The Supreme Court's judgment in Satender Kumar Antil versus CBI is a welcome step for bail in certain cases, but should we be hopeful when it comes to compliance?
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THE recent Supreme Court judgment in the case of Satender Kumar Antil versus CBI gave clarity on granting bail in cases where a person has not been arrested at the time of filing of the charge sheet. The judgment saves unnecessary harassment in some instances, wherein despite not being arrested throughout the investigation, a person is subsequently arrested simply because the investigation is over.
A charge sheet was filed against Satender Kumar Antil under Section 120B (punishment of criminal conspiracy) of the Indian Penal Code and Section 7 (offence relating to public servant being bribed) of the Prevention of Corruption Act by the Central Bureau of Investigation (Anti Corruption Branch), Ghaziabad on the allegation of demanding a bribe when he was posted as Assistant Provident Fund Commissioner at the Regional Office, Employees Provident Fund Organisation, Noida. He was not arrested during the investigation. The trial court took cognisance upon the charge sheet and issued summons against Antil to appear before the court.
Since he failed to appear, a bailable warrant was issued, and subsequently a non-bailable warrant when he continued not to appear before the trial court. Apprehending arrest, Antil preferred anticipatory bail before the Allahabad High Court, which was rejected on the ground that he had not surrendered before the trial court and that he was posted as Assistant Provident Fund Commissioner in the concerned office when the bribe amount was recovered. Against this order dated July 1, 2021, he preferred a Special Leave Petition before the Supreme Court.
The judgment deals with Section 170 of Code of Criminal Procedure ('CrPC'), which provides that once the investigation is over and a charge sheet is filed against the accused, the officer in charge of the police station has to forward the accused under custody to a Magistrate.
It is only if the offence is bailable that the accused is entitled to bail. In practice, however, the provision led to mechanical arrest of people even if they were not arrested during the investigation. Though anticipatory bail was maintainable in such circumstances, courts are reluctant to grant bail.
The Supreme Court was confronted with a similar situation in the present matter, where it found it difficult to accept the mechanical practice of sending the accused to jail, even when two conditions were fulfilled — that they were not arrested during the investigation, and that they cooperated with the investigating agency.
“The test of the Shailesh Kumar Antil judgment will be whether it is complied with or not as it is not the first case where the Supreme Court has given mandatory guidelines on bail, that have been subsequently flouted by the police and lower courts.
The guidelines were laid down in three phases. The first set of guidelines were issued by an order dated October 7, 2021. The offences were separated into four different categories, and guidelines were given keeping in mind the two conditions. The four categories are: a) Offences punishable with imprisonment of seven years or less not falling in categories b and d; b) Offences punishable with death, imprisonment for life, or imprisonment for more than seven years; c) Offences punishable under special Acts containing stringent provisions for bail, like the Prevention of Money-Laundering Act, 2002 ('PMLA'), the Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities (Prevention) Act, 1967, and the Companies Act, 2013; and d) Economic offences not covered by special Acts.
On December 16, 2021, the Supreme Court issued certain clarifications with respect to Section 45 of the PMLA, which deals with cognizable and non-bailable economic offences.
On July 11, 2022, the Supreme Court gave its final verdict, clarifying its previous orders, and gave a set of guidelines to be followed under the four categories of offences it formed in its October 7, 2021 order.
A detailed analysis of the judgment can be found here.
Have Supreme Court's guidelines helped reduce the tribulations of undertrial prisoners?
The judgment highlights age-old problems — jails being flooded with undertrial prisoners, the majority of whom do not need to be arrested, the colonial mind-set of investigative agencies, the flouting of principles like 'bail is the rule while jail is the exception', and more.
However, the judgement doesn't give us any new solutions. For example, the Supreme Court directed state governments to issue standing orders in line with the Delhi Police Standing Order No. 109 of 2020.
The Supreme Court passed this order with the observation that they felt the guidelines would certainly take care of 'unwarranted arrest' and prevent clogging of bail applications in offences punishable up to seven years.
Interestingly, fact-checking website Alt News co-founder Mohammed Zubair was arrested by the Delhi police for an offence which involved punishment of up to three years. The Supreme Court's concerns may be misplaced.
The Supreme Court also expects lower courts, like high courts and district courts, to come down heavily on officers who violate Arnesh Kumar. It prescribes contempt of court and departmental action if the police officer or the magistrate violates the dictum of the court. In practice, however, apart from a handful of cases, courts have seldom taken any action for violation of Arnesh Kumar's mandate.
Paradoxically, last year, the Supreme Court refused to entertain a public interest litigation case seeking enforcement of Arnesh Kumar guidelines that it sought to enforce in the present judgment.
“The Supreme Court found it difficult to accept the mechanical practice of sending the accused to jail, even when two conditions were fulfilled — that they were not arrested during the investigation, and that they cooperated with the investigating agency.
Similarly, many other directions passed by the Supreme Court in earlier judgements are scarcely implemented. This includes the expeditious disposal of bail applications, as ordered in Hussain & Anr. versus Union Of India (2017). In this matter, the Supreme Court had asked high courts to monitor and ensure compliance with Section 436A of the CrPC, which provides for grant of bail when a person has undergone detention for half of the maximum prescribed imprisonment.
In fact, the direction to comply with the mandate of section 436A, and to take a liberal view on bail bonds, has been ordered time and again by the Supreme Court, such as in the matter of Re-Inhuman Conditions in 1382 Prisons. The matter is still pending before the Supreme Court for final adjudication, when back in 2016, similar directions were passed to decongest the undertrial population in prisons.
The real test of the judgment will be whether it is complied with or not. This is not the first case where the Supreme Court has given mandatory guidelines on bail, which were subsequently flouted by the police and lower courts. For example, the Supreme Court's decision in D.K. Basu versus State of West Bengal (1996), wherein detailed guidelines were provided for arrest and detention, is a landmark judgment merely on paper and for academic purposes.
Similarly, the guidelines established in Arnesh Kumar versus State of Bihar (2014), though reiterated in the present judgment, are flouted regularly. A favourite legal principle, "bail is the rule, jail is the exception", laid down in the Supreme Court in State of Rajasthan versus Balchand alias Baliya (1978), is barely ever implemented.
In light of the earlier defied precedents, it is necessary to examine the portions of Satender Kumar Antil which have been repeated by the Supreme Court time and again, but are hardly implemented.
One of the major reasons behind the non-compliance with bail guidelines is the discretion of the judge. Judges are guided by their own subjective sense of justice, which sometimes defeats the basic purpose of bail.
For instance, a judge may be liberal in giving bail for an offence of murder but will not give bail in case of a sexual offence, or vice-versa. Of course, it is not beneficial to say that discretion should be taken away, as law cannot be applied formulaically. Rather, it is the need of the day that discretion be exercised judiciously.
Lessons can be taken from the late Justice V.R. Krishna Iyer who, way back in 1977, defined judicial discretion as "discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular."
“Even though the present judgment will ease the process of bail after filing the charge sheet, a bulk of under-trial prisoners are arrested during the investigation and continue to languish in jail even after the commencement of trial.
For trial courts, even if they intend to follow the words of Justice Krishna Iyer, they face constant fear of adverse reactions from the high courts. As said by Justice Abhay Thipsay, former judge of Bombay High Court, "People are afraid of giving bail. There have been instances where actions have been taken rightly or wrongly on judges for granting bail. There is no reverse example. There is a need to create a reverse fear, whereby a judge needs to answer on why a person is kept under detention for such a long time."
The sentiment is echoed by Justice Atul Sreedharan of the Madhya Pradesh High Court, who said: "Unfortunately, there is a preponderant fear of the High Court that action would be taken if the Bail is granted." The trial courts are the first in line to defend a person's liberty, and they need to be freed from this fear if any substantial reform in bail law is to be expected.
While such judgments do give us hope, they often only bring about superficial change. Even though the present judgment will ease the process of bail after filing of charge sheet, a bulk of under-trial prisoners are arrested during the investigation, and continue to languish in jail even after the commencement of trial.
Unless structural solutions are found, for the excessive under-trial prison population, the legal principle — 'bail is the rule and jail is the exception' — will continue to remain only on paper.