"An Uncontrolled Power Is The Natural Enemy Of Freedom" – Analysis Of CrPC Provisions By SC For Grant Of Bail [Read Judgment]

The two-judge Bench of Justice SK Kaul and Justice MM Sundresh in the case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. laid special emphasis on the various provisions of the Code of Criminal Procedure (CrPC) relating to the grant of bail and discussed them elaborately.

Justice MM Sundresh (Author of the Judgment) quoted "An uncontrolled power is the natural enemy of freedom" written by Harold Laski in Liberty in the Modern State.

The provisions are –

i) Presumption of Innocence

The Bench noted that it is for the agency to satisfy the Court that the arrest was warranted and enlargement on bail is to be denied.

• International Recognition

The Court added that the principle has been widely recognized throughout the world.

Article 14 (2) of the International Covenant on Civil and Political Rights, 1966 and Article 11 of the Universal Declaration of Human Right acknowledge the presumption of innocence, as a cardinal principle of law, until the individual is proven guilty. Both in Australia and Canada, prima facie right to a reasonable bail is recognized based on the gravity of offence. In the United States, it is a common practice for bail to be a cash deposit. In the United Kingdom, bail is more likely to consist of a set of restrictions.

Provisions of Code of Criminal Procedure (CrPC)

• Sections 41, 41A and 60A

Section 41 – When police may arrest without warrant

Section 41A – Notice of appearance before police officer

Section 60A – Arrest to be made strictly according to the Code

The Court while referring to Section 41 noted that its non-compliance will certainly inure benefit to the person suspected of the offence. Further, while considering the application for enlargement on bail, Courts will have to satisfy themselves on the due compliance of the provision. Any non-compliance would entitle the accused to grant of bail.

"We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders," the Court held.

While placing reliance on Arnesh Kumar v. State of Bihar, the Court observed despite its dictum in this case, no concrete step has been taken to comply with the mandate of Section 41A of the Code.

Further, the Bench held that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code.

While referring to the Standing Order passed by the Delhi Police in 2020 that provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officer, the Bench observed, "We deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years."

"We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code," the Bench held.

• Sections 87 and 88

Section 87 – Issue of warrant in lieu of, or in addition to, summons

Section 88 – Power to take bond for appearance

The Court while referring to above provisions noted that the 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 as held in the case of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1.

"Despite the aforesaid clear dictum, we notice that non-bailable warrants are issued as a matter of course without due application of mind and against the tenor of the provision, which merely facilitates a discretion, which 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," the Court added.

• Section 167(2)

Section 167 – Procedure when investigation cannot be completed in twenty-four hours

The Bench held that the object behind the provision is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the society.

"Presumption of innocence is also inbuilt in this provision. 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, as held by this court in M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485," the Court noted.

The Court held that as a consequence of the right flowing from the provisions, Courts will have to give due effect to it, and thus any detention beyond this period would certainly be illegal, being an affront to the liberty of the person concerned. Therefore, it is not only the duty of the investigating agency but also the courts to see to it that an accused gets the benefit of Section 167 (2).

• Section 170

Section 170 – Cases to be sent to Magistrate when evidence is sufficient

The Bench placed reliance on Siddharth v. State of U.P. where the scope and ambit of Section 170 has already been dealt with by the Apex Court.

The Court noted that this power has to be exercised by the Court after the completion of the investigation.

The Court held in a case where the Prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the Magistrate under this section. There is no need for filing a bail application, as the accused is merely forwarded to the Court for the framing of charges and issuance of process for fair trial.

• Section 204 and 209

Section 204 – Issue of process

Section 209 – Commitment of case to Court of Session when offence is triable exclusively by it

The Bench held that Section 204 (1)(b) gives a discretion to the Magistrate qua a warrant case, either to issue or warrant a summon, hence this has to exercised as a matter of course by following Section 88 of the Code.

Under Section 209, the Court made it clear that there is no need for a separate application and Magistrate is required to afford opportunity and pass a speaking order on bail.

• Section 309

Section 309 – Power to postpone or adjourn proceedings

"One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while 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," the Court opined.

• Section 389

Section 389 – Suspension of sentence pending the appeal; release of appellant on bail

The Court noted that when it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

• Section 436A

Section 436A – Maximum period for which an undertrial prisoner can be detained

The Court noted that 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 offense, he shall be released by the court on his personal bond with or without sureties," the Bench added.

• Section 437

Section 437 – When bail may be taken in case of a non-bailable offence

The Court held that the power of the Court is quite enormous while exercising power under this Section. The Court under this provision is empowered to grant bail on special reasons.

"The said power has to be exercised keeping in view the mandate of Section 41 and 41A of the Code as well. If there is a proper exercise of power either by the investigating agencies or by the court, the majority of the problem of the undertrials would be taken care of," the Court added.

The Court additionally added, "Thus, we would like to reiterate the aforesaid position so that the jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail."

• Section 439

Section 439 – Special powers of High Court or Court of Session regarding bail

"While dealing with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court. We do not wish to state that this proviso has to be considered favourably in all cases as the application depends upon the facts and circumstances contained therein. What is required is the consideration per se by the court of this proviso among other factors," the Court held.

• Section 440

Section 440 – Amount of bond and reduction thereof

"Under Section 440 the amount of every bond executed under Chapter XXXIII 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. The conditions imposed shall not be mechanical and uniform in all cases. It is a mandatory duty of the court to take into consideration the circumstances of the case and satisfy itself that it is not excessive. Imposing a condition which is impossible of compliance would be defeating the very object of the release," the Court observed.