Enact separate Bail Act to streamline grant of bails: Supreme Court

There is a pressing need for a special bail law in the country, the Supreme Court said on Monday while also emphasising the need to enforce provisions of the Criminal Procedure Code (CrPC) towards arrests and trials [Satender Kumar Antil vs CBI and anr]..A bench of Justice Sanjay Kishan Kaul and MM Sundresh further said that courts should decide bail applications within two weeks except in cases where the law provides otherwise. The Court also ruled that the mandate under Sections 41 and 41A of the Code of Criminal Procedure (CrPC) should be strictly complied with and non-compliance would entitle accused to bail.Criminal courts in particular are guardian angels of liberty and have to preserve, protect and enforce liberty during bail hearings and trials, the Court noted. However, the fact that rate of conviction is abysmally low might be weighing in the minds of courts while deciding bail applications, the Court opined."The rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice."Accordingly, the following directions were ordered to be forwarded to all States and Union Territories: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 Sections 41 and 41A of the Code (these detail the cognisable offences and others for which police can arrest without a warrant, as well need to serve notice) and the directions issued by this Court in Arnesh Kumar. 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 with 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 Delhi High Court dated February 7, 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 (bonds towards summons), 170 (cases for Magistrate), 204 (issue of process) and 209 (Sessions Courts exclusive trial commitment) of the Code. f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth v State of UP. g) 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 same. Vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously. h) High Courts are to find out 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 (about bail bonds being reasonable and non-excessive) of the Code, facilitating 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, regarding time one can remain undertrial being half of maximum jail time in offence, of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh, 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..The Court was hearing a plea where it initially took note of the 'continuous supply of cases seeking bail after filing of the final report on a wrong interpretation of Section 170 of the Code of Criminal Procedure'. It was then endeavoured to categorise the types of offenses to be used as guidelines for the future.Subsequently, applications were filed seeking certain directions and clarifications governing the grant of bail.The views of Senior Advocates Amit Desai and Sidharth Luthra, and Additional Solicitor General SV Raju were heard in this regard. .The Bench its judgment stated at the outset that it was undertaking the present exercise to frame appropriate guidelines, even as each bail plea has to be decided on its own merits. The prevailing situation was that jails in India are flooded with undertrials, the Court noted."The statistics placed before us would indicate that more than 2/3rd of the inmates of the prisons constitute undertrial prisoners. 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," the Court said.The bench then stated that the terms 'bail' and 'trial' are not defined in the CrPC. An extended meaning has to be given to trials towards enlargement on bail, to include and distinguish trials during stage of investigation after arrest. "In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors. Similarly, an appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence," the bench stated.Towards bail, it was reiterated that granting the same was the rule and not the exception. The Court then proceeded to elucidate in detail about the relevant statutory provisions before it eventually issued directions towards compliance with the CrPC by authorities. .[Read Judgment]