Source: Supreme Court 

Why in News? 

A bench of Justices Ujjal Bhuyan and J.B. Pardiwala held that an accused has a right to speedy trial and bail cannot be withheld as a punishment. 

• The Supreme Court held this in the case of Javed Gulam Shaikh v. State of Maharashtra and Another. 

What is the Background of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another Case? 

• The Appellant in this case was apprehended by the Mumbai police and was found in possession of counterfeit notes of denomination of Rs. 2000. 
• The First Information Report (FIR) was filed against the appellant for offences under Section 489B, 489C, 120B read with Section 34 of Indian Penal Code, 1860 (IPC). 
• The investigation was ultimately taken over by the National Investigating Agency. 
• This appeal arises from order passed by the High Court of Bombay declining to release the appellant on bail in connection with prosecution under the provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

What were the Court’s Observations? 

• The Court granted bail to the appellant by keeping in mind the following three circumstances: 
  • The appellant is in jail as an undertrial prisoner for past four years. 
  • The trial Court has not been able to frame the charge till this day. 
  • The prosecution intends to examine not less than eighty witnesses. 
• The Court observed that an accused is entitled to speedy trial as enshrined under the Constitution. 
• It is a well settled principle of law that bail is not be withheld as a punishment. 
• The Court held that if the State cannot provide speedy trial (which is a fundamental right under Article 21 of the Constitution of India, 1950), the State should not oppose the plea of bail on the ground that the crime committed is serious.  
• Also, the Court held that the right to speedy trial can be said to be infringed thereby violating Article 21 of the COI.  

What is Bail?  

• The term Bail has not been defined under the Criminal Procedure Code, 1973 (CrPC). 
• Only the terms ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of the Code. 

What are the Different Types of Bail? 

• Regular Bail: The court orders the release of a person who is under arrest, from Police custody after paying the amount as bail money. An accused can apply for regular bail under Section 437 and 439 of CrPC (Section 480 and Section 483 of BNSS) 
• Interim Bail: This is a direct order by the court to provide temporary and short-term bail to the accused until his regular or anticipatory bail application is pending before the court. 
• Anticipatory Bail: A person under apprehension of arrest for a non-bailable offence may apply for anticipatory bail to the High Court or the Court of Session under Section 438 of CrPC (Section 482 of BNSS). 

What is the Maximum Period for which Undertrial Prisoner can be Detained under Section 479 of BNSS? 

• Section 479 (1) of Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) provides where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail: 
  • Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:  
  • Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond:  
  • Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.  
  • Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded. 
• The Clause (2) provides that: Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. 
• The Clause (3) provides that the Superintendent of jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.  

Comparison between Section 479 of BNSS and Section 436A of CrPC 

• The comparison between the two provisions is as follows: 

What are the New Features Introduced by Section 479 of BNSS? 

• The new features introduced by Section 479 of BNSS are as follows: 
  • There is a provision for release of first-time offenders in case they have undergone detention of period extending upto one third of the maximum period of imprisonment specified for such offence. 
  • A new provision added by way of sub section 2 is that an under-trial prisoner shall not be released on bail if an investigation, inquiry or trial in more than offence or in multiple cases is pending against him. 
  • Further, sub section 3 is added which provides that bail can be granted on the report of the Superintendent of jail. 

What are Landmark Cases cited in this Case? 

• Gurbaksh Singh Sibbia v. State of Punjab (1980): 
  • This is the landmark case on Anticipatory bail. 
  • The Court in this case held that the object of the bail is to secure attendance of the accused at the trial. 
  • The proper test to be applied while determining if the bail should be granted or refused is whether it is probable that the party will appear to take his trial. 
• Hussainara Khatoon v. Home Secy. State of Bihar (1980): 
  • The Court in this case declared that the right to speedy trial of offenders facing criminal charges is implicit in the broad sweep and content of Article 21 of the Constitution. 
• Abdul Rehman Antulay v. R.S. Nayak (1992): 
  • It is the obligation of the State or complainant to proceed with the case with reasonable promptitude. 
  • In a given case where the accused demands speedy trial and is not given one may be a relevant factor in his favour. 
• Satender Kumar Antil v. Central Bureau of Investigation (2022): 
  • The Court held that the provision contained in Section 436 A of CrPC will apply to the Special Acts also in the absence of any specific provision. 
  • The court also stated that certain responsibility and accountability is expected form the courts, authorities and police officers to follow the concept presumption of innocence which entails that no purpose is fulfilled by arresting a person until proven guilty.