The Supreme Court of India held that an accused person cannot be denied bail on the sole ground that a co-accused in the same case has not surrendered or is absconding. The Bench, in an order passed during the 2023 summer session, emphasised that bail considerations must be assessed individually for each accused based on their own circumstances, criminal antecedents, and the evidence against them, rather than being linked to the conduct of other accused persons.
Background
The petitioner sought bail in a criminal case where one or more co-accused had failed to surrender before the trial court. The trial court and the High Court had denied bail, citing among other reasons that the non-appearance of the co-accused created apprehensions about the petitioner's willingness to cooperate with the trial process if released.
The question of whether the conduct of co-accused persons — specifically their absconding or failure to surrender — should influence bail decisions for other accused persons in the same case has been a recurring issue in criminal courts. Trial courts have frequently used the flight of co-accused as an adverse factor, creating a collective liability approach to bail that undermines the individual assessment mandated by Section 439 of the Code of Criminal Procedure, 1973.
Key Holdings
The Supreme Court laid down the following principles:
Individual assessment mandatory: Bail must be determined based on the individual circumstances of each accused person. The conduct, criminal history, and flight risk of one accused cannot be imputed to another merely because they are charged in the same case.
No collective liability for bail: The abscondence or non-surrender of a co-accused does not, by itself, constitute a valid ground for denying bail to a different accused who has appeared before the court and cooperated with the judicial process.
Article 21 primacy: The Court reiterated that personal liberty under Article 21 of the Constitution is a paramount consideration in bail matters. Depriving an individual of liberty based on the actions of another person violates the foundational principles of criminal jurisprudence.
Relevant factors for bail: The Court reiterated that the relevant considerations for bail under Section 439 CrPC include the nature and gravity of the offence, the evidence on record, the likelihood of the accused fleeing justice, the possibility of tampering with evidence or influencing witnesses, and the duration of incarceration already undergone.
Implications for Practitioners
Defence counsel routinely encounter the co-accused absconding argument in bail hearings, particularly in conspiracy and organised crime cases where multiple accused are charged. This ruling provides a definitive precedent to counter that argument.
Practitioners should proactively address the co-accused issue in bail applications by demonstrating their client's individual compliance record — attendance at hearings, cooperation with investigation, lack of flight risk — to distinguish their position from that of absconding co-accused.
For trial court judges and magistrates, this judgment requires a more disciplined approach to bail reasoning. Orders denying bail must articulate grounds specific to the applicant rather than relying on the generalised concern that absconding co-accused create an adverse inference against all accused in the case.