Can't Get Bail Because You Were Not Arrested During Probe: SC Explains Law

New Delhi: The Supreme Court on Friday ruled that an accused cannot be released on bail as a matter of right even though he was not arrested during the investigation.

The top court interpreted Section 88 of the Criminal Procedure Code (CrPC) to elucidate whether it is obligatory for a court to release the accused by accepting the bond under Section 88 on the ground that he was not arrested during investigation.

Section 88 holds that when any person for whose appearance or arrest the judge is empowered to issue a summons or warrant, is present in such court, such judge “may” require such person to execute a bond, with or without sureties, for his appearance in the court concerned.

A bench of Justices AK Sikri and Ashok Bhushan maintained that the word “may” did not cast a duty upon the judicial officer to release the accused on bail after accepting the bond but the term “may” in fact give a discretion to the judge to decide for or against the release.

“Discretion given under Section 88 to the court does not confer any right on a person, who is present in the court, rather it is the power given to the court to facilitate his appearance, which clearly indicates that use of word ‘may’ is discretionary and it is for the court to exercise its discretion when situation so demands,” held the bench.

It rejected an argument by senior lawyer Mukul Rohatgi that it was imperative for a judge to release on bail an accused, who has not been arrested during investigation when he appears before court. He contended that although Section 88 uses the word ‘may’ but the word ‘may’ has to be read as shall causing an obligation on the court to release on bond, those, who appeared on their own volition in the court.

But the bench did not accept Rohatgi’s submissions.

“Section 88 of the CrPC does not confer any right on any person, who is present in a court. Discretionary power given to the court is for the purpose and object of ensuring appearance of such person in that court or to any other court into which the case may be transferred for trial,” it said.

The Court order came as it upheld orders by a CBI judge and Allahabad High Court in dismissing the bail application of Pankaj Jain, partner in a construction firm who is a co-accused in a corruption case involving former Chief Engineer of Noida, Yadav Singh.

The bench said that the subordinate courts have rightly exercised their discretion in rejecting Jain’s bail, against whom non-bailable warrant of arrest as well as proceeding to declare him as a proclaimed offender had been initiated for not appearing in the trial court. It noted that Jain could not be considered as a “free agent” who had discretion to appear before the court.

As Jain’s lawyer Rohatgi pointed out that his client is a person with 60 per cent disability, the bench said that he should revive his application before the trial court and that the Supreme Court was not inclined to release him on bail at this stage.