Cart before the horse: on bail law in India

Police should not arrest first and then fish for a possible offence

July 19, 2022 12:20 am | Updated 11:33 am IST

Two recent pronouncements, one a judicial order and another a public speech by the Chief Justice of India (CJI), have drawn attention to the manner in which bail law operates in the country. While the Supreme Court, in Satender Kumar Antil vs CBI, has sought to expand the scope for the grant of early bail to those arrested without sufficient cause, the CJI, N.V. Ramana, has bemoaned the injury to personal liberty caused by hasty arrests, hurdles in the way of releasing suspects on bail and the prolonged incarceration of those under trial. The expressions of concern are a timely reminder to regimes that have been using their police powers to crack down on critics, activists and those not politically aligned with them. However, there is an irony in courts batting for personal liberty and lamenting indiscriminate arrests on the one hand, but routinely denying bail or postponing bail hearings on the other. Nevertheless, the verdict reiterating the major principles in favour of granting bail and laying down constructive guidelines for arrest is quite valuable. For instance, the Bench has called for standing orders to adhere to the Arnesh Kumar (2014) principles, based on Sections 41 and 41A of the Code of Criminal Procedure under which a police officer is required to record reasons for arresting an accused and is expected to issue a notice of appearance in cases involving offences that attract a prison term of less than seven years.

The verdict has other positive aspects: setting time limits for the disposal of bail and anticipatory bail applications and underscoring that an arrest must be made only when actually required, or to prevent the accused from fleeing justice or tampering with evidence. In an interesting contribution, the Bench has mooted a separate ‘Bail Act’ on the lines of the one in the United Kingdom to streamline the bail process. It is indeed true that despite the basics of bail law being quite known, especially that bail is the rule, and its denial the exception, there are glaring inconsistencies over who gets bail, who is denied it and at what stage it is given. A separate law may provide a common reference point, but whether it will put an end to the country’s unstated rule, ‘show me the man, and I will show you the law’, will ever fade away. The state of the magistracy also requires an overhaul. Magistrates seem conditioned to authorising mechanical remand whenever someone is produced before them, and to decline bail as soon as the prosecutor opposes it. Therefore, it is indeed welcome that the Court has made it clear that bail can be considered even without a formal application at the stage of production before the court, or when a person responds to a summons or warrant. More than the law, the police must first put an end to the practice of reflexively arresting first and then fishing for a possible offence.

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