Consider Introducing Separate Enactment To Streamline Grant Of Bails, Dispose Bail Applications Within Two Weeks – SC To Government

A two-judge Bench of Justice SK Kaul and Justice MM Sundresh issued the following slew of directions –

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra).

g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.

k)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. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.

The Judgment authored by Justice MM Sundresh began with a quote by John E.E.D. in "Essays on Freedom and Power" which states –

"Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man."

The Court also referred to the UK's Bail Act which deals with bails by following a simple procedure.

The Act takes into consideration clogging of the prisons with the undertrial prisoners, cases involving the issuance of warrants, granting of bail both before and after conviction, exercise of the power by the investigating agency and the court, violation of the bail conditions, execution of bond and sureties on the unassailable principle of presumption and right to get bail.

"We believe there is a pressing need for a similar enactment in our country. We do not wish to say anything beyond the observation made, except to call on the Government of India to consider the introduction of an Act specifically meant for granting of 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 preindependence one with its modifications. We hope and trust that the Government of India would look into the suggestion made in right earnest," the Court observed.

The Bench took note of the continuous supply of cases seeking bail after filing a report on a wrong interpretation of Section 170 CrPC and categorized the types of offences to be used as guidelines for the future.

The offences were categorized as –

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

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

Type 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.

Type D - Economic offences not covered by Special Acts.

Applications were filed before the Apex Court seeking certain directions/clarifications to deal with the aspect of the grant of bail.

The Bench took note of the prevailing situation in the country where Jails are flooded with undertrial prisoners. More than 2/3^rd of the inmates of the prisons constitute undertrial prisoners.

The Court also noted that of this category of prisoners, the 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.

The Court continued to add that the undertrial prisoners are not only poor and illiterate but also include women. Thus, there is a culture of offence being inherited by many of them.

The Court while issuing the directions also observed that arrest is a draconian measure resulting in curtailment of liberty and thus, to be used sparingly.