Preparing Defence Strategy & Gathering Evidence Valid Grounds For Bail : Allahabad High Court Clarifies 'Stage' & 'Parameters'

A bench of Justice Ajay Bhanot, while deciding a batch of 18 (second) bail applications, ruled that the right to prepare and conduct an effective defence is an essential component of a fair trial and therefore flows directly from Article 21 of the Constitution of India.

"In fact grant of bail for defence (in appropriate circumstances and at the apposite stage of trial) is the most critical safeguard evolved by the Courts to secure equal and fair justice to all accused persons especially those belonging to disadvantaged classes", the Court held.

The judge clarified that while such bail cannot be claimed as a matter of course, it can be considered once the prosecution evidence is concluded or nearing closure, particularly when proceedings under Section 313 CrPC (Section 351 BNSS) are about to commence and the accused needs liberty to prepare and present defence evidence.

For context, the Court was dealing with a common question across the 18 connected bail pleas (later allowed by HC), all filed at a stage when prosecution evidence had either concluded or was close to conclusion. The central issue framed by the bench 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? 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?"

Contentions Raised

Counsels appearing for the applicants argued that the right to fair trial includes the right to an effective defence, which becomes meaningless if the accused remains incarcerated during the defence stage.

Counsel submitted that as prosecution evidence was already over, there was no likelihood of tampering with witnesses and denial of bail at this point would cripple the defence, particularly due the fact that the accused belong to socio-economically marginalized backgrounds.

On the other hand, the Additional Advocate General for the State contended that bail cannot be granted merely for the preparation of defence, as that would create an unworkable precedent and could lead to misuse. The State's counsel also argued that grant of bail must remain confined to established legal grounds and that the victim's rights and the integrity of the trial must also be preserved.

Court's Observations

In its 63-page verdict, the Court noted that while grant of bail is an exercise of judicial discretion, it must be guided by settled parameters subject to the gravity of the offence, nature of evidence and potential interference with the trial.

Justice Bhanot further observed that the right of bail, though sourced in statute, is "never beyond" the oversight of Part III of the Constitution and that bail jurisprudence has been constitutionally anchored in Article 21, which protects both liberty and fair trial.

Emphasizing the need for parity and fairness between prosecution and defence, the Court observed thus:

"The criminal justice system is pivoted on a prosecution narrative which is built with the vast resources of the State and wide investigatory powers of the police. The State pumps huge resources and employs professional investigators to investigate a criminal offence. The State thereafter prosecutes the criminal case against the accused also bears the expenses of the same. On the other side of the scale is the accused person who is completely lacking in such resources and investigation skills to gather evidence".

The Court further observed that on many occasions, criminal investigations suffer from a pro-prosecution bias and in such circumstances, grant of bail for defence becomes a significant safeguard enabling the accused to collect and produce exculpatory evidence and effectively prosecute their defence.

"The ability of an accused to conceptualise a defence strategy, gather evidence and prosecute his defence in the trial efficaciously may also be compromised by continued incarceration after prosecution evidence has concluded", the Court noted.

Stressing that constitutional courts must prevent the denial of justice to the accused, the Court said that the right to prepare and conduct a defence is intrinsic to the concept of fair trial and hence forms part of the right to life and personal liberty under Article 21.

"Grant of bail to an accused for conducting defence after considering all relevant factors in the circumstances of a case and at the appropriate stage of trial for the aforesaid purposes would realize the legislative intent of Section 313 Cr.P.C. (Section 351 of the BNSS) and Section 233 Cr.P.C. (Section 256 of the BNSS) and shall secure one of the most indispensable ingredients of a fair trial which is founded in the constitutional law discourse on Article 21 of the Constitution of India".

To arrive at this conclusion, the Court extensively referred to several rulings of the Supreme Court including its verdict in the cases of Gurbaksh Singh Sibbia v. State of Punjab, Satender Kumar Antil, Nikesh Tarachand Shah, Gudikanti Narasimhulu, Babu vs State of UP, Moti Ram v. State of M.P, etc.

Against this backdrop, the Court laid down the following parameters for grant of bail to prepare and conduct defence:

• After conclusion or near conclusion of prosecution evidence, when proceedings under Section 313 CrPC ≡ Section 351 BNSS are due, followed by the defence stage under Section 233 CrPC ≡ Section 256 BNSS, the stage becomes apposite to consider bail for collecting and preparing defence evidence.
• While granting bail after the conclusion of prosecution evidence or when prosecution evidence nears closure, some of the factors which were prominent at the stage of pre-trial bail will recede in the background, while other considerations will become more prominent. For example the possibility of influencing prosecution witnesses will not be relevant after the prosecution evidence has concluded.
• The Court must consider heinousness of the offence, criminal history, conduct of the accused, cooperation in investigation and absence of tampering or influence on witnesses.
• The Court may examine whether police investigation suffered from pro-prosecution bias leading to failure in collecting exculpatory evidence.
• Evidence may be considered briefly, though detailed appraisal must be avoided.
• The Court should also consider whether the accused has resources, effective pairokars and access to quality legal advice to prepare defence. If continued detention becomes punitive, bail should be considered.
• Courts may impose strict conditions to prevent abuse of bail liberty and to ensure the accused's presence at trial.
• Preparation of defence does not automatically guarantee bail, nor can it be granted mechanically. It must be considered in composite light of all relevant parameters.
• Grant of bail for defence remains an exercise of judicial discretion, guided by cumulative consideration of the above factors. These parameters are illustrative, not exhaustive and may be adapted or evolved depending on facts of each case.

Before concluding, the Court reiterated that a mechanical approach cannot be adopted while granting bail for defence. Justice Bhanot emphasized that proper pleadings, relevant materials and grounds for grant of bail to conduct defence have to be brought in the record of the bail application.

The single judge regretted the absence of such pleadings in most cases as he categorically noted that the case for grant of bail on the ground of defence has to be clearly set out in the bail application.

It cautioned that while refusal of bail in appropriate cases for conducting defence would cause denial of justice, granting bail without proper pleadings and consideration of relevant materials would mean disservice to law.

Thus, the bench ordered that a copy of this judgment and top court's judgment in Irfan vs State of UP be supplied to the President and Secretary of the High Court Bar Association and Advocates' Association, Allahabad, for examining how the Bar can be trained to comply with these directions and serve justice to the litigants before this Court.

The Court also reminded both associations that it is their responsibility to create constant learning programmes to upgrade legal knowledge and professional proficiency of their members.

Appearances

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.

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