BAIL LAW

• 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.
• A two-judge Bench issued certain clarifications to an older judgment delivered in July 2021 on bail reform (Satender Kumar Antil vs CBI).
• The 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.
• Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.
• The Code of Criminal Procedure (CrPC) was first drafted in 1882 and continues to be in use with amendments from time to time.
• 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.
• This would involve release on furnishing a bail bond, without or without security.
• In case of Non-bailable offences , a magistrate would determine if the accused is fit to be released on bail.
• Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant.
• Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offence under I.P.C. can be granted bail. On the other hand, Section 437 of the Code of Criminal Procedure, 1973 lays down that the accused does not have the right to bail in non-bailable offences. It is the discretion of the court to grant bail in case of non-bailable offences.

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.
• These range from power of the magistrate to take bond for appearance (Section 88) to power to issue summons (Section 204).
• The Supreme Court held that in these circumstances, magistrates must routinely consider granting bail, without insisting on a separate bail application.
• The SC also directed all State governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.
• The CBI has already communicated earlier orders of the Court to special judges under its jurisdiction.
• 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.
• The Indian Penal Code (IPC) is the official criminal code of India drafted in 1860 on the recommendations of the first law commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Thomas Babington Macaulay.
• The Code of Criminal Procedure (CrPC) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1st April 1974.

Way Forward

• Increasing awareness of laws among police personnel, increasing the number of police personnel and stations in proportion to the number of complaints in an area, and including social workers and psychologists in the criminal justice system.
• The focus also needs to be on the victim’s rights and smart policing. There is a need to study the rate of conviction of police officials and their non-compliance of law.

SOURCE: THE HINDU,THE ECONOMIC TIMES,MINT