The Supreme Court of India, in a recent judgement, underscored the importance of the rule, “Bail over Jail” and issued a slew of guidelines to prevent unnecessary arrest and remand.
The Apex Court also minced no words to hold that India should never become a “Police State”, where investigating agencies act like vessels of the Colonial era. Harold Laski also a Political Theorist from the early twentieth century rightly pointed out that, “An uncontrolled power is the natural enemy of freedom”. The Apex Court also called upon the Union Government to frame a new law to facilitate the grant of bail and usher in objectivity in the criminal justice system to ward off unnecessary arrests, especially in cases where the maximum punishment under the alleged offence is up to seven years in jail. While quoting John EED in “Essays on Freedom and Power”, the Apex Court notes right in beginning that, “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.”
At the outset, this judgment authored by Justice MM Sundresh for a Bench of the Apex Court comprising of Justice Sanjay Kishan Kaul and himself, set the ball rolling by first and foremost putting forth in para 4 that, “Having found that special leave petitions pertaining to different offenses, particularly on the rejection of bail applications are being filed before this Court, despite various directions issued from time to time, we deem it appropriate to undertake this exercise. We do make it clear that all our discussion along with the directions, are meant to act as guidelines, as each case pertaining to a bail application is obviously to be decided on its own merits.”
While disclosing the deplorable condition of jails and undertrials, the Bench states upfront in para 5 that, “Jails in India 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 offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact 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.”
Bail is the Rule
While underscoring the importance of bail, the Bench then observes in para 11 that, “The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India.
In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows:
It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question, whether bail should be granted or refused, is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the “Meerut Conspiracy cases” observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail, which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437.
It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle, which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
In AMERICAN JURISPRUDENCE (2 nd, Vol. 8, p. 806, para 39), it is stated:
‘Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.’
It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”
Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India.
While according paramount importance to presumption of innocence, the Bench then states in para 14 that, “Presumption of innocence has been acknowledged 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 Rights acknowledge the presumption of innocence, as a cardinal principle of law, until the individual is proven guilty.”
Be it noted, the Bench noteds in para 15 that, “Both in Australia and Canada, a 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.”
Most significantly, the Bench then holds in para 73 that, “In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments:
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.”
In essence, the Apex Court has called for a new Bail Law, on which Centre must deliberate, debate and discuss thread bare before taking the final plunge on this. It also merits no reiteration that Centre must also take steps to initiate a more simple mechanism for a person to lodge an FIR in which there is no involvement of the police so that no one is harassed, harangued and humiliated as we see in practical life in so many cases.
Of course, the earlier this is done, the better it shall be for the common person for whose benefit the laws are made! No denying! Also, the Apex Court very rightly called on that, “Liberty as embedded in the Code, has to be preserved, protected and enforced by the criminal courts. Any conscious failure by them would constitute an affront to liberty.” This must be strictly implemented! On women undertrials, the Apex Court rightly regretted that many women who committed cognizable offences are poor and illiterate. The Bench noted that, “The statistics would show that more than 1000 children are living in prisons along with their mothers… There is a grave danger of their being inherited not only with poverty but with crime as well.” The Bench also very rightly asked the Trial Courts to deal with their cases with sensitivity. There can be just no denying what eminent and senior woman advocate Geeta Luthra said quite upfront that, “Unless the courts come down heavily on the police machinery for violating the guidelines laid down in Arnesh Kumar case, they will continue to be non-compliant, depending on how it suits the investigating agency.” No denying it!
Adv. Sanjeev Sirohi is a Lawyer registered with the Meerut Bar. Any views expressed in the post are solely that of the author.