Guest post by the very bright Hamna Rehan (A student of law at Jamia Millia Islamia, interning at the Chambers of Bharat Chugh)

“Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves…”

– Justice Thurgood Marshal

Presumption of innocence is one of the cardinal principles of our criminal justice system (“CJS”) and recognized as a non-derogable right by various international instruments. Bail is a constitutional recognition of the fundamental principle of presumption of innocence.[1]  

We also hear often that Bail is the rule and jail is the exception but as anyone who’s had a brush with our CJS would know that this rule – more often than not – is disregarded in practice. Bail is often denied merely because the charge is serious (often returning sweeping findings on the merits of the case, at a preliminary stage) and without an examination of the well-established triple test (flight risk, possibility of tampering with prosecution case etc.). Bails are often denied punitively and often as marks of disapprovals of an accused’s conduct (turning the presumption of innocence right on its head).  

We sometimes forget that the only constitutionally permissible justification for denial of bail is when denial is necessary to protect the integrity of the investigation.

Once investigation is over, normally – no purpose is served by keeping the accused in detention. Further, given the centrality of ‘presumption of innocence’ to our system, detention after completion of investigation is disfavored by law.  

In this background, the question that often arises is: “If an accused in a criminal case is not arrested during investigation at all, is he entitled to bail as a matter of right or is there still some discretion involved?”

To answer this, let’s look at the judicial precedent on this point: 

Court on Its Own Motion v. Central Bureau of Investigation[2]

A bare perusal of this decision of the High Court of Delhi makes it clear that those accused who have not been arrested during investigation are entitled to be released on bail. 

The Court premises this on the fact that no purpose would be served to deny bail to a person who has been free for several years and not arrested even during the time of investigation. 

In the words of the High Court: 

“26 (v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.”

The next in line is the decision in the case of: 

Dataram Singh v. State of Uttar Pradesh and Anr.[3],

The facts of the case were fairly straightforward. In 2016, an FIR was lodged under Sections 419, 420, 4016 and 506 of the IPC, alleging that the accused had cheated the Complainant of an amount exceeding 37 lakhs. It was also alleged that the accused issued a cheque of 18 lakhs to return a part of this amount, but stopped its payment, violating Section 138 of the Negotiable Instruments Act, 1881. 

After a period of 7 months, chargesheet was filed, but the accused was not arrested during the investigation. Bail application was moved by the accused, which was vehemently opposed by the opposing counsel on the ground of gravity of the offence. Subsequently, bail was rejected by both the trial court and the Allahabad High Court.

The question finally came up for consideration before the apex court, which made it clear that no purpose would be served in denying bail to the accused who has not been arrested during investigation. The court said: 

“While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.”

The investigating officer did not apprehend that the accused would abscond or hamper the trial in any manner, and there was nothing on record to indicate it either. 

Accordingly, bail was granted by the court and rightly so. 

Next is the case of: 

Siddharth v. State of Uttar Pradesh[4]

In this recent 2021 judgment, the apex court weighed-in on the interpretation of S.170 of Cr.P.C. explicitly holding that if the investigating officer does not feel that the accused would abscond or disobey the summons of the court, she is not required to be arrested and produced in custody alongwith the filing of the police report: 

In the words of the court: 

“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

While observing the above, the Apex Court by its order set aside the impugned order of the High Court, and granted anticipatory bail to the accused, clarifying that it is not mandatory for the investigating officer to arrest the accused and forward the accused to the court alongwith the chargesheet.  

Another recent decision on this point is: 

Satender Kumar Antil v Central Bureau of Investigation and Anr.[5]

The issue of procuring the appearance (of an accused who is never arrested during investigation) also arose recently in the above case. In this case, the apex court laid down certain guidelines on the aspect of granting bail to the accused who is not arrested during investigation. There are certain prerequisites for the guidelines to apply. The accused: 

  1. Should not be arrested during investigation.
  2. Should have co-operated throughout the investigation including appearing before the investigating officer whenever called.

For the purposes of guidance, offences have been categorized as follows:

“Categories/Types of Offences:

A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.

B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.

D) Economic offences not covered by Special Acts.”

In the cases of CATEGORY ‘A’ OFFENCES, the guidelines for securing accused’s appearance are: 

  • Court concerned should issue ordinary summons at the 1st instance/including permitting appearance through a lawyer.
  • If such an accused does not appear despite service of summons, then a Bailable Warrant for physical appearance may be issued.
  • NBW (non-bailable warrant) on failure to appear despite issuance of Bailable Warrant.
  • NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of the accused if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date of hearing.
  • Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.


For Category B and D offences, the bail application has to be decided on merits on the appearance of the accused in Court.


For Category C offences, the same guidelines as Category B & D are applicable with the additional condition of compliance of the provisions of Bail under NDPS, PMLA, Companies Act, UAPA, POSCO etc.

Having said that, in order to benefit from the above, the accused ought to have participated in the investigation at all times. To this end, the court has noted in the order, “The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with”.

The Court also noted that the “trial court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest” 


A review of the above decisions clarify that : it is not mandatory to take the accused into custody at the time of filing the chargesheet and producing him before the Court in custody. Further, if the accused is not arrested during investigation, he is to be normally considered entitled to be released on bail as no purpose would be served by denying bail to a person who has not been arrested during the investigation, the stage when the accused has the best opportunity to adversely affect its outcome. 

By Hamna Rehan

A student of law at Jamia Millia Islamia, interning at the Chambers of Bharat Chugh.

[1] https://www.scconline.com/blog/post/2021/01/19/the-rights-of-every-man-diminish-when-the-right-of-one-man-is-threatened-justice-siddharth-mridul-at-can-foundation-webinar/

[2] 2004 (72) DRJ 629

[3] 2018 (3) SCC 22

[4] 2021 SCC OnLine SC 615

[5] SLP (Crl) No. 5191/2021

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    Sir,I admire your spirit of encouraging talent.It is a rare gesture by a Senior Advocate of your standing.The article by The very Bright Hamna Rehan is timely and covers very important subject of rights.The Explainer is easy to understand and is well researched.
    The maxim,’ Innocent until proven guilty’, has had a good run in the twentieth century. The United Nations incorporated the principle in itsDeclaration of Human Rights in 1948 under article eleven, section one.
    Thanks and Regards,


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