Context

• Recently Supreme Court of India in Satender Kumar Antil vs CBI laid down fresh guidelines on arrests in order to have strict compliance with the provisions of Section 41 & 41A of CrPC, 1973.
• The Bench further said that the courts will have to satisfy themselves on the compliance of Section 41 and 41A. Any non-compliance would entitle the accused for grant of bail.
• The Court has also emphasised upon separate legislation on the law relating to bail amid concerns of delay in bails and the plight of undertrial
• The court in recent judgment linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.

About Sections 41 and 41A of CrPC

• Section 41 of the Code provides for the circumstances in which arrest can be made by the police without a warrant and mandates for reasons to be recorded in writing for every arrest and non-arrest.
• Section 41A of the Code provides for the requirement of a notice to be sent by the investigating agencies before making an arrest in certain conditions prescribed by the Code.

Meaning of Bail

• Bail refers to the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.
• Bail in CrPC: The CrPC does not define the word bail but only categories offences under the IPC as ‘bailable’ and ‘non-bailable’.
  • 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 and magistrate in such cases would determine if the accused is fit to be released on bail.

Types of Bail in India

• Regular Bail: It is generally granted to a person who has been arrested or is in police custody.
• Interim Bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
• Anticipatory Bail: It is granted either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence.

Supreme Court earlier observations related to arrest

• Joginder Kumar vs state of UP(1994) verdict: The Court had stated that “arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person”
• Arnesh Kumar vs State of Bihar (2014): The apex Court observed that “arrest brings humiliation, curtails freedom and cast scars forever”.
• Satender Kumar Antil vs CBI (2022): In the recent case, the Court has issued specific directions and has also called for a compliance report related to Section 41 and 41A of CrPC.

Latest SC guidelines with respect to bail

• Specific legislation: Court pointed out that the Government of India may consider the introduction of a separate enactment, in the nature of a Bail Act (as in United Kingdom) so as to streamline the grant of bails.
  • About UK Bail Act 1976: It prescribes the procedure for granting bail and aims to reduce the size of the inmate population.
  • The Act recognises a “general right” to be granted bail and has provisions for ensuring legal aid for defendants.
  • The Act provides specific grounds for rejecting a bail. For instance, 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.
• Bail application: The court held that there need not be any insistence on a bail application while considering the application under certain Sections 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.
• Adhering to Timeline: The Court clearly directed that bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise.
  • The Court also held that “applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
• Compliance with earlier order: The Court said that there needs to be a strict compliance of the mandate laid out in Siddharth vs State of U.P. 2021
  • About Siddharth case : The court stated that “merely because an arrest can be made because it is lawful does not mandate that arrest must be made.”
  • The Court further stated that in case the investigating officer believes that the accused will not abscond or disobey the summons, then until and unless he has been charged for a heinous crime, the officer is not compelled to arrest him during the investigation.
• Directions to High Courts: The High Courts have been directed by the apex court to identify undertrial prisoners who cannot comply with bail conditions and take appropriate action in light of Section 440 of the CrPC, facilitating their release.
  • About Section 440 CrPC: The amount of bond shall not be excessive, and high courts & sessions courts may reduce the amount prescribed by the magistrate or a police officer.
  • A similar exercise has been mandated under Section 436A of CrPC, under which a person imprisoned during investigation or trial shall be released on bail on completion of half of the jail term prescribed for that offence.
• 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.
  • The High Court in consultation with the State governments will have to undertake an exercise on the need for special courts and vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.