Gurcharan Singh v. State of Delhi (1978)

The sections on bail in a non-bailable offence tell a court what it may do; they say almost nothing about how to decide. That gap is where bail questions live. An answer that recites s. 480 and stops has not told the examiner anything about how the discretion is exercised, and a problem question cannot be answered at all without a list of considerations.

Gurcharan Singh is one of the two decisions the course treats as the landmark statements of the factors to be taken into account when hearing a bail application, and it is the older of the pair.

The proposition is carried in the course as a statement of the considerations governing bail in non-bailable offences, rather than through its facts, and nothing further about the facts is settled for this paper.

The decision is authority for the factors to be taken into consideration when granting bail in non-bailable offences. Those factors include the probability of the offence being repeated; the possibility that witnesses will be frightened; the probability that evidence will be tampered with; and the seniority of the accused and his consequent circles of influence, and the effect of that influence on the investigation if he is released.

They are considerations and not conditions: the grant or refusal of bail, and of anticipatory bail, remains a matter for the discretion of the court.

Each factor in the list is a risk to the process, not a view about guilt, and that is the organising idea to carry into an answer. Repetition, intimidation of witnesses, tampering with evidence and the exercise of influence over the investigation are all ways in which release could defeat the trial the bail order is meant to preserve. Nothing in the list asks the court to form a view on whether the accused did it.

Against that runs the principle the course states in the same breath, that bail is the rule and jail the exception: so far as possible the courts must grant bail, and refuse it only in exceptional circumstances. The two are reconciled by treating the factors as the reasons that must be present before the exception is invoked, rather than as boxes to be ticked before the rule applies.

Cite it with State through CBI v. Amarmani Tripathi whenever a question asks how the discretion to grant bail is exercised, what the court must consider, or why bail was refused in a given case. It is equally usable in a question on anticipatory bail, where the discretion is of the same character.

It disposes of the argument that bail follows automatically from the bailable or non-bailable character of the offence. It does not lay down an exhaustive list, and it does not decide anything about default bail, which is a right arising from the failure to complete the investigation in time and not an exercise of this discretion at all.

Note the renumbering: bail in non-bailable offences is now BNSS s. 480 (CrPC s. 437), the special powers of the High Court and the Court of Session are BNSS s. 483 (CrPC s. 439), and anticipatory bail is BNSS s. 482 (CrPC s. 438), which is now excluded for the offences under Bharatiya Nyaya Sanhita s. 65 and s. 70(2).