Bail – Grant of – Code of Criminal Procedure, 1973 – ss. 41, 41A, 88, 170, 204 and 209 – Constitution of India – Arts. 21 & 22 – Applications have been filed seeking certain directions/ clarifications, to deal with the aspects governing the grant of bail – Held: The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bail – While considering the application for enlargement on bail, Courts will have to satisfy themselves on the due compliance of sec. 41 of CrPC – Any non-compliance would entitle the accused to a grant of bail – Section 41 and 41A are facets of Article 21 of the Constitution – The directions of Arnesh Kumar v. State of Bihar ought to be complied with in letter and spirit by the investigating and prosecuting agencies – While the view expressed by the Supreme Court on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders – To take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts, all the State Governments and the Union Territories directed to facilitate standing orders, to comply with the mandate of Section 41A – There need not be any insistence of a bail application while considering the application u/ss. 88, 170, 204 and 209 of the Code. Code of Criminal Procedure, 1973 – Special Courts – Constitution of – The State and Central Governments will have to comply with the directions issued by Supreme Court from time to time with respect to 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.Code of Criminal Procedure, 1973 – ss. 436A, 440 – Undertrial Prisoners – The statistics placed before the Court indicated that more than 2/3rd of the inmates of the prisons constitute undertrial prisoners – Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less – 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 sec. 440, facilitating the release – While insisting upon sureties the mandate of sec. 440 of the Code has to be kept in mind – An exercise will have to be done in a similar manner to comply with the mandate of sec. 436A both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh, followed by appropriate orders. Code of Criminal Procedure, 1973 – Bail Application – Disposal of – Timeframe – Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application – Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application. Code of Criminal Procedure, 1973 – Sec. 167(2) – Object and presumption under – It has got a laudable object behind it, which is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society – This is also another limb of Art. 21 – Presumption of innocence is also inbuilt in this provision – The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect – 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 – Such a right cannot be taken away even during any unforeseen circumstances – As a consequence of the right flowing from Sec.167(2), courts will have to give due effect to it, and thus any detention beyond this period would certainly be illegal, being an affront to the liberty of the person concerned – Therefore, it is not only the duty of the investigating agency but also the courts to see to it that an accused gets the benefit of Section 167 (2).Code of Criminal Procedure, 1973 – Sec. 170 – Scope and ambit – A power which is to be exercised by the court after the completion of the investigation – In a case where the prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the magistrate u/s. 170 – There is not even a need for filing a bail application, as the accused is merely forwarded to the court for the framing of charges and issuance of process for trial – However, cases in which the accused persons are already in custody, then, the bail application has to be decided on its own merits – There needs to be Strict Complanace of he mandate laid down in Siddharth v. State of U.P. Code of Criminal Procedure, 1973 – ss. 88 & 204 – s. 204 gives a discretion to a Magistrate, and being procedural in nature, it is to be exercised as a matter of course by following the prescription of sec. 88 – Thus, issuing a warrant may be an exception in which case the Magistrate will have to give reasons. Code of Criminal Procedure, 1973 – s. 209 – It gives ample power to the Magistrate to remand a person into custody during or until the conclusion of the trial – Since the power is to be exercised by the Magistrate on a case-to-case basis, it is his wisdom in either remanding an accused or granting bail – Even here, it is judicial discretion which the Magistrate has to exercise – A Magistrate can take a call even without an application for bail if he is inclined to do so. Code of Criminal Procedure, 1973 – sec. 309 – Bail – It mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence – Any delay on the part of the court or the prosecution would certainly violate Art. 21 – Courts shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own – Therefore, while it is expected of the court to comply with sec. 309 to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. Code of Criminal Procedure, 1973 – sec. 389 – Bail – It concerns itself with circumstances pending appeal leading to the release of the appellant on bail – The power exercisable u/s. 389 is different from that of the one either u/ss. 437 or 439, pending trial – This is for the reason that “presumption of innocence” and “bail is the rule and jail is the exception” may not be available to the appellant who has suffered a conviction – A mere pendency of an appeal per se would not be a factor – However, delay in taking up the main appeal or revision coupled with the benefit conferred u/s. 436A of the Code among other factors ought to be considered for a favourable release on bail. Code of Criminal Procedure, 1973 – sec. 436A – In a case where an appeal is pending for a longer time, to bring it u/s. 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision – When a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense he shall be released by the court on his personal bond with or without sureties – There is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. Code of Criminal Procedure, 1973 – sec. 437 – It empowers the Magistrate to deal with all the offenses while considering an application for bail with the exception of an offense punishable either with life imprisonment or death triable exclusively by the Court of Sessions. Code of Criminal Procedure, 1973 – sec. 440 – The amount of every bond executed is to be fixed with regard to the circumstances of the case and shall not be excessive – Reasonableness of the bond and surety is something which the court has to keep in mind whenever the same is insisted upon, and therefore while exercising the power u/s. 88 also the said factum has to be kept in mind – Imposing a condition which is impossible of compliance would be defeating the very object of the release. Code of Criminal Procedure, 1973 – ss. 436A, 309 167(2), 440 – Special Acts – The general principle governing delay would apply to Special Acts also – To make it clear, the provision contained in sec. 436A would apply to the Special Acts also in the absence of any specific provision – There is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Sec. 309 – The existence of a pari materia or a similar provision like sec.167(2) available under the Special Act would have the same effect entitling the accused for a default bail – Even here the court will have to consider the satisfaction u/s. 440. Bail – Whether Economic Offences should be treated as a class of its own or otherwise – The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence – After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another – Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Practice and Procedures – Criminal Trial – Approach of the Court - Criminal courts in general with the trial court in particular are the guardian angels of liberty - 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. Bail Application – Judicial Dispensation - 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 – The Court 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 – Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation - Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts – Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Arts. 14 and 15 of the Constitution of India. Code of Criminal Procedure, 1973 – Trial - Defined - An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter - In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial - An appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. Code of Criminal Procedure, 1973 – Bail – Defined - A bail is nothing but a surety inclusive of a personal bond from the accused - It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency - It is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial - Bail is the rule and jail is the exception. Presumption of innocence - Onus on the prosecution to prove the guilt before the Court - Presumption of innocence being a facet of Article 21, shall inure to the benefit of the accused – The weightage of the evidence has to be assessed on the principle of beyond reasonable doubt.