The top court held that bail continues to be the rule and jail an exception, the touchstone of Article 21, and highlighted the presumption of innocence until proven guilty. The Court felt that “there is a pressing need” to reform the laws on bail and also noted that jails in the country are flooded with under trial prisoners and the majority may not even be required to be arrested despite registration of a cognisable offence.
- The Supreme Court on July 11 had issued directives to courts and investigative agencies to prevent “unnecessary” arrests while urging the central government to frame a new law to simplify the bail process.
- A Bench of Justices Kaul and M.M. Sundresh said there is a “pressing need” to bring the bail law as there is no separate law on bail in the constitution. The judges took into consideration the fact that the conviction rate is “abysmally low” in the country.
- The apex court issued these directions stating that the situation of judicial system which shows heavy number of arrests, reflects a colonial mindset and creates the impression of a “police state”. The judges also referred to the UK’s Bail Act of 1976 that stresses upon the right of an individual to liberty.
The Supreme Court observed that unwarranted arrests are carried out in violation of Section 41 (CrPC), which empowers police to arrest without a warrant; and Section 41A (CrPC), which deals with the procedure for appearance before police. In a set of clarifications issued in a 2021 ruling on guidelines for considering bail for offences under the Criminal Procedure Code (CrPC), 1973, the Supreme Court observed that arrest is a “draconian” measure that should be used “sparingly”. It held that bail continues to be the rule and jail an exception, the touchstone of Article 21, and highlighted the presumption of innocence until proven guilty.
What Are The Guidelines Suggested by Supreme Court on Bail?
- The apex court noticed that the Code of Criminal Procedure (CrPC) still retains some of the provisions from the pre-independence time, stressing on “unwarranted arrests” that curtail human right of liberty.
- Court urged the Centre to frame a legislation in the nature of a “Bail Act” to streamline the process of bails, stressing the need to ensure due procedure for arrests and a time limit for disposal of bail applications.
- Bail applications have to be disposed off within two weeks except when provisions mandate otherwise, the Court stated. On anticipatory bail, it said a plea has to be decided within six weeks.
- The Court said that there need not be any insistence on a bail plea while considering a plea under Sections 88, 170, 204 and 209 of CrPC. This will significantly increase the bail prospects of an accused, as courts typically tend to remand the accused on production by the police or on appearance before it in response to a summons or a warrant, and consider bail only if the accused files an application.
- Following these guidelines, the accused can be granted bail on the court’s own discretion in some situations. For instance, when a person is present in court and is required to appear in the same or in another court later, it can take a bond (under Section 88) instead of remanding in custody.
- Bail can also be granted when one has been produced by a police officer (Sec. 170) or when the court issues process — either a summons to answer a complaint, or a warrant to appear after the police files a charge sheet (Sec.204) or when a case is committed by a magistrate for trial to a sessions court (Sec. 209).
- Investigating agencies and officers have to comply with Sections 41 and 41A, it said, adding that action will follow any dereliction of duty. It ruled that non-compliance with Sections 41 and 41A at the time of arrest will entitle the accused to bail. Section 41 deals with the arrest in a cognisable offence where punishment is imprisonment for a term which may be less than seven years. Section 41A relates to the procedure of the notice of appearance before a policeman in cases where the arrest is not required. Notably, a police officer is required to record reasons for arrest or not to arrest in writing as per the rule.
- The Bench directed State Governments and Union Territories to facilitate standing orders for the procedure to be followed under Sections 41 and 41A to avoid unwarranted arrests. “We do feel that this would certainly take care of not only the unwarranted arrests but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years,” the Court noted.
- The Court directed high courts to identify undertrials who are unable to comply with bail conditions and take action to facilitate their release.
Provisions Under the Present Law:
As per the present provisions of the legal system, the offences are categorised as bailable and non-bailable under Code of Criminal Procedure. The Indian legal system that defines bail, related provisions are mentioned in the CrPC and punishments under the IPC.
- As per Section 436, bail is a right in bailable offences and the police or court, whoever has custody, is bound to release the accused following furnishing of a bail bond, with or without surety.
- For a non-bailable offence, an accused cannot claim bail as a right. In such cases, Section 437 empowers the Magistrate to deal with pleas, except for offences ‘punishable with death or imprisonment for life’.
- A provision mandates the court to consider granting bail to an accused below 16 years, someone who is sick, or is a woman.
- The CrPC also lists provisions for the cancellation of bail.
