Upma Gautam writes: Supreme Court’s contradictory verdicts reinforce the need for a Bail Act

Source: The post is based on an article “Supreme Court’s contradictory verdicts reinforce the need for a bail act” published in the Indian Express on 17th August 2022.

Syllabus: GS 2 Important Provisions of the Constitution of India

Relevance: Fundamental Rights

News: Recently, in Satender Kumar Antil v. CBI, the Supreme Court has given directions on undertrials and pre-trial detentions. The SC has asserted mandatory compliance with Sections 41 and 41A of the Criminal Procedure Code (CrPC).

Criminal Justice Reforms

In the first decade of the 21st century, Section 41 was modified and Section 41A was incorporated into the Code of Criminal Procedure (CrPC). The objective was to reduce the number of arrests by the police for offences punishable by up to 7 years of imprisonment. Further, these initiatives had the potential to reduce custodial violence and lower the burden on courts.

The SC ruling

The SC affirmed its 2014 verdict in Arnesh Kumar vs State of Bihar Case, in which it directed state governments to instruct their police officers to not arrest the accused automatically when the offence is punishable with imprisonment for a term which may be less than seven years.

The Court said that investigating agencies are accountable for compliance with Section 41 and 41A of CrPC.

It reiterated the importance of the “bail over jail” rule and issued a slew of step-by-step procedures to prevent unnecessary arrest and remand.

The government should enact the Bail Act to inject clarity into bail-related matters. While framing, the government should take a cue from the US, UK, Australia, New Zealand, and many other legal systems as well as the recommendations of the 268th Law Commission report.

Ongoing issues in Indian Criminal Justice System (CJS)

As per the Prison Statistics of India 2020, nearly 76% of prisoners are undertrials. The large percentage of undertrials in prison and pre-trial detentions are often a result of unnecessary arrests by investigating agencies and further the unfair application of bail provisions by the court. This led to a violation of the cardinal rule of the presumption of innocence.

Despite direction, the investigating agencies do not judiciously apply Sections 41 and 41A of the CrPC. They continue to take a mechanical approach that regards detentions as the only effective option to complete the investigation. Therefore, a lot of bail applications are pending before district courts, high courts, and the Supreme Court.

Arguments in favour of making immediate arrests and denial of bail to the undertrials

A section of commentators believes that the arrest of the wrongdoer is seen as an effective redressal mechanism by the victim.

Further, if a police officer does not go for immediate detention, it may be considered as a sign of complacency of the authorities.

Moreover, Section 41A has provisions that mandate the immediate arrest of the accused.

On the contrary, recently, In Vijay Madanlal Chaudhary v. Union of India (PMLA case), the Supreme Court upheld the arbitrary conditions of bail under Section 45 of the Prevention of Money Laundering Act, thus discarding the “presumption of innocence” principle.

What should be done?

The Court should not give a contradictory verdict because the operations of investigating agencies do not go in isolation from that of courts. The conflicting and ambiguous approach of courts towards pre-trial incarceration and bail provides investigating agencies avenues to justify flouting of the due processes.

The confusion created by the two decisions of the apex court reinforces the need for a Bail Act.

Investigating agencies and police offices need to sync their approach with the principles of natural justice.

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