The High Court of Judicature at Allahabad, in a significant judgment delivered by Justice Ajay Bhanot, has ruled that gathering defence evidence and preparing a defence strategy can be a valid ground for granting bail to an accused, particularly at the stage when prosecution evidence has concluded or is nearing completion. The Court laid down a comprehensive set of parameters to guide judicial discretion in such matters while granting bail to the applicant, Vikash Kanjad.
The central legal issue before the court, arising from a batch of second bail applications, was: “whether gathering of defence evidence, preparation of defence strategy and effectively prosecuting the defence case in a trial can be a ground for granting bail?”
Background of the Case
The ruling was delivered in the context of several connected bail applications where the prosecution evidence was either complete or nearing its end. The proceedings under Section 313 of the Code of Criminal Procedure (Cr.P.C.) were set to begin, to be followed by the presentation of defence evidence. The primary ground argued in all these second bail pleas was the necessity for the applicants to be released to conduct an effective defence.
Arguments of the Parties
Arguing for the applicants, a battery of lawyers including Senior Advocates Shri N.I. Jafri and Shri Dharmendra Singhal, and counsels Shri Rajiv Lochan Shukla (prior to his elevation), Shri Sheshadri Trivedi, and Shri Yadavendra Dwivedi, contended that the right to bail is deeply rooted in Article 21 of the Constitution and that an effective defence is a primary ingredient of a fair trial. They argued that with prosecution evidence concluded, there was no possibility of influencing witnesses. It was submitted that police investigations were often incompetent, overlooking exculpatory evidence, and that denying bail at this crucial stage would result in a miscarriage of justice, particularly for accused from socio-economically marginalized sections.
Opposing the plea, Additional Advocate General Shri Ashok Mehta, assisted by AGAs Shri Paritosh Kumar Malviya and Shri Chandan Agrawal, argued on behalf of the State that granting bail for defence purposes would lead to it being granted in all cases, citing Rajesh Ranjan Yadav alias Pappu Yadav v. CBI. He further submitted that the rights of the victim and the prosecution’s perspective must be considered, and that once a trial has commenced, bail should not be granted, referencing the Supreme Court’s observations in X v. State of Rajasthan.
The Court’s Analysis
Justice Ajay Bhanot embarked on a detailed analysis of bail jurisprudence, structuring the judgment in a comprehensive conceptual framework.
1. Constitutional Law and Bail Jurisprudence: The Court reaffirmed that while the right to bail is statutory, it is firmly anchored in Article 21 of the Constitution. It cited the seminal ruling in Gudikanti Narasimhulu v. Public Prosecutor, where Justice V.R. Krishna Iyer held, “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.” The Court reiterated the principle of “bail, not jail” and noted that even restrictive statutory provisions cannot entirely constrain a constitutional court if Article 21 is implicated.
2. Fair Trial and the Right to Defence: The judgment underscored that a fair trial is the “heart of criminal jurisprudence” and an irrevocable guarantee under Article 21. The Court stated, “Fair opportunity for defence in criminal trial is not only embedded under the Criminal Procedure Code but also flows directly from Article 21 of the Constitution of India.” It highlighted the importance of statutory provisions like Section 313 Cr.P.C. (Power to examine the accused) and Section 233 Cr.P.C. (Entering upon defence) in effectuating this right.
The Court observed that systemic imbalances, where the State prosecutes with vast resources against an often-resourceless accused, and “pro prosecution bias” in police investigations, often lead to the neglect of exculpatory evidence, thereby prejudicing the accused.
3. Bail for the Purpose of Defence: The core of the judgment rested on establishing the legitimacy of granting bail to prepare a defence. The Court drew heavily from a 1931 Allahabad High Court judgment in Emperor Vs H.L. Hutchinson, which had established “opportunity to the applicant to prepare his defence” as a valid consideration for bail.
Crucially, the Court noted that this principle was affirmed by a Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, which quoted Hutchinson with approval, stating: “An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity look after his own case.”
The Court also referenced the Supreme Court’s caution in Irfan v. State of U.P. that bail on this ground cannot be granted mechanically and requires proper pleadings and consideration of the specific facts of each case. It distinguished the State’s reliance on Rajesh Ranjan Yadav and X v. State of Rajasthan, holding they were not authorities for an absolute prohibition on granting bail for defence preparation.
Conclusions and Parameters for Granting Bail for Defence
After a thorough review of the legal principles, the Court concluded that “conceptualising a defence strategy, gathering and adducing of defence evidence is a valid ground for grant of bail at the appropriate stage in a trial.”
It laid down the following parameters for courts to consider when deciding such bail applications, especially after prosecution evidence is largely over:
- The heinousness of the offence and its impact on society.
- The criminal history of the accused.
- The conduct of the accused during investigation and trial, including cooperation and any instances of tampering with evidence.
- The nature of the police investigation, particularly if it suffered from a pro-prosecution bias.
- The nature of the proposed defence evidence, to be considered briefly without a detailed appraisal.
- The need of the accused to gather resources for legal advice and evidence.
- Whether the accused has effective ‘pairokars’ (persons pursuing the case) to manage their defence.
- Whether further detention would become punitive in nature.
The Court clarified that “preparation of defence does not automatically guarantee enlargement of an accused on bail” and that the decision remains an exercise of judicial discretion based on the cumulative consideration of these factors.
Decision in the Applicant’s Case
Applying these principles to the case of Vikash Kanjad, the Court allowed his bail application. It noted that the prosecution evidence had concluded, the applicant had cooperated with the investigation, had no criminal history, and was not a flight risk.
The Court found merit in the applicant’s submission that the police investigation was biased, having failed to collect critical CCTV footage that could establish his innocence. It also considered the applicant’s lack of resources to engage a counsel of his choice and gather evidence, noting, “Continued incarceration of the applicant will disable him from crafting an effective defence strategy and prevent him from gathering evidence in his support.”
Consequently, Vikas Kanjad was ordered to be released on bail on furnishing a personal bond and two sureties, with conditions to not tamper with evidence and to appear before the trial court on each date fixed.
