MUKESH KISHANPURIA v.

STATE OF WEST BENGAL (Special Leave Petition (Crl.) No. 3224 of 2010)

MAY 3, 2010 [Markandey Katju and A.K. Patnaik, JJ.]

2010(5) SCR 702

The following order of the Court was delivered

O R D E R

1. Heard learned counsel for the petitioner.

2. This petition has been filed against the impugned judgment and order dated  

26.03.2010 of the High Court of Calcutta whereby the petition under Section 438  

Cr.P.C. for grant of anticipatory bail to the petitioner herein has been rejected.

3. We have gone through the impugned judgment and order and also perused the  

record. We also see no reason to grant anticipatory bail to the petitioner.

4. However, the petitioner may apply for regular bail before the Court concerned  

and alongwith the said application, he may file an application for interim bail pending  

disposal  of  the  regular  bail  application.  We have  made  it  clear  on  a  number  of  

occasions that the power to grant regular bail includes the power to grant interim bail  

pending final disposal of the regular bail application. This power is inherent in the  

power to grant bail, particularly in view of Article 21 of the Constitution of India. We  

are of the opinion that in view of Article 21 of the Constitution, a person should not  

be compelled to go to jail if he can establish prima facie that in the facts of the case  

he is innocent.

5.  Hence,  if  the  present  petitioner  applies  for  regular  bail  before  the  Court  

concerned, he may also file an application for interim bail alongwith the same, which  

application  shall  be  decided  on the  same day  on which  it  is  filed,  pending  final  

disposal of the regular bail application.

6. We also make it clear that the Trial Court shall decide the bail application  

uninfluenced by any observation made by the High Court in the impugned order.

7. The special leave petition stands disposed of in the above terms.