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Need for a separate 'Legislation' on 'Bail' in India.

The Supreme Court of India recently delivered a landmark judgment on the issue of bail law in the country. The judgment, authored by Justice U.U. Lalit, addressed the various aspects of bail, such as the principles governing the grant or refusal of bail, the conditions that can be imposed on bail, the role of public prosecutors and courts in bail matters, and the need for comprehensive legislation on bail.

The judgment was delivered in a criminal appeal filed by one Arnab Goswami, a journalist, and editor-in-chief of Republic TV, who was arrested by the Maharashtra police in connection with an abetment to suicide case. Goswami had approached the Supreme Court after the Bombay High Court rejected his plea for interim bail.

The Supreme Court granted bail to Goswami and two other co-accused in the case, observing that the allegations against them did not prima facie establish any offence of abetment to suicide. The court also noted that the arrest of Goswami was an attempt to silence his voice and interfere with his right to freedom of speech and expression.

The court then proceeded to lay down some broad guidelines on the issue of bail, which are as follows:

- Bail is the rule and jail is the exception. The courts should exercise their discretion in granting or refusing bail with utmost care and caution, keeping in mind the gravity of the offense, the nature of evidence, the antecedents of the accused, and the impact of the crime on society.
- The courts should not impose excessive or unreasonable conditions on bail, which may amount to a denial of bail. The conditions should be relevant to the purpose of bail, which is to ensure the presence of the accused during the trial and prevent tampering with evidence or influencing witnesses.
- Public prosecutors should act fairly and impartially in bail matters. They should not oppose bail merely for the sake of opposition but should assist the courts in arriving at a just decision based on facts and law.
- The courts should not adopt a mechanical approach in granting or refusing bail. They should consider each case on its own merits and circumstances, and apply their judicial mind independently.
- There is an urgent need for comprehensive legislation on bail, which can codify the principles and procedures relating to bail, and provide clear and uniform guidelines for the courts and other stakeholders.

Another milestone judgment of the Hon'ble Supreme Court wherein the guidelines on bail came to be issued by a bench of Justices Sanjay Kishan Kaul and MM Sundaresh in the case of Satender Kumar Antil vs CBI. The judgment, delivered on October 7, 2021, is a landmark one that reiterates the principle of "bail, not jail" and lays down certain conditions for granting bail to accused who are not arrested during the investigation on the filing of the charge sheet.

The background of the case is that the petitioner, Satender Kumar Antil, was an accused in a corruption case registered by the CBI in 2018. He was not arrested during the investigation and was granted anticipatory bail by the trial court. However, after the charge sheet was filed in 2020, the CBI moved an application for cancellation of his anticipatory bail and sought his arrest. The trial court allowed the application and cancelled his bail. The petitioner challenged this order before the Delhi High Court, which dismissed his plea and upheld the trial court's order. Aggrieved by this, he approached the Supreme Court.

The Supreme Court, after hearing both sides, quashed the orders of the trial court and the high court and restored the anticipatory bail of the petitioner. The court observed that there was no change in circumstances or new material to justify the cancellation of his bail. The court also noted that there was no allegation of tampering with evidence or influencing witnesses against him. The court held that once an accused is granted anticipatory bail, he cannot be arrested on the filing of a charge sheet unless there are cogent reasons to do so.

The court also issued some guidelines on the aspect of the grant of bail to accused who are not arrested during the investigation on the filing of the charge sheet. The court accepted the suggestions made by Additional Solicitor General SV Raja and Senior Advocate Sidharth Luthra in this regard. The guidelines are as follows:

- The accused should be given notice by the investigating agency before filing of charge sheet and should be asked to surrender before the court within a reasonable time.

- The accused should cooperate with the investigation and should not abscond or evade the process of law.

- The accused should not commit any offence or indulge in any unlawful activity while on bail.

- The accused should furnish adequate security and abide by the conditions imposed by the court while granting bail.- The court should consider the nature and gravity of the offence, the role of the accused, the possibility of his fleeing from justice, and other relevant factors while deciding on bail.

- The court should not mechanically grant or deny bail to such accused and should exercise its discretion judiciously and cautiously.

The Hon'ble Supreme further Court gave the following guidelines to the government:

- 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 bails. 

- The investigating agencies and their officers are duty-bound to comply with the mandate of Sections 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. 

-The courts will have to satisfy themselves on the compliance of Sections 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail. 

-There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

-There needs to be strict compliance of the mandate laid down in the judgment of this court in Siddharth Vs State of UP.

-The State and Central Governments will have to comply with the directions issued by this 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 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. 

-An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders. 

-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. 

The court also emphasized that these guidelines are not exhaustive and are only illustrative. The court said that each case has to be decided on its own merits and circumstances. The court also clarified that these guidelines apply only to those cases where the accused are not arrested during the investigation on the filing of the charge sheet and not to those cases where they are arrested at any stage.

The judgment is a welcome step towards ensuring that bail is granted as a matter of right and not as a matter of grace. It also reaffirms that liberty is a fundamental right that cannot be curtailed lightly or arbitrarily. It also balances the interests of justice and fair trial with the rights of the accused. It is hoped that these guidelines will be followed by all courts and investigating agencies in letter and spirit.


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