Supreme Court seeks to reform bail jurisprudence

A bench of Justices Sanjay Kishan Kaul and M.M. Sundresh has sought to issue directions to fill the legislative void for the purpose.

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ON July 11, a division bench of the Supreme Court issued a slew of directions to be followed while considering bail in different categories of offences under the Criminal Procedure Code ('CrPC'). The bench, which comprised Justices Sanjay Kishan Kaul and M.M. Sundresh, also urged the Union Government to consider enacting a separate statute in the nature of a Bail Act so as to streamline the grant of bail. The bench took note of the fact that jails in the country are flooded with undertrial prisoners.

"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 offence, being charged with offences punishable for seven years or less", Justice Sundresh wrote for the bench. It opined that this exhibits a "mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact that 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 bench cautioned. It reiterated that the principle 'bail is the rule and jail is an exception' is the touchstone of Article 21 of the Constitution.

The bench also directed that regular 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. On anticipatory bail applications, the bench said they are expected to be disposed of within a period of six weeks with the exception of any intervening application.

It categorised criminal offences as follows:

a) Offences punishable with imprisonment of seven years or less, not falling in category 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 Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act') (Section 37), the Prevention of Money Laundering Act, 2002 (Section 45), the Unlawful Activities (Prevention) Act, 1967 (Section 43D(5)), and the Companies Act, 2013 (Section 212(6)), among others. 

d) Economic offences not covered by Special Acts. 

With regard to category A, the bench held that one would expect a better exercise of discretion on the part of courts in favour of the accused. Coming to category B, it said that these cases will have to be dealt with on a case-to-case basis, again keeping in view the general principle of law and the provisions as laid down in the instant judgment.

In so far as category C is concerned, the bench refused to deal with individual enactments "as each special Act has got an objective behind it, followed by the [rigour] imposed". However, it held that the general principle governing delay would apply to these categories also. Giving an example, it said that the provision contained in Section 436A of the CrPC would apply to Special Acts also in the absence of any specific provision to the contrary. It further explained that the rigour as provided under section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person.

Also read: Constitutional Courts can grant bail to accused under UAPA on grounds of fundamental rights violations: SC

The bench made it clear that the more the rigour, the quicker the adjudication ought to be. In these types of cases, the bench added, the number of witnesses would be few and there may not be any justification for prolonging the trial.

For the last category, that is economic offences, the bench held that whether it should be treated as a class of its own or otherwise has already been decided in P. Chidambaram versus Directorate of Enforcement (2019), that is, they are class of their own. The bench opined that the gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence.

"An economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis", it held.

Offences with punishment of seven years or less

Section 41 of the CrPC deals with the arrest in a cognisable offence where punishment is imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine. The bench held that under section 41, a police officer is bound to their reasons in writing while making the arrest. Similarly, the police officer shall record reasons when they choose not to arrest. It declared that non compliance with section 41 shall certainly inure to the benefit of the person suspected of the offence. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail.

Section 41A of the CrPC deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that they have committed a cognizable offence, and arrest is not required under section 41(1). Section 41B deals with the procedure of arrest along with the mandatory duties on the part of the officer making the arrest.

Also read: Keeping in view long incarceration already undergone, SC releases on bail UAPA-accused facing trial

The bench observed that despite the Supreme Court's decision in Arnesh Kumar versus State of Bihar (2014), no concrete step has been taken to comply with the mandate of section 41A of the CrPC. It held that notwithstanding the existence of a reason to believe that the suspect committed the offence, the satisfaction for the need for 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", the bench held.

The bench thus directed that "[t]he investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the [CrPC] and the directions issued by the 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." It further directed that "courts will have to satisfy themselves on the compliance of Section 41 and 41A of the CrPC and any non-compliance would entitle the accused for grant of bail."

In addition, it directed state governments and Union Territories to facilitate standing orders for the procedure to be followed under sections 41 and 41A of the CrPC. The bench also stated that it would expect courts to come down heavily on officers effecting arrest without due compliance with sections 41 and 41A as these provisions are a facet of Article 21.

Section 87 and 88 of the CrPC

Section 87 confers the discretion upon a court to issue a warrant, either in lieu of or in addition to a summons. This power can only be exercised after recording reasons. A warrant can be either bailable or non-bailable. Section 88 of CrPC empowers the Court to take a bond for the appearance of a person with or without sureties.

The bench observed that despite the clear law laid down by the Supreme Court in Inder Mohan Goswami versus State of Uttaranchal (2007), non-bailable warrants are issued as a matter of course without due application of mind and against the tenor of the above provisions, which merely facilitate a discretion; this is obviously to be exercised in favour of the person whose attendance is sought for, particularly in the light of liberty enshrined under Article 21 of the Constitution. In Inder Mohan Goswami, it was held that courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued, if so warranted.

Default bail 

Section 167 of the CrPC deals with situations when an investigation cannot be completed within 24 hours. It is this section which provides for the grant of default bail if the police fails to file a charge-sheet within 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days, where the investigation relates to any other offence. The bench reiterated that this provision is also a limb of Article 21.

"An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic", the bench held.

On delayed trial

Section 309(1) of the CrPC mandates courts to continue proceedings in an inquiry or trial on a day-to-day basis till the completion of the evidence. The bench noted that despite the various directions issued by the Supreme Court to not give unnecessary adjournments resulting in the witnesses being won over, the non-compliance of section 309 continues with gay abandon.

"Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration", the bench observed.

It directed that section 309 must be applied inuring to the benefit of the accused while considering the application for bail.

 "Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by the Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own", the bench held.

It reiterated that the right to a fair and speedy trial is yet another facet of Article 21.

"It is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision under Section 436A of the Code which stands on a different footing", the bench held.

Pending appeals by convicts 

On the aspect of pending appeal by a convict, the bench held that the power exercisable under Section 389 of the CrPC is different from those under Sections 437 or 439 of the CrPC because 'presumption of innocence" and "bail is the rule and jail is the exception" may not be available to the convict who has suffered a conviction. Thus, mere pendency of an appeal per se would not be a factor.

However, it noted that delay in taking up the main appeal or revision, coupled with the benefit conferred under section 436A of the CrPC, among other factors, ought to be considered for a favourable release on bail.

On Section 436A of CrPC

Section 436A sets out the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. The bench held that the word 'trial' should be given an expanded meaning, particularly when an appeal or admission is pending.

Also read: SC continues to grant bail to convicts whose appeals have been pending for years

Consequently, in a case where an appeal is pending for a longer time, to bring it under section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offence, they shall be released by the court on their personal bond, with or without sureties.

The bench observed that under section 436A, there is not even a need for a bail application in a case of this nature, particularly when the reasons for delay are not attributable to the accused. It affirmed that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21.

When bail may be taken in case of non-bailable offence

Section 437 deals with grant of bail in case of non-bailable offences by a court other than the High Court or a Court of Sessions. The bench held that in such cases also, the principle remains the same, that is, bail is the rule. Bail can be denied when the court is satisfied that there are reasonable grounds that the accused has been guilty of the offence punishable either with death or imprisonment for life.

Similarly, if the said person is previously convicted of an offence punishable with death or imprisonment for life or imprisonment for seven years or more, or convicted previously on two or more occasions, the accused shall not be released on bail by the magistrate.

The bench also asked courts to duly take care of the proviso to Section 437, which speaks of an accused under the age of 16 years, or who is sick or infirm, or is a woman.

"In a case pertaining to women, the court is expected to show some sensitivity. We have already taken note of the fact that many women who commit cognizable offences are poor and illiterate. In many cases, upon being young they have children to take care of, and there are many instances when the children are to live in prisons. The statistics would show that more than 1000 children are living in prisons along with their mothers. This is an aspect that the courts are expected to take note of as it would not only involve the interest of the accused, but also the children who are not expected to get exposed to the prisons. There is a grave danger of their being inherited not only with poverty but with crime as well", the bench noted.

Special powers of High Court or Court of Session regarding bail

Section 439 confers power upon the High Court or a Court of Sessions regarding bail. The appeal against the order of the judicial magistrate exercising power under section 437 of the CrPC or in a case triable by the Court of Sessions exclusively, lies under section 439.

Also read: Too Poor to Afford Bail, Kashmiri Students Languish in Agra Jail

The bench directed that the time-limit mentioned in the second proviso to section 439 prescribing for the notice of an application to be served on the public prosecutor within a time limit of 15 days, and the proviso to sub-section (1)(a) of section 439 making it obligatory to give notice of the application for bail to the public prosecutor as well as the informant or any other person authorised by him at the time of hearing the application for bail, should be complied with.

Don't impose excessive condition

The bench held that under Section 440 of the CrPC, the amount of every bond executed under Chapter XXXIII of the CrPC is to be fixed with regard to the circumstances of the case, and shall not be excessive. This is a salutary provision which has to be kept in mind, it added.

"Imposing a condition which is impossible of compliance would be defeating the very object of the release. In this connection, we would only say that Section 436, 437, 438 and 439 of the Code are to be read in consonance. Reasonableness of the bond and surety is something which the court has to keep in mind whenever the same is insisted upon, and therefore while exercising the power under Section 88 of the Code also the said factum has to be kept in mind", the bench held.

Need for law to streamline bail

The bench referred to the Bail Act of the United Kingdom, which is a comprehensive law dealing with bail by following a simple procedure. The Act takes into consideration, as per the bench, clogging of prisons with undertrial prisoners, cases involving the issuance of warrants, granting of bail both before and after conviction, exercise of power by investigating agencies and courts, violation of bail conditions, execution of bond and sureties on the unassailable principle of presumption, and right to get bail.

The bench said it would call upon the Union Government to introduce an Act specifically meant for granting bail as done in various other countries like the United Kingdom.

"Our belief is also for the reason that the Code as it exists today is a continuation of the pre-independence one with its modifications. We hope and trust that the Government of India would look into the suggestion made in right earnest", the bench said.

Click here to view the Supreme Court's full judgment.