etc.
Then upon the bonds of these sureties, as is aforesaid, he is bailed-
that is to say, set at liberty until the day appointed for his
appearance.

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 Bail may thus be regarded as a mechanism whereby the State devolutes upon
the community the function of securing the presence of the prisoners, and at
the same time involves participation of the community in administration of
justice.
7. Personal liberty is fundamental and can be circumscribed only by some
process sanctioned by law. Liberty of a citizen is undoubtedly important but
this is to balance with the security of the community. A balance is required to
be maintained between the personal liberty of the accused and the
investigational right of the police. It must result in minimum interference with
the personal liberty of the accused and the right of the police to investigate
the case. It has to dovetail two conflicting demands, namely, on the one hand
the requirements of the society for being shielded from the hazards of being
exposed to the misadventures of a person alleged to have committed a crime;
and on the other, the fundamental canon of criminal jurisprudence viz. the
presumption of innocence of an accused till he is found guilty. Liberty exists
in proportion to wholesome restraint, the more restraint on others to keep off
from us, the more liberty we have. (See A.K. Gopalan v. State of Madras)
8. The law of bail, like any other branch of law, has its own philosophy, and
occupies an important place in the administration of justice and the concept of
bail emerges from the conflict between the police power to restrict liberty of a
man who is alleged to have committed a crime, and presumption of innocence
in favour of the alleged criminal. An accused is not detained in custody with
the object of punishing him on the assumption of his guilt.
2 2 . More recently, in the case of Siddharam Satlingappa Mhetre v. State of
Maharashtra MANU/SC/1021/2010 : (2011) 1 SCC 694, this Court observed that "
(j)ust as liberty is precious to an individual, so is the society's interest in
maintenance of peace, law and order. Both are equally important." This Court further
observed:
116. Personal liberty is a very precious fundamental right and it should be
curtailed only when it becomes imperative according to the peculiar facts and
circumstances of the case.
This Court has taken the view that when there is a delay in the trial, bail should be
granted to the accused (See Babba v. State of Maharashtra (2005) 11 SCC 569, Vivek
Kumar v. State of U.P. MANU/SC/0890/2000 : (2000) 9 SCC 443, Mahesh Kumar
Bhawsinghka v. State of Delhi MANU/SC/2641/2000 : (2000) 9 SCC 383).
23. The principles, which the Court must consider while granting or declining bail,
have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi
MANU/SC/0193/2001 : (2001) 4 SCC 280, thus:
The jurisdiction to grant bail has to be exercised on the basis of well-settled
principles having regard to the circumstances of each case and not in an
arbitrary manner. While granting the bail, the court has to keep in mind the
nature of accusations, the nature of the evidence in support thereof, the
severity of the punishment which conviction will entail, the character,
behaviour, means and standing 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 or State and similar other

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 considerations. It has also to be kept in mind that for the purposes of
granting the 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 it (sic 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.
24. In State of U.P. v. Amarmani Tripathi MANU/SC/0677/2005 : (2005) 8 SCC 21,
this Court held as under:
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 and
Gurcharan Singh v. State (Delhi Admn.)). 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: (SCC pp.
535-36, para 11)
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. (See Ram Govind Upadhyay v. Sudarshan Singh and
Puran v. Rambilas.)
22. While a detailed examination of the evidence is to be avoided

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 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.
25. Coming back to the facts of the present case, both the Courts have refused the
request for grant of bail on two grounds: The primary ground is that offence alleged
against the accused persons is very serious involving deep rooted planning in which,
huge financial loss is caused to the State exchequer; the secondary ground is that the
possibility of the accused persons tempering with the witnesses. In the present case,
the charge is that of cheating and dishonestly inducing delivery of property, forgery
for the purpose of cheating using as genuine a forged document. The punishment of
the offence is punishment for a term which may extend to seven years. It is, no
doubt, true that the nature of the charge may be relevant, but at the same time, the
punishment to which the party may be liable, if convicted, also bears upon the issue.
Therefore, in determining whether to grant bail, both the seriousness of the charge
and the severity of the punishment should be taken into consideration. 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. The primary purposes of bail in a
criminal case are to relieve the accused of imprisonment, to relieve the State of the
burden of keeping him, pending the trial, and at the same time, to keep the accused
constructively in the custody of the Court, whether before or after conviction, to
assure that he will submit to the jurisdiction of the Court and be in attendance
thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. v.
S tate AIR 1978 SC 179 observed that two paramount considerations, while
considering petition for grant of bail in non-bailable offence, apart from the
seriousness of the offence, are the likelihood of the accused fleeing from justice and
his tampering with the prosecution witnesses. Both of them relate to ensure of the
fair trial of the case. Though, this aspect is dealt by the High Court in its impugned
order, in our view, the same is not convincing.
26. When the undertrial prisoners are detained in jail custody to an indefinite period,
Article 21 of the Constitution is violated. Every person, detained or arrested, is
entitled to speedy trial, the question is : whether the same is possible in the present
case. There are seventeen accused persons. Statement of the witnesses runs to
several hundred pages and the documents on which reliance is placed by the
prosecution, is voluminous. The trial may take considerable time and it looks to us
that the Appellants, who are in jail, have to remain in jail longer than the period of
detention, had they been convicted. It is not in the interest of justice that accused
should be in jail for an indefinite period. No doubt, the offence alleged against the
Appellants is a serious one in terms of alleged huge loss to the State exchequer, that,
by itself, should not deter us from enlarging the Appellants on bail when there is no
serious contention of the Respondent that the accused, if released on bail, would
interfere with the trial or tamper with evidence. We do not see any good reason to
detain the accused in custody, that too, after the completion of the investigation and
filing of the charge-sheet. This Court, in the case of State of Kerala v. Raneef
MANU/SC/0001/2011 : (2011) 1 SCC 784, has stated:
15. In deciding bail applications an important factor which should certainly
be taken into consideration by the court is the delay in concluding the trial.
Often this takes several years, and if the accused is denied bail but is
ultimately acquitted, who will restore so many years of his life spent in

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 custody Is Article 21 of the Constitution, which is the most basic of all the
fundamental rights in our Constitution, not violated in such a case of course
this is not the only factor, but it is certainly one of the important factors in
deciding whether to grant bail. In the present case the Respondent has
already spent 66 days in custody (as stated in Para 2 of his counter-
affidavit), and we see no reason why he should be denied bail. A doctor
incarcerated for a long period may end up like Dr. Manette in Charles
Dicken's novel A Tale of Two Cities, who forgot his profession and even his
name in the Bastille.
27. In 'Bihar Fodder Scam', this Court, taking into consideration the seriousness of
the charges alleged and the maximum sentence of imprisonment that could be
imposed including the fact that the Appellants were in jail for a period more than six
months as on the date of passing of the order, was of the view that the further
detention of the Appellants as pre-trial prisoners would not serve any purpose.
2 8 . We are conscious of the fact that the accused are charged with economic
offences of huge magnitude. We are also conscious of the fact that the offences
alleged, if proved, may jeopardize the economy of the country. At the same time, we
cannot lose sight of the fact that the investigating agency has already completed
investigation and the charge sheet is already filed before the Special Judge, CBI, New
Delhi. Therefore, their presence in the custody may not be necessary for further
investigation. We are of the view that the Appellants are entitled to the grant of bail
pending trial on stringent conditions in order to ally the apprehension expressed by
CBI.
29. In the view we have taken, it may not be necessary to refer and discuss other
issues canvassed by the Learned Counsel for the parties and the case laws relied on
in support of their respective contentions. We clarify that we have not expressed any
opinion regarding the other legal issues canvassed by Learned Counsel for the
parties.
30. In the result, we order that the Appellants be released on bail on their executing
a bond with two solvent sureties, each in a sum of '5 lakhs to the satisfaction of the
Special Judge, CBI, New Delhi on the following conditions:
a. The Appellants shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts or the case so as to
dissuade him to disclose such facts to the Court or to any other authority.
b. They shall remain present before the Court on the dates fixed for hearing
of the case. If they want to remain absent, then they shall take prior
permission of the court and in case of unavoidable circumstances for
remaining absent, they shall immediately give intimation to the appropriate
court and also to the Superintendent, CBI and request that they may be
permitted to be present through the counsel.
c. They will not dispute their identity as the accused in the case.
d. They shall surrender their passport, if any (if not already surrendered),
and in case, they are not a holder of the same, they shall swear to an
affidavit. If they have already surrendered before the Ld. Special Judge, CBI,
that fact should also be supported by an affidavit.

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 e. We reserve liberty to the CBI to make an appropriate application for
modification/recalling the order passed by us, if for any reason, the
Appellants violate any of the conditions imposed by this Court.
31. The appeals are disposed of accordingly.

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