The Bail Law

In News: 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 ruling about?

• A two-judge Bench of Supreme Court issued certain clarifications to an older judgment delivered in July 2021 on bail reform (Satender Kumar Antil vs CBI).
• 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.
• Of this category of prisoners, majority of them are poor and illiterate and also would include women.
• The court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.

What is the law on bail?

• The CrPC does not define the word bail but only categories 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.
• 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.

And what is the UK law?

• 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.
• 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?

The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary.

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.
• The court made this point to signal that despite its rulings, structurally, the Code does not account for arrest as a fundamental liberty issue in itself.
• It also highlighted that magistrates do not necessarily exercise their discretionary powers uniformly.
• 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 and must be “necessitated”.
• Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence.
• 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 certain Section 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 also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.

Source: Indian Express

Previous Year Question

Q.1) With reference to India, consider the following statements: (2021)

1. Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in Jail.
2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.

Which of the statements given above is/are correct?

1. 1 Only
2. 2 Only
3. Both 1 and 2
4. Neither 1 nor 2