Pushing for objectivity and accountability in the criminal justice system to prevent needless arrests, the Supreme Court has directed the Union government to inform it whether a new law to facilitate the grant of bail is in the works.
A bench of justices MM Sundresh and SVN Bhatti referred to its July 2022 judgment in which it had called upon the Centre to consider framing a new law on bail for warding off unnecessary arrests, especially in cases where the maximum punishment under the alleged offence is up to seven years in jail.
“The Union is directed to inform the Court as to whether any bail law is in contemplation or under preparation,” said the bench in its recent order, which was released on Thursday. It further directed the Centre to inform the court as to whether any assessment has been done to ascertain the requirement of creating more special courts for the Central Bureau of Investigation (CBI) case in districts with a high pendency of cases. The court gave the Centre eight weeks to respond. Senior advocate Sidharth Luthra assisted the court as amicus curiae.
In its July 2022 judgment, the top court emphasised that India should never become a “police State” where investigating agencies act like vestiges of the colonial era, issuing a slew of directions for the investigating agencies and the subordinate courts on arrests and grant of bail.
“Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation...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,” the court said at the time while releasing a set of guidelines in the meantime and seeking compliance reports from states and Union territories.
The significant intervention of the top court came at a time when numerous arrests and protracted bail application delays cast doubt on the objectivity and efficacy of the judicial approach to such matters. The apex court has been routinely stepping in to grant bail in cases where the accused have been languishing behind bars for a long period over charges, including those where the maximum punishment is less than seven years in jail. Some of these recent instances included the grant of bail to journalist and fact-checker Mohammed Zubair, who was arrested in connection to his old tweets, and to old and infirm accused such as Varavara Rao and Sudha Bharadwaj in the Bhima-Koregaon case.
Taking stock of the compliance with its directions against routine arrests by state police and central agencies, the bench in its judgment dated February 13 also directed the Central Bureau of Investigation (CBI) to submit details of its officials that the agency has acted against for making unnecessary arrests.
“It is directed to provide the particulars of First Information Reports (FIRs) of cognisable and non-bailable cases in which the mandate of Sections 41, 41-A of CrPC and Arnesh Kumar judgment has not been followed and consequently to provide the details of necessary actions that have been taken against erring police officers,” stated the bench in its order.
Section 41 and 41A of the Criminal Procedure Code (CrPC) along with the 2014 judgment of the Supreme Court in the Arnesh Kumar hold that investigating agencies must refrain from arresting accused for offences entailing punishment up to seven years in jail without first issuing a notice of appearance and then explicitly specifying the need to do so.
In its judgment on February 13, the top court also issued a directive to all states and UTs to comply with a standard operating procedure (SOP) framed by the Centre to alleviate the situation of under trial prisoners by way of establishment of a dedicated empowered committee and funds etc.
Titled “Guidelines and standard operating procedure for implementation of the scheme for support to poor prisoners”, the SOP envisaged creation of a Central Nodal Agency (CNA) that will provide funds to states and UTs for financial support in cases where the under trials or convicts are forced to remain incarcerated for failing to pay for bail bonds or for payment of fines. An empowered committee, comprising district collector, secretary of the district legal services authority, superintendent of police, superintendent of concerned prison and the judge in-charge of the concerned prison, is suggested to be set up in each district to assess the requirement of the fund in appropriate cases.
The court order also dealt with the reports submitted by various state governments and high courts as regards their compliance with the directives issued by it in the July 2022 judgment, as it directed them to submit fresh reports in the next eight weeks.
The guidelines issued by the court in 2022 obligate police officers to record in writing before arresting the accused in cases where the offence is punishable with imprisonment for a term less than seven years; issuance of a proper notice before a suspect is called for questioning; automatic grant of bail in cases where the accused was not arrested during investigation; adoption of a liberal view in cases pertaining to women and the infirm; disposal of bail applications within two weeks; and disposal of pre-arrest bail applications within six weeks.
At the time, the court further referred to a string of guidelines issued by the Delhi high court in 2018 on the procedure to be followed by the police while seeking presence of a suspect for questioning, and directed that all the states and Union territories issue standing orders for the procedure to be followed before making arrests and summoning suspects.
High courts should also monitor the release of under-trials who have suffered at least half the maximum sentence provided under the offence, directed the bench in 2022, adding the courts should not impose harsh conditions of surety while granting bail.
“Once again, we have to reiterate that ‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of innocence... Whatever the nature of the offence may be, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21,” added the top court in 2022, holding that an inordinate delay in concluding a trial would also be a relevant factor in the grant of bail.
TAGS: Supreme Court Bail law Accountability Criminal justice system Arrests Compliance reports Criminal Procedure Code (CrPC)
