On bail act, SC says can’t have impression of police state

New Delhi, July 12: Liberty, as embedded in the law, has to be preserved and protected, observed the Supreme Court on Monday while directing the Centre to consider framing new legislation on bail to streamline the release of accused in criminal cases noting that the Code of Criminal Procedure as it exists today is a continuation of the pre-independence era with its modifications.

It also noted that jails in the country are flooded with undertrial prisoners and the majority may not even be required to be arrested despite registration of a cognisable offence, news agency PTI reported.

The recommendation to consider framing the new bail law assumes significance given the clogging of bail pleas of several undertrial prisoners including activists, political leaders, and journalists.

The court observed in a democracy, there can never be an impression that it is a police state.

While passing a slew of directions, it observed the rate of conviction in criminal cases in India is abysmally low and this factor weighs on the mind of the Court while deciding 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. 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," said a bench of Justices SK Kaul and MM Sundresh.

It said 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, it said.

It said an investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration.

"Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one.

"Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic," the bench said in its 85-page judgement.

It said High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions so that appropriate steps under the law can be taken for their release.

It said bail applications be disposed of within two weeks except when provisions mandate otherwise while pleas for anticipatory bail be decided within six weeks.

"The Government may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails," the bench said while pronouncing a judgement in a case related to the arrest of a man by the CBI.

It said there is a pressing need for the introduction of an Act specifically meant for granting bail as done in various other countries like the United Kingdom.

"Our belief is also for the reason that the CrPC as it exists today is a continuation of the pre-independence one with its modifications. We hope and trust that the Government of India would look into the suggestion made in right earnest," it said.

It said probe agencies and their officers are duty-bound to comply with section Section 41-A of the CrPC(Notice of appearance before police officer).

The court said the State and Central Governments will have to comply with the directions issued by this Court from time to time concerning the 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," it said.

It said any dereliction has to be brought to the court's notice, followed by proper directions and non-compliance would entitle the accused to grant bail.

It noted jails in the country are flooded with undertrial prisoners and the statistics placed before us would indicate that more than two-thirds of the inmates of the prisons constitute undertrial prisoners.

"Of this category of prisoners, the majority may not even be required to be arrested despite registration of a cognisable offence, 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,"it said.