Pressing need for law in India to streamline grant of bails, says Supreme Court

The bench noted, “Our belief is also for the reason that the Code as it exists today is a continuation of the pre-Independence one with its modifications. We hope and trust that the Government would look into the suggestion made in right earnest.”

Underlining that bail is the rule and jail an exception, the bench also asked “courts to come down heavily on” police “officers effecting arrest without due compliance of Section 41 and Section 41A (CrPC)” dealing with arrest of persons, as directed by the top court in its 2014 judgment in Arnesh Kumar vs State of Bihar and Another case.

Section 41 speaks about “when police may arrest without warrant”; Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognisable offence, and arrest is not required under Section 41.

The court had, in its 2014 ruling, asked states to direct police not to make automatic arrests and instead follow a check list as laid down in sections. As per this, an officer while arresting a person without warrant on a complaint must record the reasons for doing so in writing.

The SC also laid down that the police officer “shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention”. Failure to comply with this, the SC had said, would render the officers liable to departmental action and contempt of court proceedings.

In its order on Monday, the SC said jails in India are “flooded with undertrial prisoners”, the majority of whom “may not even be required to be arrested despite registration of a cognisable offense, being charged with offenses punishable for seven years or less”.

“They are not only poor and illiterate but also would include women,” the bench noted. “Thus, there is a culture of offence 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.”

The court noted that despite its directions in the Arnesh Kumar case, “no concrete step has been taken to comply with the mandate of Section 41A of the Code”.

The bench pointed out that the SC had “clearly interpreted” the law in this regard that it is not enough that to make an arrest, the police officer has a reason to believe, but the satisfaction for the need to arrest shall also be present.

The court said that CrPC Sections 41 and 41A are facets of personal liberty under Article 21 of the Constitution. It said while considering the application for enlargement on bail, “courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code” and “non-compliance would entitle the accused for grant of bail”.

The bench asked all state governments and Union Territories to come up with standing orders for the procedure to be followed under Sections 41 and 41A of the Code. “We do feel that this would certainly take care of not only the unwarranted arrests but also the clogging of bail applications before various courts, as they may not even be required for the offences up to seven years,” it noted.

The bench expressed “hope that investigating agencies would keep in mind the law laid down in Arnesh Kumar…the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory”.

The apex court said, “criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the criminal courts. Any conscious failure by the criminal courts would constitute an affront to liberty. It is the pious duty of the criminal court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos. A criminal court must uphold the constitutional thrust with responsibility mandated on them by acting akin to a high priest.”