If you are stuck in such a situation, here is what to do.

A man, Mr. Alok Sharma, was arrested in May 2023 in connection with a criminal case. The police filed a chargesheet against him and other co-accused by August 2023. Immediately after, his family filed a bail application in the Varanagar High Court. However, despite the passage of over a year and more than twenty court listings, the bail application has not been decided. The primary reason for the delay in the trial’s progress is that the other co-accused in the case are absconding and have not yet been arrested by the authorities. Frustrated by the immense backlog and the indefinite delay in the High Court, Mr. Sharma’s family is contemplating approaching the Supreme Court of India by filing a Special Leave Petition (SLP), hoping for either interim bail or a directive for the High Court to expedite the decision.

Advice in such cases

When a bail application is stuck in a procedural loop in a High Court for an unreasonable amount of time, it can be a significant ground for approaching the Supreme Court. The right to a speedy trial, which includes a timely decision on bail, is a fundamental right under Article 21 of the Constitution of India. An indefinite delay without a decision is a violation of personal liberty.

• Grounds for SLP: The primary ground would be the inordinate delay in the High Court. You can argue that keeping a person incarcerated indefinitely because the trial cannot proceed (due to absconding co-accused) is unjust.
• Potential Relief: The Supreme Court may be reluctant to grant regular bail directly, as it prefers the High Court to decide on the merits. However, it often takes one of two courses of action:
  • Granting interim bail to the accused until the High Court decides the main bail application.
  • Directing the High Court to hear and dispose of the bail application within a strict, time-bound manner, for example, within two to four weeks.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Understanding the legal framework is crucial for navigating such a complex situation. The following laws are pertinent:

• Article 136 of the Constitution of India: This article grants the Supreme Court the discretionary power to grant special leave to appeal from any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any court or tribunal in the territory of India. An SLP against the High Court’s failure to decide would fall under this.
• Article 21 of the Constitution of India: This guarantees the Right to Life and Personal Liberty. The Supreme Court has repeatedly interpreted this to include the right to a fair and speedy trial. Prolonged incarceration without trial is a direct violation of this right.
• Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This section pertains to applications for bail in the High Court or Court of Session. The delay in deciding an application under this section forms the basis of the grievance.

If you are the complainant

As the original complainant who filed the FIR, your role is to ensure that justice is served and the accused does not evade the legal process.

• Oppose the Bail: Your lawyer should actively oppose the bail application in the High Court and, if the matter reaches the Supreme Court, file an intervention to oppose the SLP.
• Highlight Flight Risk: You can argue that since the co-accused are already absconding, there is a high probability that this accused will also abscond if released on bail.
• Focus on the Merits: Emphasize the seriousness of the offense and the strength of the evidence presented in the chargesheet to argue against the grant of bail.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

The victim’s perspective is vital for the court to understand the human impact of the crime. Your participation can significantly influence the outcome.

• Right to be Heard: As a victim, you have the right to be heard at every stage of the proceedings, including bail hearings. You can file an impleadment or intervention application to present your case before the Supreme Court.
• Express Apprehensions: You can inform the court about any threats or fears of witness tampering if the accused is released. The fact that other accused are on the run can strengthen this argument.
• Seek Justice, Not Vengeance: Frame your arguments around the need for a fair trial and ensuring that the accused faces the legal process, rather than being released prematurely due to procedural delays.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

The police’s role shifts after the chargesheet is filed, but they remain a key party. Their actions, or inaction, are central to the case’s progress.

• Prosecution’s Stance: The prosecution, representing the state and police, will almost certainly oppose the bail application. They will rely on the chargesheet and argue that the accused should remain in custody.
• Failure to Arrest Co-accused: The police’s inability to arrest the absconding co-accused is the root cause of the trial delay. The defense will use this failure to argue for bail, stating the accused cannot be punished for the police’s inefficiency. The prosecution may counter that efforts are ongoing.
• Status Reports: The High Court or Supreme Court may ask the police to file a status report on the steps taken to apprehend the other accused. This report can influence the court’s decision.

FAQs people normally have

Can we directly approach the Supreme Court if the High Court is delaying a bail decision?

Yes, but only in exceptional circumstances. While the normal procedure is to wait for the High Court’s order and then appeal if necessary, an inordinate delay that infringes upon the fundamental right to liberty (Article 21) is an exceptional circumstance that justifies filing a Special Leave Petition (SLP) under Article 136 of the Constitution.

What is more likely: the Supreme Court granting interim bail or directing the High Court to decide quickly?

The more common and probable outcome is that the Supreme Court will direct the High Court to decide the pending bail application within a short and fixed timeframe. Granting interim bail directly is less common but possible, especially if the period of incarceration is very long and there is no prospect of the trial starting soon.

How does the fact that co-accused are absconding impact the bail plea?

It has a dual effect. The prosecution will argue it shows a high flight risk. However, the defense will powerfully argue that the accused cannot be held in jail indefinitely simply because the police have failed to do their job of arresting the other accused. This argument often finds favour with courts, as it aligns with the principles of a speedy trial.

What evidence is required?

For filing an SLP in the Supreme Court on grounds of delay, the evidence is primarily documentary and procedural. You will need:

• A certified copy of the FIR.
• A copy of the chargesheet filed by the police.
• A copy of the bail application filed in the High Court.
• Certified copies of the entire order sheet from the High Court, which will clearly show the number of hearings and adjournments without a final decision.
• An affidavit detailing the facts, the timeline of incarceration, and the prejudice being caused to the accused due to the delay.

How long will the investigation take?

In this scenario, the investigation phase is over, as a chargesheet has been filed. The current issue is the delay in the trial and the bail hearing. The legal process in the Supreme Court can be swift. If an SLP is filed with a memo of urgency, it can be listed for a hearing within one to two weeks. The Supreme Court often decides such matters quickly, usually within one or two hearings, by issuing a directive to the High Court.

Advocate Sudhir Rao, Supreme Court of India