Piercing Through the Dynamics of Bail Jurisprudence –
An Analysis into Landmark Judgments of the Supreme Court

(Authored by Nanda Surendran, Advocate, High Court of Kerala)

E-mail : nandasurendran27@gmail.com       Mob.: 8138816382

Introduction

“Bail is rule, jail is an exception” – a principle that resonates through the system of criminal law since time and again. The principle was notably recognized and weaved into the fabrics of criminal jurisprudence in India by Justice V. R. Krishnayyar in State of Rajasthan v. Balchand₁. The incorporation of this basic rule into the legal framework of bail laws in India has thereafter underscored the relevance of equating bail or the conditional release of an accused during the pendency of trial, with concepts such as personal liberty and justice, which are engrained as the basic features of our Constitution. While the Code of Criminal Procedure lays down only the technicalities and procedural aspects with regard to grant of bail, the jurisprudence behind bail has indubitably been developed by means of precedents, and in fact the best example of such a precedent gaining the status of a law that governs the field is that of bail is rule and jail is an exception. It lays down the groundwork upon which the discretion of the court entertaining the bail application ought to be exercised and the contours of the same. The Apex Court has in several landmark decisions interpreted and expanded the principle to safeguard the fundamental rights of personal liberty and speedy trial vested in an accused and various judicial forums across the country have resonated bail jurisprudence along the lines of the same.

In the last year, the Supreme Court of India dealt with several cases pertaining to bail, the pronouncements therein having resulted in attaining the status of a ruling precedent in bail matters and have also paved way as a guiding force for courts while determining bail applications. These judgments, have reiterated the existing landmark decisions in support of the principle “bail is rule, jail is an exception” and have further stepped up a level to expand its application in situations where the court is satisfied that the fundamental rights of life and liberty of an accused is in detriment due to the prolonged trial or the impossibility to even commence the trial in certain scenarios. Coincidentally or not, three out of such judgements revolve around similar set of facts, being the accused incarcerated under the Prevention of Corruption Act, 1988 (“PCA”) and the consequent arrest by the Enforcement Directorate in connection with Section 3 of the Prevention of Money Laundering Act, 2002
(“PMLA”) and these judgments have henceforth been considered as latest additions to the set of landmark judgements rendered by the Apex Court in the realm of bail, especially due to the impact that they shall have on considering applications of persons alleged to have committed offences punishable under such statues, which contain restrictions on grant of bail.

Case Study I - Manish Sisodia v. Directorate of Enforcement

The first case is that of Manish Sisodia v. Directorate of Enforcement₂ rendered by Hon’ble Justice B.R.Gavai. Here, Justice Gavai highlights the importance of securing the personal liberty of an undertrial accused in the event where the court and investigating authority is of the evident view that trial will not commence any time soon. The facts of the case pertain to the arrest and detention of the accused, who was incarcerated in connection with the allegations of corruption in the Delhi Excise Policy. The accused was booked both by the CBI under the PCA and the ED under the PMLA and while his bail application in the case registered by the ED was rejected by the Delhi High Court, the accused had already undergone 17 months of incarceration post his arrest. The courts below had applied the triple test, i.e, to see whether the accused were a flight risk, they would not influence the witness, and they would not tamper with evidence, along with the conditions stipulated under Section 45 of the PMLA, is a restrictive clause on granting of bail. Upon the bail application being rejected by the Delhi High Court, the Accused preferred the instant appeal the Supreme Court.

The Supreme Court took into consideration the fact that the trial of both the scheduled offence (being the offence under the PCA) and the offence under PMLA will take a considerable period of time, since they involved around 493 witnesses as well as huge documentations. Acknowledging the remote possibility of the trial taking place in the near future, Justice Gavai was of the sound reasoning that the continuous detention of the accused will only render to be deprivation of his right to speedy trial and right to liberty, which are “sacrosanct rights”. The Court relied upon the landmark judgment ofGudikanti Narasimhulu & Ors v. Public Prosecutor₃, whereby it was held that the objective to keep a person in judicial custodypending trial or disposal of an appeal is to secure the attendance of the prisoner at trial, and not as a form of punishment. Going by the said rationale, it was reiterated by Justice Gavai that incarceration before being pronounced guilty of an offence should not be a means of inflicting punishment on an accused without subjecting them to trial. Furthermore, the Court relied on Javed Gulam Nabi Shaikh v. State of Maharashtra and Anr.₄,wherein several landmark judgments were referred to and finally held that if the State or any prosecuting agency including the court has no wherewithal to provide or protect the fundamental right of an Accused to have a speedy trial as enshrined under Article 21, then the State or such prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious and that Article 21 of the Constitution applies irrespective of the nature of the crime. In light of the above guiding factors, the Supreme Court re-applied the triple test and opined that the Accused satisfies the conditions therein, and therefore granted bail. This judgment indeed echoes with the principle that denial of bail in such circumstances where trial is not likely to proceed, is nothing short of violation of Article 21 of the Constitution.

Case Study II – Senthil Balaji v. Deputy Director of Enforcement Directorate

While the first case reiterated a general well-settled, yet often in-practice breached upon principle, the subsequent case adjudged by the Supreme Court considered the importance of grant of bail to an undertrial prisoner, specifically in the light of rigid clauses on grant of bail contained in substantive statutes, for instances such as in offences under PMLA, UAPA, NDPS and the like.

In Senthil Balaji v. Deputy Director of Enforcement Directorate₅, the Supreme Court, while granting bail to the accused who was an ex-transport minister of Tamil Nadu, facing incarceration on allegation of collecting large amounts by promising job opportunities to several persons in various positions in the transport department, upheld that if the Judges are of the satisfaction that there is no possibility of a trial concluding within a reasonable time, then there exists no bar to exercise the powers of a constitutional court to grant bail, on grounds that there is a violation of Part III of the Constitution, notwithstanding any statutory provisions. Here also, the Accused was booked for commission of offence under the PCA, which formed the scheduled offence under the PMLA, thereby leading to registration of crime by the ED as well, under the latter statute. Even though the Court was of the opinion as to the existence of a prima facie case against the Accused, that was considered as no bar to grant bail, given that the trial of the scheduled offence had not even reached the stage of framing of charges. It was observed by Hon’ble Justice Abhay S. Oka that unless and until the trial in the scheduled offence reaches a conclusion, the trial under the PMLA also would not even commence and since the existence of a scheduled offence is a sine qua non for alleging proceeds of crime constituting an offence under the PMLA, any further detention of the accused by the enforcement directorate in such remote possibility of commencement of trial in the near future was violative of fundamental rights of the Accused. Furthermore, Justice Oka delved into the impact of rigid clauses in statutes such that of PMLA, UAPA, etc which discourages courts from granting bail and went on to interpret that such rigid clauses necessarily contemplate a speedy trial of the impugned offences, as otherwise, such stringent rules become a tool to punish the accused even before a conviction upon trial.

The Court, after placing reliance on Manish Sisodia₆ and Union of India v. K.A.Najeeb₇, held that the requirement of expeditious disposal of cases and trial must be read into such statutes providing for higher threshold in grant of bail, as inordinate delay in the conclusion of trial and higher threshold for grant of bail cannot go together. Once again relying upon the principle of bail is rule, and jail is exception, the Court interpreted Section 45 (1)(ii) of the PMLA, to render that such stringency in granting of bail does not confer an unfettered power on the hands of State or the investigating agency to detain an accused for an unreasonable and uncertain period of time. Even though what is reasonable time depends upon a number of factors including the nature of offence, the minimum and maximum sentence prescribed for the offence, or a specification of outer limit in the relevant law for completion of the trial, and so on, in each of such scenarios, the constitutional courts can exercise their discretionary jurisdiction and issue prerogative writs in the event of violation of Part III of the Constitution.

Case Study III -- Arvind Kejriwal v. Central Bureau of Investigation

The third case Arvind Kejriwal v. Central Bureau of Investigation₈, is not merely an authority on bail jurisprudence, but also provides a much-required insight into the question of legality and necessity of arrest. Arising from the same allegations of corruption in the Delhi Excise Policy which implicated Manish Sisodia, the ex- chief minister of NCT of Delhi, Arvind Kejriwal was also booked by the Enforcement Directorate by exercising their purported powers under Section 19 of the PMLA. An interesting aspect in this case was that the Appellant was initially not named as an accused in the original case registered against various persons in 2022 under Sections 120B read with Section 477A of IPC and Section 7 of the PCA. It was only in March, 2024, the ED arrested the Appellant and soon thereafter the CBI also moved an application in June, 2024 before the Special Judge (PC Act) under Section 41A of the Code of Criminal Procedure, seeking to interrogate the Appellant, which was thereupon allowed. Having completed interrogation and examination, the CBI filed an application before the Special Court seeking permission to arrest the Appellant, which was allowed and in the meantime the bail granted to the Appellant in the ED matter was stayed by the High Court, thereby causing no hindrance to the arrest by CBI.

Before delving into the question of grant of bail to the Appellant, Justice Surya Kant in his judgment framed the legal issue whether the act of the CBI in filing an application before the Special Court and consequently arresting the accused was in compliance with the mandates of Section 41A and 41(1)(b) of the Code of Criminal Procedure. The High Court of Delhi had upheld the legality of the arrest for the reason and the accused was denied bail considering the complexity of the facts and materials on record, which in the opinion of the High Court called for a more comprehensive determination of his role in the alleged conspiracy. Moreover, the High Court also denied to exercise its concurrent jurisdiction under Section 439 Cr.P.C., in light of the chargesheet being submitted by the CBI constituting a change of circumstance and thereby directed the accused to approach the Court of the Sessions Judge.

The Supreme Court undertook an interesting interpretation of Section 41A in light of the facts of the case. The question that arose was whether the CBI was justified in filing an application before the Special Court under the pretext of Section 41A to interrogate the accused, and further, whether the subsequent arrest of the accused was legal, when Section 41A(3) mandates that no arrest be made if the person complies with the notice issued under that provision. Justice Surya Kant held that the intention of Section 41A is only to ensure an individual’s appearance through the issuance of a notice, and that it does not outline any express procedure to be undertaken where the individual in question is already incarcerated. In his opinion, since the Court acts as the guardian of an undertrial during judicial custody, a possible means to ensure proper compliance with Section 41A would be by obtaining the Court’s permission. Further, with regard to Section 41A(3), it was observed that the provision has a vital takeaway. While compliance with the notice generally shields an individual from arrest, the police may still proceed with the arrest if they conclude that it is essential and provide duly recorded reasons for doing so. This means, it is not a case of absolute restrain on arrest. In the instant case as well, following the interrogation, the CBI made an application to the Trial Court seeking permission to arrest the Appellant on grounds that the Appellant had allegedly given evasive responses during questioning and that custodial interrogation was necessary. Hence, it was held that Section 41A(1), when read with Section 41A(3) Code of Criminal Procedure, does not impose an absolute prohibition on the arrest and the legality of the same was upheld.

The Court also dealt with the concept of “why arrest” or the “necessity of arrest”, which was the moot point in the case of Arnesh Kumar v. State of Bihar₉, wherein it was held that the police officer before arrest must put a question to himself, as to why arrest and whether it is really required and it is only after an answer is found to the said question, the police officer must exercise the power to arrest. The rationale to cloth an arrest with such legality is because arrest causes significant damage to an individual in the form of humiliation and curtailment on freedom. An individual who is subjected to arrest is scarred for eternity – with his reputation torn and his emotional wellbeing affected. Hence, arrest, is a tool at the hand of the police which has the power to cause grave consequences on an individual, thus necessitating the need for creating checks and balances in the exercise of power to arrest.

While Justice Kant upheld the legality of the arrest on the above grounds, he was also of the opinion that continued incarceration for an extended period pending trial would infringe upon established legal principles and the Appellant’s personal liberty, traceable to Article 21 of the Constitution and therefore granted bail. However, Justice Ujjal Bhuyan authored a separate judgment to hold that the arrest was tainted with illegality and that the Appellant’s incarceration was uncalled for, thereby holding them as reasons not to deny bail to the Appellant. One of the key observations made by Justice Bhuyan was regarding the timing of the arrest. The arrest of the accused by the CBI was made only after he was granted regular bail in the connected ED case, that too with a delay of 22 months from the date of registration of crime, raising serious concerns as to whether the arrest met the threshold of necessity. Justice Bhuyan observed that such delay inherently suggests a lack of urgency or compelling grounds, thereby failing to satisfy the standard of necessity that must guide any arrest under the constitutional and statutory scheme. Further, he scrutinized the reasoning offered by the CBI for the arrest and held that it can in no event be justified to arrest merely because an accused does not respond to questions in the manner the investigating agency expects. He firmly rooted this observation in the constitutional protection under Article 20(3), which enshrines the right against self incrimination. In light of these findings, Justice Bhuyan concluded that the grounds cited for the arrest were untenable, and continuing the Appellant’s detention would amount to a travesty of justice.

Furthermore, Justice Bhuyan also drew the necessary distinction between the “need to arrest” and “power to arrest”. It was reiterated that merely because an investigating agency has the power to arrest, it does not necessarily mean that it should arrest such a person. This was so inferred in light of Joginder Kumar v. State of U.P.₁₀, which examined the interplay of investigation and arrest, whereby the Supreme Court held that no arrest can be made because it is lawful for the police officer to do so. It was held that the mere existence of the power to arrest is distinct from the justification for its exercise. Arrest and subsequent detention in police custody can inflict serious and irreparable damage to an individual’s reputation and self-worth and thus, no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It is essential—both for the protection of a citizen’s constitutional rights and in the interest of responsible policing—that no arrest is carried out without the officer having formed a reasonable satisfaction, following some investigation, regarding the genuineness and bona fides of the complaint, as well as the accused’s complicity in the offence. Ultimately, also relying on Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)₁₁, Justice Bhuyan emphasized on the duty of investigating officers to conduct the investigation in such manner which will draw a just balance between a citizen’s right under Articles 19 and 21 and the expansive power of the police to make investigation.

While deliberating on the issue of bail, Justice Bhuyan also examined the legal significance of a change in circumstance, particularly in light of the filing of a charge-sheet, and addressed whether the High Court had erred in not exercising its concurrent jurisdiction. Justice Bhuyan affirmed that the filing of a charge-sheet does indeed constitute a change in circumstance, as it equips the court with substantial material to form a prima facie assessment on several key factors, such as the gravity of the offence, the extent of the applicant’s involvement, the background and vulnerability of witnesses, the likely duration of the trial based on the number of witnesses, and the broader societal impact of granting or denying bail. However, he raised his reservations on adopting a straitjacket formula wherein the filing of a charge-sheet becomes the sole or determinative criterion in bail considerations and opined that each case, may be evaluated on its individual merits. It was further underscored that an undertrial should ordinarily first approach the Trial Court for bail as such an approach not only affords the accused an opportunity for initial relief but also preserves the High Court’s role as a forum for review and correction. It was also emphasized that since bail is intrinsically linked to the right to personal liberty, such applications should be decided expeditiously and substantively, rather than being hindered by procedural formalities or unnecessary jurisdictional deference.

The Relevance of Precedents

An analysis into the three judgments render that the guiding factor behind all the decisions and the ultimate discretion to grant bail, were based on the necessity to protect the fundamental right of liberty, life and speedy trial of an Accused. Time and again, the Courts have upheld the importance of respecting the sacrosanct rights, while adjudicating upon the application for bail of an undertrial. The judgment of Gudikanti Narasimhulu₁₂ is often considered as the most celebrated precedent, wherein the legal luminary Justice Krishna Iyer had laid down the law that in no event can withholding of bail be resorted to as a means of punishment and that the objective behind bail is to only secure the attendance of the prisoner at trial. Justice Krishna Iyer also pointed out at how the trial courts and high courts act in breach of the principle “bail is rule, jail is an exception”, while playing it safe in matters of grant of bail, which leads to floodgate of applications seeking bail, even in open and shut cases.

Yet another early decision of the Apex Court is that of Gurbhaksh Singh Sibbia v. State of Punjab₁₃, which although dealt with the contours of granting anticipatory bail, also laid down certain basic principles with respect to bail under Section 438 of the Cr.P.C. as well. Citing the reliance of much older case laws from the early 20th century courts of the country the Supreme Court paved way into the contemporary bail jurisprudence that is followed till date. Reliance  was placed on Nagendra Nath Chakrabarthi v. King Emperor₁₄, wherein the Calcutta High Court held that the object of detention is to secure the attendance of the accused at the trial and that the proper test to be applied in determining whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. In K. N. Joglekar v. Emperor₁₅ , which is also referred to as the Meerut Conspiracy Case, the High Court of Allahabad held that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion by Courts in granting bail, except for the rule that the discretion should be exercised judiciously. Similarly, in Emperor v. H. L. Hutchinson₁₆, it was observed by the High Court of Allahabad, that the only legitimate purposes to be served by keeping a person undertrial in detention are to prevent repetition of the offence with which he is charged, where there is apparently danger of such repetition, and to secure his attendance at the trial. Noting the above precedents, the Supreme Court in Gurbhaksh₁₇ noted that the provisions of the Cr.P.C. rightly give the inference that bail is rule and jail is an exception, and that a presumably innocent person must have his freedom to enable him to establish his innocence. While Gudikanti Narasimhulu₁₈ and Gurbhaksh Singh Sibbia₁₉, still hold the field as the primary sources for bail jurisprudence, several recent case laws have also been of utmost relevance when it comes to the question of grant of bail. For instance, with respect to grant of bail for offences under statutes which contain restrictive/conditional clauses on bail, the case of Union of India v. K A Najeeb₂₀ is a frequently relied upon precedent. In this case, the Appellant was charged under the rigorous provisions of UAPA, which contains statutory embargo on bail as per Section 43D(5). The Appellant had already undergone 5 and half years of incarceration and it was argued that the protracted incarceration violates the Accused’s right to speedy trial and access to justice. Placing reliance on the much-celebrated Shaheen Welfare Association v. Union of India₂₁, and Babba alias Shankar Raghuman Rohida v. State of Maharashtra₂₂ it was urged that in such situations where there is an evident violation to the Accused’s fundamental right, the Constitutional Courts could exercise their powers to grant bail, regardless of limitations specified in the special statutes. The Supreme Court, confirming the reliance on the above precedents, upheld that undertrials cannot indefinitely be detained pending trial. The presence of statutory restrictions, in the opinion of the court, did not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution and the court vouched for harmony between the restrictions under a Statue and the powers exercisable under Constitutional Jurisdiction. The ratio laid down in K.A. Najeeb₂₃ was in its entirety made applicable in the cases of Manish Sisodia₂₄ and Senthil Balaji.₂₅

Another recent judgment of the Supreme Court which highlighted the harmony between enforcement of criminal law and order and protection of fundamental rights of the accused was that of Arnab Ranjan Goswami v. Union of India₂₆. The Supreme Court has held that the courts should be alive to both ends of the spectrum: the need to ensure proper enforcement of criminal law on the one hand, and the need to ensure that the law does not become a ruse for targeted harassment on the other hand.

These judgments, along with several others which lay down more or less the same principles of law, lead us to an important question: where do courts draw the line when it comes to denial of bail and protecting the right of personal liberty and speedy trial of an accused.

Conclusion : Denial of bail v. protection of Fundamental rights

In conclusion, the trajectory of bail jurisprudence in India reflects a conscious and evolving effort to balance the denial of bail with the constitutional mandate of protecting the fundamental rights of the accused. Bail is no longer seen merely as a procedural aspect of criminal law but as a vital safeguard of personal liberty, deeply intertwined with the right to a fair trial under Article 21 of the Constitution, which is a “sacrosanct right”. From Gudikanti Narasimhulu₂₇ to Manish Sisodia₂₈, the courts have progressively underscored that bail is a constitutional imperative and not a matter of judicial indulgence.

The Supreme Court’s reiteration that “bail is the rule and jail is the exception” is not a mere slogan but a legal principle grounded in the presumption of innocence, the need for fair and expeditious trials, and the protection of human dignity. The decisions discussed as above have become significant precedents, prompting courts across the country to scrutinize the necessity of arrest and the feasibility of timely trials before depriving a person of his personal liberty. For instance, the High Court of Kerala in several occasions have quoted the ratios in the above decisions and diligently exercised its discretion in grant of bail, even in case of offences which come under statutes containing restrictions on bail. One such example is the case of Rahul Rai v. State of Kerala₂₉, wherein, the accused was booked under Section 22(c) & 8(c) r/w 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for having been found in possession of Psilocybin contained magic mushroom along with other substances. While the moot point was whether ‘Magic Mushroom’ constituted a scheduled narcotic/psychotropic substance under the Act, which was answered in the negative, the Court also relied upon Manish Sisodia₃₀ to hold that once a case is made out for grant of bail, the court cannot decline to grant bail, and if so denied, then that shall be a violation to right guaranteed under Article 21 of the constitution.

As the Supreme Court highlighted in Arnab Goswami₃₁, the role of the judiciary is to harmonize the interests of justice with the fundamental rights of individuals. The consistent judicial emphasis on liberty, fairness, and dignity calls for a vigilant and principled approach from all courts. A justice system that upholds these values not only protects the rights of the individual but also strengthens public faith in the rule of law. Therefore, in a constitutional democracy, the denial of bail must always be the exception, justified by compelling reasons, and never at the cost of personal liberty without due cause.

Foot Notes

1. 1977 KLT OnLine 1158 (SC) = AIR 1977 SC 2447.

2.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053.

3.  1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429.

4.  2024 KLT OnLine 1744 (SC) = (2024) 9 SCC 813

5.  2024 KLT OnLine 2363 (SC) = AIR 2024 SC 4760.

6.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053.

7.  2021 (4) KLT SN 49 (C.No.32) SC = 2021 (1) KLT OnLine 1013 (SC) = AIR 2021 SC 712.

8. 2024 KLT OnLine 2325 (SC) = (2024) 9 SCR 683.

9. 2014 (3) KLT 143 (SC) = (2014) 8 SCC 273.

10. 1994 (1) KLT 919 (SC) = (1994) 4 SCC 260.

11.2010 (2) KLT OnLine 1103 (SC) = (2010) 6 SCC 1.

12. 1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429.

13.  1980 KLT OnLine 1004 (SC) = AIR 1980 SC 1632.

14.  AIR 1924 Cal 476.

15.  AIR 1931 All 504.

16.  AIR 1931 All 356.

17. 1980 KLT OnLine 1004 (SC) = AIR 1980 SC 1632.

18. 1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429..

19. 1980 KLT OnLine 1004 (SC) = AIR 1980 SC 1632.

20. 2021 (4) KLT SN 49 (C.No.32) SC = 2021 (1) KLT OnLine 1013 (SC) = AIR 2021 SC 712.

21. 1996 (1) KLT OnLine 987 (SC) = AIR 1996 SC 2957.

22. 2005 (2) KLT OnLine 1119 (SC) = (2005) 11 SCC 569.

23. 2021 (4) KLT SN 49 (C.No.32) SC = 2021 (1) KLT OnLine 1013 (SC) = AIR 2021 SC 712.

24. 2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053.

25. 2024 KLT OnLine 2363 (SC) = AIR 2024 SC 4760.

26. 2020 (6) KLT OnLine 1108 (SC) = (2021) 2 SCC 427.

27. 1978 KLT OnLine 1009 (SC) = AIR 1978 SC 429.

28.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053

29.  MANU/KE/0067/2025.

30.  2024 KLT OnLine 2018 (SC) = AIR 2024 SC 4053 .

31.  2020 (6) KLT OnLine 1108 (SC) = (2021) 2 SCC 427.

Humility, His Hallmark

(By K. Ramakumar, Senior Advocate, High Court of Kerala)
E-mail : ramakumarassociates@gmail.com             Ph.0484-2376428
 

The Bible says,“The more you attain heights, the more humble you should be.”

 We had one Judge among us who practised this noble and wise precept. It was Shri Justice P. G. Ajithkumar. Right from day one of his entry into judicial service as a humble magistrate till the day he demitted a high office, he maintained the excellent quality of humility. The members of the Bar had always been speaking of his gentle, courteous and mild manners. He had proved to the practitioners that respect emanates not from shouting at them,slighting them or lording over them in trivial matters,but from treating them in an affable manner as partners in the noble cause of administering justice.

He was one Judge who never forgot that lawyers represent some of the most unfortunate category of citizens who are drawn into litigation often endless in nature. The Britishers had provided even statutorily that proceedings of the courts are open to the public, which, fortunately, we are still following. Often the hapless litigant is present in court with his heart pounding when his case is taken up, full of anxiety, uncertainty and even despair. Shri Justice Ajithkumar knew this very well, which is why the hallmark of his character humility often helped lawyers to alleviate the sufferings of the poor litigant to some extent. He was not media crazy, but the remarkable trait of his character gained wide circulation among practitioners, litigants and the members of the public.

Shri Justice Ajithkumar demonstrated that being humble is a great virtue, and when combined with a firm, sturdy and principled judicial attitude, it goes a long way in moulding a great Judge. In his own humble manner, he performed his job very well. And even in areas in the field of law, generally considered unfamiliar to him, he had rendered remarkable judgments. What the judiciary needs is such Judges with humility, commitment, and firmness.

A Judge after demitting office, it is common knowledge, will not get the same attention that he received while in office. Practical minded lawyers never care to pamper Judges of the past. Nevertheless, there are some Judges who had behaved well with the Bar who continue to gain attention, regard, respect, love and affection from the members of the Bar even after they lay down their office. Shri Justice Ajithkumar finely fills this bill.

The High Court of Kerala is really losing a fine Judge in the retirement of Shri Justice Ajithkumar. He, however, will continue to get the regard, respect and warmth from the members of the Bar, who all will remember him as a gentleman Judge. May God bless him with good health and happiness.

Adjournment is always the Discretion of the Court and Never the Right of Lawyer

(By A.S. Madhu sudanan, Advocate, Thalassery)
E-mail : asmadhusudanan@gmail.com                                    Mob.: 9846240366

Obtaining an adjournment is an art. Yet the first job that the most novice junior lawyer is entrusted at the office of his senior is to obtain an adjournment. After enrolment I had to obtain several hundred adjournments on behalf of the senior lawyers, I practiced under. And on many occasions the Court was not pleased to grant an adjournment in spite of my vehement prayers which sometimes, led to devastating consequences.

Once I sought an adjournment from a Sub Judge and my excuse was that the senior lawyer holding vakalath was out of station as he had to appear in a brief in Ernakulam at the Kerala High Court. The lawyer on the opposite side was present and ready and a witness was also present on that day for examination. Naturally the Sub Judge was not inclined to grant the adjournment and some other arrangement had to be made for cross examining the witness present on the day. I was left with a notion that the Judge who refused to grant me an adjournment at my request was very prejudiced against me. However this experience also motivated me examine the relevant statutory provisions under which adjournment is granted and to study the same. As and when I went through the said provisions my notion with regard to the Sub Judge disappeared and I came to understand that the adjournment is the discretion of the Court to be exercised on the  well-established principles laid down under the respective procedural laws governing civil and criminal jurisprudence.

I came to understand that under Code of Civil Procedure the provisions relating to adjournment is Order XVII. The said provision has three sub rules but Order XVII Rule 1 is the most important provision relating to the principles upon which the Civil Court is expected to grant adjournment for the day in a civil proceedings. As far as the criminal procedure is concerned the relevant provision is Section 309 of the Code of Criminal Procedure (Section 346 of the BNSS).

The principles that are to be followed by a Court while granting an adjournment is more or less similar in both civil and criminal cases. Before examining the principles enshrined in the said procedural laws it is important to understand while granting adjournments the courts would consider whether grant of such adjournments will jeopardise the right to speedy trial of the opposite party. InMohanlal & Anr. v. State of Punjab (2013 (4) KLT Suppl.20 (SC) = (2013) 12 SCC 519) the Apex Court was pleased to observe “No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21…”

The general principles enshrined in the Order XVII Rule 1 CPC as well as Section 309 Cr.P.C. or 346 BNSS are as follows: -   

    a. Where hearing or evidence has commenced it shall be conducted on a day to day basis until conclusion and adjournment beyond the next day shall be granted only in exceptional circumstances (Lt.Col.S.J. Chaudhary v. State (Delhi Adminis-tration) (1984 KLT OnLine 1217 (SC) = AIR 1984 SC 618).

    b. If a witness is present for examination the Court is within its discretion to refuse to adjourn the matter (Mohd. Khalid v. State of West Bengal ((2002) 7 SCC 334) at paragraph No 55);

    c. During hearing or during conduct of evidence, adjournment shall not be granted at the request of a party unless for reasons which are beyond the control of the party which necessitates an adjournment;

    d. The fact that the pleader is engaged in another court shall not be ground for
adjournment. (P.G.Thampi v. State of Kerala & Ors. (1993 (2) KLT 926)). While hearing a matter listed for evidence if the pleader is absent as he is out of station or if he is engaged in another Court, the Court is well within its right to refuse to grant adjournment.

Where a witness is present in court but the pleader of the opposite party is not present, the Court is well within its right to record the statement of the party and to dispense with the cross examination of the witness present on the day;

The Court has the discretion to employ the above principles to grant adjournments and sometimes to refuse the same also. In fact in a recent case the Supreme Court took notice of the witnesses turning hostile after tendering chief examination when long adjournment is granted for the purpose of cross examination and therefore held that the chief examination and the cross examination must as far as possible be conducted on the same day. Such a procedure was envisaged by the Apex Court for the purpose of preventing the abuse of the process of law by the parties and witnesses (Mukesh Singh v. State of Uttar Pradesh & Anr.). Similarly in Ramon Services (Private) Limited v. Subhash Kapoor (2001 (1) KLT 34 (SC)) it was held that the cases should not be adjourned to help the striking lawyers.

Hence it is apparent that when an adjournment is sought the Court has to examine whether there is sufficient cause for seeking such an adjournment. Especially in listed matter the Court has to examine whether adjournment is sought for reasons beyond the control of the party and his counsel and that the said adjournment is not merely vexatious or an abuse of the process of the Court. The Court, must refuse to grant the adjournment, at the behest of a pleader who is absent or who is not ready to proceed in the given case or at least grant such adjournment only upon payment of cost for the loss caused to the opposite party. However when the Court is convinced that the party is justified in seeking the said adjournment, the Court shall grant the same possibly by compensating the loss caused to the opposite party or the witness present in the Court on the day. Thus adjournment is always the discretion of the Court to be exercised on sound principles laid down in our procedural laws especially Order XVII Rule 1 of the CPC and Section 309 of the Cr.P.C. which is now replaced by Section 346 of BNSS.

Legal Position if Sarfaesi Proceedings are Initiated
Against Agricultural Land

“Help, master help; here’s a fish hangs in the net, like poor man’s right in the law:
it will hardly come out.” (Shakespeare, Pericles of Tyre, Act II, sc.ii)

(By Advocate Aswin Joe Pichappilly)
E-mail : aswinjoepichappillil@gmail.com                                          Mob.: 6282204281

INTRODUCTION

As per the statutory dictionary in S.2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 no definition for the expression “agricultural land” is given. Whether a particular piece of land is agricultural in nature is a question of fact. In Chapter VI, Section 31 of the Act points out in which all matters the act has no application. Section 31(i) of the Act says that the act has no application in“any security interest created in agricultural land”. So then the question arises in which forum the party needs to approach if SARFAESI proceedings are initiated against the agricultural land. Many litigants approach the civil courts and some at Debt Recovery Tribunal (DRT) to restrain SARFAESI proceedings against agricultural land. Section 34 of the SARFAESI Act expressly bars the jurisdiction of civil courts in any matters in which the Debt Recovery Tribunal or the Appellate Tribunal is empowered to act upon. Sections 17, 17-A, deals with the powers of DRT and Section 18 deals with the powers of the Appellate Tribunal. So there arises confusion amongst lawyers and litigants whether to approach DRT or the Civil courts if SARFAESI proceedings are initiated against agricultural land and who has the burden to prove the same.

CIVIL COURTS AND SARFAESI PROCEEDINGS:

As, per Section 31(i) of the Act says that the act has no application in “any security interest created in agricultural land”. Then the question arises what all lands comes within the ambit of an agricultural land. Then most recently the Honourable Supreme Court inIndian Bank v. K. Pappireddiyar₁it is held that:

“9..............Whether a parcel of land is agricultural must be deduced as a matter of fact from the nature of the land, the use to which it was being put on the date of the creation of the security interest and the purpose for which it was set apart.”

Then the question arises in which forum the litigants need to approach if proceedings are initiated against agricultural land. As per section 9 of the Code of Civil Procedure,

S.9 Courts to try all civil suits unless barred.-The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

On reading Section 31 (i) of the SARFAESI Act it gives a picture that the act has no operation over agricultural land. So the litigants start approaching the Civil Courts seeking relief to restrain the bank from initiating proceeding against the agricultural land. But the bank questions the jurisdiction of the Civil Court on the strength of Section 34 of the SARFAESI Act,

S.34 Civil Court not to have jurisdiction –No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to the Banks and Financial Institution Act, 1993 (51 of 1993).

During the existence of this confusion amongst litigants and lawyers in which forum the initiation of proceedings against agricultural land has to be challenged the Honourable High Court of Kerala make a clarity in Thara Philip v. Federal Bank Ltd., Wayanad ₂that“the property mortgaged would come under the definition of ‘agricultural land’ coming under Section 31(i) of the SARFAESI Act is a disputed question of fact which is to be adjudicated by the Debts Recovery Tribunal having jurisdiction in the matter. The order passed by the Debts Recovery Tribunal is appealable before the DRAT, which is the final fact-finding authority.”

BURDEN AND PROCEDURE IF SARFAESI PROCEEDINGS ARE INITIATED AGAISNT AGRICULTURAL LAND

The burden of proving the proceedings are initiated against agricultural land is upon the petitioner/borrower itself and the Honourable Supreme Court in K.Sreedhar v. Raus Constructions (P) Ltd.₃ observed thus:

“...............When it was the case on behalf of the borrowers that in view of Section 31(i) of the SARFAESI Act, the properties were agricultural lands, the same were being exempted from the provisions of the SARFAESI Act, the burden was upon the borrower to prove that the secured properties were agricultural lands and actually being used as agricultural lands and/or agricultural activities were going on.”

Then arose the confusion at what stage onwards the proceedings to challenge SURFAESI proceedings needs to begin. Actual challenge begins once the borrower/party receives the demand notice under Section 13(2) of the SARFAESI Act, 2002 for repayment within 60 days of receipt of notice. The borrower has the opportunity to make any representation or to raise any objection under Section 13 (3A) within 15 days of receipt of notice under S.13(2) of the SARFAESI Act.

Section 13(3A) of the SARFAESI Act reads as follows:

S.13 (3A) - If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate[within fifteen days] of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower:

Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under Section 17A].

So in this representation or objection under Section 13 (3A) the party/borrower can also initiate the defence that the proceedings are initiated against agricultural land. On receipt of this representation or objection by the bank (secured creditor) on finding that the objection or representation is not acceptable or tenable needs to send a reply within 15 days to the borrower showcasing the reasons for non-acceptance of the representation or objection to the borrower. After which if the bank move on with Section 13(4) proceedings under the Act, then that can be challenged before the DRT under Section 17 of the Act by filing a Securitization Application (SA).

Section 17 of the SARFAESI Act reads thus:

“17. Application against measures to recover secured debts.-

(1) ……………….

(2) ……………..

(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,—

(a) declare the recourse to any one or more measures referred to in sub-section (4) of section 1 taken by the secured creditor as invalid; and

(b) restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and

(c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of Section 13.

(4) ………………………….

(5) ………………………..

(6) ………………………..

(7) ……………………….

Sub-section (3) of Section 17 of the SARFAESI Act gives ample power to the Tribunal to interfere with the measures taken by the banks and financial institutionsunder Section 13. Provision for an appeal to challenge the orders passed by the Debts Recovery Tribunal is also provided under Section 18 of the SARFAESI Act. Therefore, the SARFAESI Act is a complete code providing effective and efficacious remedy to any person aggrieved by the proceedings initiated under Section 13.₄

CONCLUSION

The question as to whether the land is agricultural is to be determined by the DRT. If SARFAESI proceedings are initiated against the agricultural land then the duty is cast upon the borrower to prove that the proceedings are initiated against agricultural land. Even though the Act says that the agricultural land are exempted from SARFAESI Act the hurdles to overcome to prove the same is not that easy. For a common man anywhere in Kerala for challenging the SARFAESI proceedings need to approach the DRT, which is located at Ernakulam. So, it is a not an easy task for a poor litigant, to challenge the SARFAESI proceedings even if initiated against agricultural land.

Foot Notes

1.  2018 (3) KLT OnLine 3041 (SC) = 2018 (18) SCC 252, (Para.9), AIR 2018 SC 3540, 2018 (4) KHC 86

2.  2023 (6) KLT 399, 2023 KHC 684, 2023 KHC OnLine 684, (Para 27)

3.  2023 KLT OnLine 1007 (SC) = 2023 SCCOnLine SC 13, 2023 KHC OnLine 6012 (Para 7.3)

4 . 2023 (6) KLT 399, 2023 KHC OnLine 684, Para 15.

Big Lawyers, Tiny Pay :
The Struggle of Junior Lawyers in Kerala

(By Akhil Ben, Advocate, Trivandrum)
E-mail : akhilben854@gmail.com       Mob.: 6282315526

I still remember the day I was enrolled into the Bar — a day brimming with excitement, pride, and a fierce hunger to conquer the legal world. I’m sure it felt the same for every law graduate driven by the passion to make a name for themselves. But there’s one thing from that day that’s stayed with me. During the enrollment ceremony, a well-known advocate stood before the crowd and told the parents, “You must understand that the first five years for any junior advocate is a learning phase, and it’s the parents’ responsibility to support them financially during this time.”

Back then, it sounded like wisdom. Now, it’s clear — it was nothing but the polite, packaged introduction to a system built on exploitation.

Most juniors work from 9.30 a.m. to 8 p.m., handling files, running errands, preparingnotes, sitting through court hearings and waiting endlessly, all for ₹1000 to ₹ 4500 a month. And on some months, nothing at all. The reason? “It’s court vacation.” As if rent, groceries, or basic dignity takes a vacation too.

The only thing a junior gets in return is a hollow title — “Oh, he/she’s that famous lawyer’s junior.” A name tag that won’t pay bills, won’t feed your family, and certainly won’t keep the lights on for a law graduate from a struggling background. This profession reeks of privilege. It’s tailor-made for those with financially sound parents who can bankroll them for the five years it takes to ‘settle’. Those who can’t ? They get swallowed by the system.

And let’s not even get started on stipends — because those aren’t coming. The real issue is how seniors treat their juniors. Some well-known names in the profession parade around courtrooms with 12 juniors in tow for a basic hearing just to flaunt their following, while paying them next to nothing. And god forbid a junior hints at taking up an independent case — instant shutdown. You’re expected to be loyal, broke, and grateful.

First-generation lawyers have it worse. Parents don’t understand why you complain about the pathetic pay because hey, “your senior is super famous.” You’re told to be patient, to learn, or better yet — quit and let a soulless corporate job drain the life out of you. And while juniors suffocate in cramped, dusty office holes with ancient fans barely spinning and no ventilation, the senior sits comfortably in an air-conditioned room, pocketing fortunes every week.

But hey – your senior’s famous no? This is not mentorship. This is exploitation. Until this mindset changes, this profession will continue to bleed out hardworking, talented lawyers from modest backgrounds, leaving it only for the privileged. And that’s not a profession built on justice — that’s a rigged system.