S. 437(6) CrPC Doesn't Grant Indefeasible Right to Bail

Source: Allahabad High Court  

Why in News?

Justice Ashutosh Srivastava of the Allahabad High Court, in Mohd. Ashfaque Ansari Alias Ashfaque Ansari v. State of U.P. (2026), refused to grant bail to a man accused of harbouring a Pakistani ISI agent and passing sensitive Indian Armed Forces data to Pakistan, holding that Section 437(6) CrPC (Section 480 of BNSS) does not confer an indefeasible right to bail even upon prolonged incarceration. 

What was the Background of  Mohd. Ashfaque Ansari Alias Ashfaque Ansari v. State of U.P. (2026) Case? 

• A case was initially registered against the applicant, Mohd. Ashfaque Ansari, under Sections 3 and 9 of the Official Secrets Act and Section 14 of the Foreigners Act; after investigation, he was charge-sheeted under Sections 120-B, 212, 467, 468, and 471 IPC. 
• It was alleged that Ansari worked hand-in-glove with a co-accused, Mohd. Ezaz alias Mohd. Kalam, a Pakistani national and suspected ISI agent. 
• According to the State, the Pakistani agent resided at Ansari's house for nearly 20 months, during which he learned Hindi, photography, and video mixing. 
• Ansari allegedly provided the agent with logistics and assisted him in transmitting confidential information concerning the Indian Army and Indian Air Force via emails to ISI officers in Pakistan and an operative in Bangladesh. 
• Highly confidential and prohibited sensitive military documents were subsequently recovered from the agent. 
• The State argued that releasing the applicant on bail would not be in the national interest, and prayed that the bail application be rejected. 
• The applicant's counsel submitted that Ansari had been incarcerated since November 27, 2015; though the chargesheet was filed in 2021 and charges framed in August 2024, the trial remained at the evidence stage with none of the 31 prosecution witnesses examined. 
• Reliance was placed on Section 437(6) CrPC and the Supreme Court's ruling in Sahil Manoj Machari v. State of Maharashtra on the right to a speedy trial under Article 21, contending that prolonged incarceration without progress in trial entitled the applicant to mandatory bail. 

What were the Court's Observations? 

• On the nature of Section 437(6) CrPC: The Court held that while the provision was enacted to prevent unnecessary and prolonged detention of undertrials, it carries a strict legislative caveat and cannot be interpreted to grant an indefeasible right to bail, since the right is controlled by the latter part of the provision empowering a Magistrate to refuse bail by assigning reasons. 
• On the discretionary character of the right: The Court underscored that the provision is discretionary rather than mandatory, and that the right to a speedy trial is not placed on so high a pedestal as to become absolute. 
• On legislative balance: The Court observed that the legislature incorporated the provision to recognise the accused's right to a speedy trial and protect individual liberty, while simultaneously empowering the Magistrate to refuse bail for reasons recorded in a given set of circumstances. 
• On national security considerations: Taking into account that the applicant was charged with assisting an ISI operative in undermining national data, the Court held that personal liberty cannot be placed above the security of the nation. 
• On relief granted: Notwithstanding its refusal of bail, the Court took serious note of the applicant's incarceration for over a decade and directed the trial court to fix short dates and conclude the trial expeditiously within six months. 

What is Section 480 of BNSS? 

Section 480 of BNSS - When bail may be taken in case of non-bailable offence: 

(Earlier this was covered under Section 437 of CrPC).   

Sub-section (1) — General Power to Grant Bail:  

• Any person accused/suspected of a non-bailable offence, arrested without warrant or brought before a court (other than High Court or Sessions Court), may be released on bail.  
• Bail shall NOT be granted if:   
• There are reasonable grounds to believe the person is guilty of an offence punishable with death or life imprisonment (clause i), or  
• The offence is cognizable AND the person was previously convicted of an offence punishable with death, life, or 7+ years, or convicted on two or more occasions of a cognizable offence punishable with 3–7 years (clause ii).  
• Exceptions (Provisos):   
• A child, woman, or sick/infirm person falling under clause (i) or (ii) may be granted bail.  
• Bail may be granted under clause (ii) for any other special reason if the court deems it just and proper.  
• Requirement of identification by witnesses or police custody beyond 15 days alone is not sufficient ground to refuse bail, provided the accused gives an undertaking to comply with court directions.  
• For offences punishable with death, life, or 7+ years — bail cannot be granted without giving the Public Prosecutor an opportunity of hearing.  

Sub-section (2) — Bail Pending Further Inquiry:  

• If at any stage of investigation, inquiry, or trial, the court/officer finds no reasonable grounds to believe the accused committed a non-bailable offence but finds sufficient grounds for further inquiry, the accused shall be released on bail or on a bond, subject to Section 492 BNSS.  

Sub-section (3) — Mandatory Conditions for Serious Offences:  

• When bail is granted under sub-section (1) for offences punishable with 7 years or more, or offences under Chapter VI, VII, or XVII of BNS, or abetment/conspiracy/attempt of such offences — the Court shall impose the following conditions:   
• (a) Attendance in accordance with bond conditions.  
• (b) No commission of a similar offence.  
• (c) No inducement, threat, or promise to any person acquainted with facts of the case; no tampering with evidence.  
• Additionally, the court may impose any other conditions in the interest of justice.  
• Key Note: These conditions are not applicable to offences punishable with less than 7 years.   

Sub-section (4) — Recording of Reasons:  

• Any officer or court releasing a person on bail under sub-sections (1) or (2) must record reasons or special reasons in writing.  

Sub-section (5) — Power to Cancel Bail:  

• A court that released a person on bail under sub-sections (1) or (2) may, if necessary, direct the re-arrest and custody of such person.  

Sub-section (6) — Bail on Delay in Trial:  

• In a Magistrate-triable case, if the trial of a non-bailable offence accused is not concluded within 60 days from the first date fixed for taking evidence, and the accused has been in custody throughout, he shall be released on bail, unless the Magistrate records reasons in writing to the contrary.  

Sub-section (7) — Bail After Trial, Before Judgment:  

• If, after conclusion of trial and before delivery of judgment, the court believes there are reasonable grounds that the accused is not guilty, it shall release the accused on a bond to appear and hear the