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The latest guidelines on Arrests and Bail Orders

  • Category
    Polity & Governance
  • Published
    5th Aug, 2022

Context

The Supreme Court of India acknowledged the ‘ineffectiveness’ of India’s bail system and has pressed upon the need for reforms and enactment of separate Bail Acts in India.

Background

Details:

  • More than 75% of India’s prison population are under trial and the percentage further increases to 118% when it comes to Indian prison overcrowding.
  • In recent times there have been several controversies regarding the arrest and subsequent bail of accused persons.
  • The Supreme Court has cautioned against “hasty and indiscriminate arrests” and has issued specific guidelines.
  • In Satender Kumar Antil vs CBI (2022) the court has laid down fresh guidelines on arrests in order to have strict compliance with the provisions of Section 41 and 41A of the Code of Criminal Procedure, 1973.

Sections 41 and 41A of the Code of Criminal Procedure:

  • Section 41 provides for the circumstances in which an arrest can be made by the police without a warrant and mandates reasons to be recorded in writing for every arrest and non-arrest.
  • Section 41A provides for the requirement of a notice to be sent by the investigating agencies before arresting certain conditions prescribed by the Code.

Supreme Court's latest Guidelines with respect to Bail:

  • Specific Legislation: Court asked the Government of India for considering the introduction of a separate enactment, in the nature of a Bail Act (as in the United Kingdom) so as to streamline the grant of bails.
    • United Kingdom Bail Act 1976: It prescribes the procedure for granting bail and aims to reduce the size of the inmate population. The Act recognizes a “general right” to be granted bail and has provisions for ensuring legal aid for defendants.
    • The Act provides specific grounds for rejecting bail.
  • Bail application: The court held that there need not be any insistence on a bail application while considering the application under certain Sections of the Code.
    • These sections relate to various stages of a trial where a magistrate can decide on the release of an accused.
    • The Supreme Court held that in these circumstances, magistrates must routinely consider granting bail, without insisting on a separate bail application.
  • Adhering to Timeline: The Court has directed that bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise.
    • The Court also held that “applications for anticipatory bail are expected to be disposed of within a period of six weeks except for any intervening application.
    • Compliance with earlier order: The Court said that there needs to be strict compliance with the mandate laid out in Siddharth vs State of U.P. 2021.

About the Siddharth case: The court stated that “merely because an arrest can be made because it is lawful does not mandate that arrest must be made.” The Court further stated that in case the investigating officer believes that the accused will not abscond or disobey the summons, then until and unless he has been charged for a heinous crime, the officer is not compelled to arrest him during the investigation.

  • Directions to High Courts: The High Courts have been directed by the apex court to identify under-trial prisoners who cannot comply with bail conditions and take appropriate action in light of Section 440 of the CrPC, facilitating their release.
    • About Section 440 CrPC: The amount of bond shall not be excessive, and high courts & sessions courts may reduce the amount prescribed by the magistrate or a police officer.
  • Direction to states: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.
    • The High Court in consultation with the State governments will have to undertake an exercise on the need for special courts and vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.
    • The CJI has also raised the issue of vacant positions and infrastructural requirements in the judiciary.

Bail Adjudication and the Judicial Approach:

  • Ineffective use of discretion: The power to grant bail is largely based on the court’s discretion and depends on the facts of each case.
    • The Court guidelines sometimes validate the denial of bail or imposition of onerous bail conditions based on the gravity of the offense, character of the accused, and likelihood of the accused absconding or tampering with evidence.
    • In all such cases, courts rarely exercise their discretion for granting bail and are likely to take a more stringent approach against the release on bail.
  • Poor bearing the Burnt: Marginalized persons are the most affected ones as either they are denied bail or granted bail with onerous conditions, in absolute disregard of their realities.

Challenges in Bail compliance:

  • Limited means to arrange for money/property and local sureties are the most significant reasons accounting for an under-trial’s inability to comply with bail conditions.
  • In addition, lack of residence and identity proof, abandonment by family, and limitations in navigating the court system also undermine an under-trial’s ability to comply with bail conditions.

Flawed assumptions

  • It presumes that every arrested person will be propertied or have access to propertied social connections.
  • It presumes that the risk of getting penalized in monetary terms is a necessary condition to ensure the presence of the accused in court.
  • Assumptions and prejudiced jurisprudence have the effect of rendering the rule of ‘bail not jail’ meaningless for a significant proportion of undertrial persons

Lack of safeguards

  • Arbitrary arrest: A significant proportion of arrested persons, especially those from disadvantaged sections of society suffer due to a lack of effective enforcement of safeguards against arbitrary arrest.
    • This puts migrants, persons without assets, or those with no contact with family at higher risk of arrest because of their socio-economic conditions.
    • This is another reason for a large number of undertrials in our courts.

Need for an effective Bail Law:

  • The foundations of the current bail law ensure that it is anti-poor and disproportionately burdens those from marginalized backgrounds. The solutions we intend to craft must be based on a deep and realistic understanding of the problem.
  • An effective bail law must be based on the answers to current issues with the variables such as the demographics of undertrials, category of offenses, and timelines for bail, and also address socio-economic and structural barriers.

Conclusion

Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. Compliance with bail conditions for the overwhelmingly structurally disadvantaged under-trials requires constant handholding. This is a crucial aspect of ensuring last mile delivery of justice that the extant bail law does not consider.

For any bail law to effectively provide relief, a careful re-evaluation of the presumptions of the judiciary is crucial. There is an urgent need for bail reform but it would be counterproductive without first developing to understand and diagnosing the problem.

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