Centre To Consider Framing A Separate ‘Bail Act’ To Facilitate The Large Volume Of Pending Bail Pleas: Supreme Court

Case title:
Satender Kumar Antil Vs CBI and Anr

Date of Order:
11th July 2022

Bench:
Hon’ble Justice SK Kaul and Hon’ble Justice MM Sundresh

Parties:
Appellant- Satender Kumar Antil
Respondents- Central Bureau of Investigation & Anr.

SUBJECT

Taking into account the constant flow of cases requesting bail following the submission of the final report based on an incorrect reading of Section 170 of the Code of Criminal Procedure, the Supreme Court attempted to categorize the sorts of offences to be used as guides in the future.The Court urged the Government on Monday to explore drafting a "Bail Act" to simplify the issuance of bail, a proposal that bears great prominence considering the pending bail petitions of numerous undertrial detainees, including activists, political figures, and journalists.

IMPORTANT PROVISIONS

1. Section 41, Code of Criminal Procedure, 1973- The section elaborates on the situations in which a police officer may arrest an individual without a warrant.
2. Section 41A, Code of Criminal Procedure, 1973- The section states that a police officer must issue a notice directing the person against whom a complaint has been made, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
3. Section 60A, Code of Criminal Procedure, 1973- The section states that arrests by police officers must be made strictly in accordance with the Code of Criminal Procedure.

OVERVIEW

• Taking cognizance of the constant influx of cases requesting bail following the submission of the final report on an incorrect interpretation of Section 170 of the Code of Criminal Procedure, the Court attempted to categorize the sorts of offences to be used as guides in the future. An order for the same was passed on 7th October 2021 with the following categories:

Categories/Types of Offences

A. Offences punishable with imprisonment of 7 years or less not falling in categories B & D.

B. Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

C. Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act,212(6), etc.

D. Economic offences not covered by Special Acts.

• The court discussed the prevailing situation in India regarding bails. It was noted that the jails are overflowing with pending trial prisoners. According to the figures presented, more than two-thirds of the convicts in the jails are awaiting sentencing. The bulk of these convicts may not even be needed to be imprisoned despite registration of a cognizable offence, being charged with charges punishable by seven years or less.
• The court remarked that this situation obviously demonstrates a perspective, a legacy of colonial India, on behalf of the Investigating Agency, despite the fact that arrest is a severe action resulting in limitation of liberty, and hence should be used sparingly. It was stated that there should never be the idea that a democracy is a totalitarian regime since the two are philosophically opposed.
• The court noted that the term "trial" is not defined or addressed in the CrPC. It was stated that the word must be given a broader definition in order for bail to be extended to cover the stage of inquiry and beyond. When it came to the evaluation of bail on suspension of sentence, an appeal or revision must also be understood as a component of the trial.
• The word "bail" also isn't defined in the Code, despite its widespread use. The court stated that bail is nothing more than a surety, which includes a personal bond from the accused. It involves the release of an accused individual by the Court, the police, or the Investigating Agency. Section 2A of the CrPc however, defines a bailable and non-bailable offense.
• It was acknowledged that the principle stating that bail is the rule and jail is the exception has been recognized through the repetitive pronouncements of the Supreme Court and is a cornerstone of Article 21 of the Constitution.
• It was brought to notice that there has been no tangible action done to comply with the obligation of Section 41A of the Code. It has also been brought to attention that there exist no clear instructions for the required compliance with Section 41A of the Code.
• In an order dated 07.02.2018, not only was the necessity for rules examined, but also the consequences of non-compliance on taking action against the officers involved. The court anticipated that the courts be harsh on cops who carry out arrests in violation of Sections 41 and 41A.
• The view was also reflected in the interpretation of the particular requirement under Section 60A of the Code, which required the officer in question to conduct the arrest rigorously in line with the law.
• Regarding the mentioned categories, it was discussed that in category A, one would anticipate the court to use more discretion in favor of the accused. Concerning category B, the instances would have to be handled on a case-by-case basis, again bearing in mind the overall concept of law and the laws examined.
• Concerning the role of the court, it was noted that in India, the conviction rate in criminal trials is dismally low. This element appears to weigh heavily on the Court's mind when determining bail applications. It was stated that because courts believe that the chance of a conviction is becoming more remote, bail petitions must be assessed severely, which goes against legal norms. It cannot consider a bail application that is not punitive in character with the possibility of a trial adjudication. Acquittal with extended custody, on the other hand, would constitute a severe injustice.
• The court drew attention to the presence of exclusive Acts in the manner of Bail Acts in the United Kingdom and many other states in the United States of America which provide appropriate criteria for both investigating authorities and courts.

ISSUES RAISED

Whether the grant of bails can be streamlined to facilitate the pendency of bail pleas of undertrial prisoners and in what way?

JUDGEMENT ANALYSIS

• The court issued directions for the government, investigative agencies as well as the court with regard to the pressing issue. It stated that said directions would be subject to state amendments. They included the following:

1. To streamline the issuance of bails, the Government of India may consider introducing a new statute in the form of a Bail Act.
2. The investigative authorities and their officials would be required to follow the mandate of Sections 41 and 41A of the Code, as well as the directives made by the Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273]. Any failure on their part must be brought to the attention of higher authorities by the court, and appropriate action must be taken.
3. The courts must assure themselves that Sections 41 and 41A of the Code have been followed. Any failure to comply would entitle the accused to bail.
4. The State and Central Governments must follow the orders given by this Court on the formation of special courts occasionally. The High Court, in cooperation with the state governments, will need to conduct an assessment of the necessity for special courts. The vacancies for Presiding Officers of the special courts must be filled as soon as possible.
5. The High Courts are ordered to conduct a search for undertrial convicts who are unable to comply with bail requirements. Following that, necessary action must be done in accordance with Section 440 of the Code to facilitate the release.
6. Bail applications must be resolved within two weeks, unless the requirements require differently, with the exception of an intervening application. anticipatory bail applications are likely to be resolved within six weeks.
7. Within four months, all state governments, union territories, and high courts are required to provide affidavits/status reports.

CONCLUSION

The court issued a slew of instructions to ensure that proper arrest procedures be followed, as well as time limits for the disposition of bail petitions be set. It should be noted that these rules were provided in the same case where the Supreme Court set guidelines last year for the provision of bail to accused who are not arrested during the inquiry on the charge sheet being submitted. These recommendations are significant due to the prevailing situation of the excessive number of undertrial prisoners crowding detention centres due to bail pendency.

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