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In a major move, the Supreme Court has recommended Central Govt to introduce a special enactment called ‘Bail Act’ in order to streamline the criterias to grant of bail.
The suggestion came when the Division Bench comprising of Justice Sanjay Kishan Kaul and Justice MM Sundresh was dealing with bail applications.
Taking note of the continuous supply of cases seeking bail after filing of the final report on a wrong interpretation of Section 170 CrPC, the Court mader an endeavour to categorize the types of offenses to be used as guidelines for the future.
Shedding light on the ‘prevailing situation’, the Court remarked jails in India are flooded with undertrial prisoners. It disclosed the shocking statistics of that more than 2/3rd of such inmates being under-trial prisoner.
The Court commented on how the colonial minset still prevails and is denting the democratic system.
“Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other.”
It noted that the principle that ‘Bail is the Rule and Jail is the Exception’ has been well recognised through the repetitive pronouncements under the umbrella of Article 21 of Constitution of India.
The Court went on to cite key cases such as Nikesh Tarachand Shah Vs. Union of India & ANR., 2017 Latest Caselaw 823 SC, Sanjay Chandra Vs. CBI , 2011 Latest Caselaw 860 SC,
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The Court then talked about the importance of ‘presumption of innocence’ and how universal the rule is.
“Innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied.”
It analysed Section 41 and 41A CrPC and elaborated the the Arnesh Kumar
The Court was dismayed that despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code.
“This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.”
It mentioned the existence of exclusive Acts in the form of Bail Acts prevailing in the United Kingdom and various States of USA that prescribe adequate guidelines both for investigating agencies and the courts.
Noting that uniformity and certainty in the decisions of the court are the foundations of judicial dispensation, the Court said that persons accused with same offense shall never be treated differently either by the same court or by the same or different courts.
“Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India.”, the Court said.
Stating that the Code as it exists today is a continuation of the preindependence one with its modifications, the Court called on the Government of India to consider the introduction of an Act specifically meant for granting of bail as done in various other countries.
“The Bail Act of United Kingdom takes into consideration various factors. It is an attempt to have a comprehensive law dealing with bails by following a simple procedure. The Act takes into consideration clogging of the prisons with the undertrial prisoners, cases involving the issuance of warrants, granting of bail both before and after conviction, exercise of the power by the investigating agency and the court, violation of the bail conditions, execution of bond and sureties on the unassailable principle of presumption and right to get bail. Exceptions have been carved out as mentioned in Schedule I dealing with different contingencies and factors including the nature and continuity of offence. They also include Special Acts as well. We believe there is a pressing need for a similar enactment in our country.”
Accrodingly, following directions were given:
a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.
b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.
c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.
e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. 83
f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra).
g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.
h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.
i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.
j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.
k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.
CASE TITLE
SATENDER KUMAR ANTIL vs CENTRAL BUREAU OF INVESTIGATION & ANR
CASE DETAILS
MISCELLANEOUS APPLICATION NO.1849 OF 2021
CORAM
Justice Sanjay Kishan Kaul and Justice MM Sundresh