Relevance: GS-2: Structure, Organisation and functioning of the Executive and the Judiciary.
Key Phrases: Bailable offences, Cognisable, Code of Criminal Procedure, general right, bail application etc.
Context:
- Recently the Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.
What is the law on Bail?
- The Code of Criminal Procedure (CrPC) does not define the word bail but only categorises offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
- The CrPC empowers Magistrates to grant bail for bailable offences as a matter of right. This would involve release on furnishing a bail bond, with or without security.
- Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant. In such cases, a Magistrate would determine if the accused is fit to be released on bail.
Do you know?
- The Code of Criminal Procedure (CrPC) was first drafted in 1861 and continues to be in use with amendments from time to time.
- Indian Penal Code, 1860 (IPC) is the principal criminal code of India that defines crimes and provides punishments for almost all kinds of criminal and actionable wrongs. CrPC is the procedural law that provides a detailed procedure for punishments under penal laws.
- Cognisable offences are those offences for which a police officer may arrest without a court-mandated warrant.
- For non-cognisable cases the police officer may arrest only after being duly authorised by a warrant.
- Non-cognisable offences are, generally, relatively less serious offences than cognisable ones.
- Cognisable offences reported under section 154 CrPC while non-cognisable offences reported under section 155 CrPC.
What is the Ruling about?
- A two-judge Bench issued certain clarifications to an older judgment delivered in July, 2021 on bail reform (Satender Kumar Antil vs CBI). The 85-page ruling is essentially a reiteration of several crucial principles of criminal procedure.
- Referring to the state of jails in the country, where over two-thirds lodged are undertrials, the Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
- Amongst the undertrials prisoners, majority may not even be required to be arrested despite registration of a cognisable offense, being charged with offenses punishable for seven years or less.
What is the UK Law on Bail?
- The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
- A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”. The law also has provisions for ensuring legal aid for defendants.
- The Act recognises a “general right” to be granted bail.
- Its Section 4(1) raises the presumption of bail by stating that the law applies to a person who shall be granted bail except as provided in Schedule 1 to the Act.
- For rejecting bail, the prosecution must show that grounds exist
for believing the defendant on bail would
- not surrender to custody;
- would commit an offence while on bail;
- or would interfere with witnesses or otherwise obstruct the course of justice;
- unless the defendant must be detained for his own welfare or protection;
- or in other circumstances.
What has the Supreme Court held on reforms?
- Separate Law for Bail:
- The court underlined that the CrPC, despite amendments since independence, largely retains its original structure as drafted by a colonial power over its subjects.
- It highlighted that Magistrates do not necessarily exercise their discretionary powers uniformly.
- Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation.
- Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts.
- Such an action, though by an exercise of discretion despite being a judicial one, would be a grave affront to Articles 14 and 15 of the Constitution of India.
- The court’s solution on this is the framing of a separate law that deals with the grant of bail.
- Indiscriminate Arrests:
- The court noted that the culture of too many arrests, especially for non-cognisable offences, is unwarranted.
- It emphasised that even for cognisable offences, arrest is not mandatory
- A ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured.
- It held that lower courts must satisfy that these conditions are met and “Any non-compliance would entitle the accused for grant of bail”.
- Bail Application:
- There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.
- These sections relate to various stages of a trial where a Magistrate can decide on release of an accused.
- The Supreme Court held that in these circumstances, Magistrates must routinely consider granting bail, without insisting on a separate bail application.
- Direction to States:
- The SC directed all State governments and Union territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.
Conclusion:
- As the world is developing by leaps and bounds such hurdles act as a clog in the wheel in the development of a nation. If the reforms mentioned above are implemented properly then it would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts.
Sources: Indian Express
Mains Question:
Q. Discuss the reasons for the need for reforms in Bail law(s) in the light of the recent Supreme Court judgement. (250 words).
