In its judgment in Satendra Kumar Antil v. Central Bureau of Investigation & Anr., the Supreme Court has thrown light on the bail laws and practices in India. The Hon’ble Court has time and again emphasized on the rule of “bail over jail” rule and has laid down guidelines to avoid unnecessary arrest and remand.
Talking about the prevailing situation in jails the Hon’ble Court has observed:
“Jails in India are flooded with the under trial prisoners. The statistics placed before us would incite that more than 2/3rd of the inmates of the prisons constitute under trial 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”.
The Court also laid down the definition of “Trial” and “Bail”.
“The word ‘trial’ is not explained and defined under the Code.an extended meaning has to be given he word ‘trial’ is not explained and defined under the Code. An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter. Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favorable consideration towards enlargement when investigation is completed, of course, among other factors.”
“The term “bail” has not been defined in the Code, though is used very often.
A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency.
It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. The word “bail” has been defined in the Black’s Law Dictionary, 9th Edn., pg. 160 as: -
“A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time."
Wharton’s Law Lexicon, 14th Edn., pg. 105 defines bail as: -
“to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc., the legal power to deliver him."
In addition to the aforementioned definitions, the Court has also annotated the following regarding “Presumption of Innocence”-
“Innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied.
We may only state that notwithstanding the special provisions in many of the countries world-over governing the consideration for enlargement on bail, courts have always interpreted them on the accepted principle of presumption of innocence and held in favour of the accused.
The position in India is no different. It has been the consistent stand of the courts, including this Court, that presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. Resultantly burden is placed on the prosecution to prove the charges to the court of law.The weightage of the evidence have to be assessed on the principle of beyond reasonable doubt.”
DIRECTIONS ISSUED BY THE COURT-
- 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 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.
- 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.
- 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.
- There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.
- There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra).
- 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.
- 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.
- While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.
- 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.
- 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.
- All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.
Conclusion:
The Court has upheld the principle of “Bail is the rule and jail is the exception” and has further stated that it is on the touchstone of Article 21 of the Constitution of India.
Together with that, while the Court while noting that there are very frequent cases where the custody was continuous, however the accused was ultimately acquitted, the Court has expressly stated that such occurrences is a case of grave injustice.
“The rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.”
