Decoding Satender Kumar Antil vs CBI, 2022: Bail or Jail – SC Clarifies the Law and Intricacies Involved
Issue
The issue was of the continuous supply of cases seeking bail after filing of the final report on a wrong interpretation of Section 170 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for short), an endeavour was made by this Court to categorize the types of offenses to be used as guidelines for the future.
That the court was assisted by Mr. S.V. Raju Ld. ASG and Mr. Siddhart Luthra Ld. Sr. Counsel, in terms of the suggestions, the offences have been categorized and guidelines are sought to be laid down for grant of bail, without fettering the discretion of the courts concerned and keeping in mind the statutory provisions.
The court defined the offences in the following way:
Categories/Types of Offences
- Offences punishable with imprisonment of 7 years or less not falling in category B & D.
- Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
- Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.
- Economic offences not covered by Special Acts.
Requisite Conditions
- Not arrested during investigation.
- Cooperated throughout in the investigation including appearing before Investigating Officer whenever called. (No need to forward such an accused along with the charge sheet (Siddharth Vs. State of UP, 2021 SCC online SC 615)
Category A
After filing of charge sheet/complaint taking of cognizance
- Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
- If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
- NBW on failure to failure to appear despite issuance of Bailable Warrant.
- NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
- Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.
Category B/D
On appearance of the accused in Court pursuant to process issued bail application to be decided on merits.
Category C
Definition of Bail
The term “bail” has not been defined in the Code, though is used very often. 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 set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. The word “bail” has been defined in the Black’s Law Dictionary, 9th Edn., pg. 160 as:-
“A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time.”
Wharton’s Law Lexicon, 14th Edn., pg. 105 defines bail as: –
“to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when 8 required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc., the legal power to deliver him.”
Bail is the Rule
The principle that bail is the rule and jail is the exception has been well recognized through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India.
Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271]
It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody.
In AMERICAN JURISPRUDENCE (2nd, Vol. 8, p. 806, para 39), it is stated:
“Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.’ It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”
The Hon’ble Court in Sanjay Chandra V. CBI (2012) 1 SCC 40 has observed that:
- The object of bail is neither punitive nor preventative.
- Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon.
- Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
- Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail.
Presumption of Innocence
International Recognition
The Court added that the principle has been widely recognized throughout the world.
Article 14 (2) of the International Covenant on Civil and Political Rights, 1966 and Article 11 of the Universal Declaration of Human Right acknowledge the presumption of innocence, as a cardinal principle of law, until the individual is proven guilty. Both in Australia and Canada, prima facie right to a reasonable bail is recognized based on the gravity of offence. In the United States, it is a common practice for bail to be a cash deposit. In the United Kingdom, bail is more likely to consist of a set of restrictions.
International Recognition
Sections 41, 41A and 60A
Section 41 – When police may arrest without warrant Section.
Section 41A – Notice of appearance before police officer Section.
Section 60A – Arrest to be made strictly according to the Code.
The Court while referring to Section 41 noted that its non-compliance will certainly inure benefit to the person suspected of the offence. Further, while considering the application for enlargement on bail, Courts will have to satisfy themselves on the due compliance of the provision. Any non-compliance would entitle the accused to grant of bail.
The Court held:
“We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us 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,”
While placing reliance on Arnesh Kumar v. State of Bihar, the Court observed despite its dictum in this case, no concrete step has been taken to comply with the mandate of Section 41A of the Code.
Further, the Bench held that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code.
While referring to the Standing Order passed by the Delhi Police in 2020 that provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officer, the Bench observed,
“We deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that 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 bench held:
“We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code,”
Sections 87 and 88
Section 87 – Issue of warrant in lieu of, or in addition to, summons Section.
Section 88 – Power to take bond for appearance.
The Court while referring to above provisions noted that the Courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant and then a non-bailable warrant may be issued, if so, warranted as held in the case of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1.
The court added:
“Despite the aforesaid clear dictum, we notice that non-bailable warrants are issued as a matter of course without due application of mind and against the tenor of the provision, which merely facilitates a discretion, which is obviously to be exercised in favour of the person whose attendance is sought for, particularly in the light of liberty enshrined under Article 21 of the Constitution,”
Section 167(2)
Section 167 – Procedure when investigation cannot be completed in twenty-four hours.
The Bench held that the object behind the provision is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the society.
The Court noted:
“Presumption of innocence is also inbuilt in this provision. An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, 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. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by this court in M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485,”
Section 170
Section 170 – Cases to be sent to Magistrate when evidence is sufficient.
The Bench placed reliance on Siddharth v. State of U.P. where the scope and ambit of Section 170 has already been dealt with by the Apex Court.
The Court noted that this power has to be exercised by the Court after the completion of the investigation.
The Court held 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 under this section. There is no 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 fair trial.
Section 204 and 209
Section 204 – Issue of process.
Section 209 – Commitment of case to Court of Session when offence is triable exclusively by it.
The Bench held that Section 204 (1)(b) gives a discretion to the Magistrate qua a warrant case, either to issue or warrant a summon, hence this must exercised as a matter of course by following Section 88 of the Code. Under Section 209, the Court made it clear that there is no need for a separate application and Magistrate is required to afford opportunity and pass a speaking order on bail.
Section 309
Section 309 – Power to postpone or adjourn proceedings.
The Court opined:
“One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code 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,”
Section 389
Section 389 – Suspension of sentence pending the appeal; release of appellant on bail.
The Court noted that when it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.
Section 436A
Section 436A – Maximum period for which an undertrial prisoner can be detained.
The Court noted that in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.
The Court added:
“Under this provision, 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,”
Section 437
Section 437 – When bail may be taken in case of a non-bailable offence.
The Court held that the power of the Court is quite enormous while exercising power under this Section. The Court under this provision is empowered to grant bail on special reasons.
The Court added:
“The said power has to be exercised keeping in view the mandate of Section 41 and 41A of the Code as well. If there is a proper exercise of power either by the investigating agencies or by the court, the majority of the problem of the undertrials would be taken care of,”
The Court additionally added:
“Thus, we would like to reiterate the aforesaid position so that the jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life-or-death sentence, has got ample jurisdiction to consider the release on bail.”
Section 439
Section 439 – Special powers of High Court or Court of Session regarding bail.
The Court held:
“While dealing with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court. We do not wish to state that this proviso has to be considered favourably in all cases as the application depends upon the facts and circumstances contained therein. What is required is the consideration per se by the court of this proviso among other factors,”
Section 440
Section 440 – Amount of bond and reduction thereof.
The Court observed:
“Under Section 440 the amount of every bond executed under Chapter XXXIII is to be fixed with regard to the circumstances of the case and shall not be excessive. This is a salutary provision which has to be kept in mind. The conditions imposed shall not be mechanical and uniform in all cases. It is a mandatory duty of the court to take into consideration the circumstances of the case and satisfy itself that it is not excessive. Imposing a condition which is impossible of compliance would be defeating the very object of the release,”
Section 4(1) of the Bail Act of 1976 pertaining to United Kingdom:
“General right to bail of accused persons and others.
4.-(l) A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.”
Even other than the previously mentioned provision, the enactment does take into consideration of the principles of law, on the presumption of innocence and the grant of bail being a matter of right. 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 Articles 14 and 15 of the Constitution of India.
The Bail Act of United Kingdom takes into consideration various factors. It is an attempt to have a comprehensive law dealing with bails by following a simple procedure. The Act takes into consideration clogging of the prisons with the under trial prisoners, cases involving the issuance of warrants, granting of bail both before and after conviction, exercise of the power by the investigating agency and the court, violation of the bail conditions, execution of bond and sureties on the unassailable principle of presumption and right to get bail. Exceptions have been carved out as mentioned in Schedule I dealing with different contingencies and factors including the nature and continuity of offence. They also include Special Acts as well. The Hon’ble Court observed that there is a pressing need for a similar enactment in our country. The court in its judgment stated:
“We do not wish to say anything beyond the observation made, except to call on the Government of India to consider the introduction of an Act specifically meant for granting of bail as done in various other countries like the United Kingdom. Our belief is also for the reason that the Code as it exists today is a continuation of the pre independence one with its modifications. We hope and trust that the Government of India would look into the suggestion made in right earnest.”
Conclusion
In conclusion, the court directed some guidelines / Directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, which may be subject to State amendments:
- 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 Section 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 Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
- All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.
- 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 a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra).
- 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 the 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.
- While insisting upon sureties the mandate of Section 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 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.
- All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.
