No set formula for bail

By Dr Abhishek Atrey

The Supreme Court has reiterated many times that bail, not jail, is the rule. Despite this, getting bail for clients is a tough task for lawyers as can be seen in the case of Manish Sisodia, Delhi deputy CM, who was arrested in connection with an alleged liquor excise policy violation. This is because no straightjacket formula has been laid down by the apex court for bail. Instead, the Court has left it to the concerned courts to decide the matter based on the facts of each case.

The provisions related to bail are given under Sections 436 to 439 of the Criminal Procedure Code (CrPC). Section 436 provides for bail in bailable offences and Section 437 in non-bailable offences. Section 438 deals with anticipatory bail and Section 439 grants concurrent jurisdiction to Sessions Courts and High Courts to grant anticipatory bail in non-bailable offences. This means that it is not mandatory for any person to approach the Sessions Court first for anticipatory bail; instead, he can approach a High Court directly for anticipatory bail.

Section 436A provides that if in any case during investigation, enquiry or trial, a person has undergone a period of detention up to half of the maximum period of imprisonment provided for that offence, he shall be released on bail except in the cases where death as a punishment has been prescribed. It is often the practice in High Courts and the Supreme Court to grant bail to those who have undergone a period of detention up to half of the maximum period of imprisonment provided for that offence even in cases where appeals are pending either before a High Court or the Supreme Court.

Still the Law Commission of India in its 268th Report 2017 observed that 67% of the present prison population is awaiting trial in India. This fact was taken into consideration by the Supreme Court in Susheela Aggarwal vs State (NCT of Delhi) 2020 where a five-judge Constitution bench issued detailed guidelines for granting anticipatory bail under Section 438 CrPC. In this case, the Court directed that protection under this Section should not be limited for a fixed period and should be given without any restriction of time. Section 438 does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR or recording of statement of any witness by the police during investigation or inquiry. While considering an application for anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, tampering with evidence, intimidating witnesses, or the likelihood of fleeing or leaving the country.

The Supreme Court also directed in this case that the correctness of an order granting bail can be considered by the appellate court at the behest of the prosecution and it does not amount to cancellation of bail in terms of Section 439(2) CrPC. The Supreme Court further stated that it is open to the police or the investigating agency to move the Court which granted anticipatory bail in the first instance for a direction under Section 439(2) for cancellation of bail and to arrest the accused in case of violation of any term such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witness with the view to influence the outcome of the investigation or trial.

In Arnesh Kumar vs State of Bihar 2014, the Court directed that in cases where the offence is punishable for imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, no person shall be arrested automatically by the police, unless they satisfy themselves in writing that his arrest is necessary under the parameters laid down and flowing from Section 41 CrPC, i.e. to prevent further offence by such a person. This is for proper investigation of the offence, to prevent such a person from tampering with evidence, inducement or threat to any witness or unless the presence of the arrested person in court cannot be ensured, as given in Section 41(1)(b)(ii).

The Supreme Court further directed in this case that all police officers be provided with a checklist of Section 41(1)(b)(ii), which they should forward, duly filled and furnished with reasons and materials which necessitated the arrest. While sending the accused before the magistrate for further detention, the magistrate will authorise detention only after recording his statement. The decision not to arrest shall be forwarded to the magistrate within two weeks from the date of institution of the case with a copy to the Superintendent of Police of the district for the reasons to be recorded in writing. The notice of appearance in terms of Section 41A CrPC should be served on the accused within two weeks from the date of institution of the case. In this case, the Supreme Court also stated that non-compliance of this judgment shall be deemed to be contempt of Court.

If we closely look into the judgment of Arnesh Kumar, it nowhere says that in cases where maximum punishment is up to seven years, no person shall be arrested by the police. It only says that in such cases, the police is to record reasons of the arrest of the accused in terms of Section 41(1)(b)(ii) and to forward it to the magistrate with material. There is hardly any case in India where the police produces an accused before the magistrate for his arrest and the arrest is denied.

Therefore, it is for the satisfaction of the police officer and not the magistrate to arrest or not arrest an accused in a case where punishment is up to seven years. The Arnesh Kumar judgment merely prescribes a procedure and nowhere curtails the powers of police officers to arrest accused persons without warrant in non-bailable offences, which is generally misinterpreted by the people at large. Whenever the police wants to arrest any person in a case of non-bailable offence, the grounds mentioned in Section 41(1)(b)(ii) are the only ones used.

Apprehension to intimidate or induce witnesses, the likelihood of fleeing the country, non-cooperation in investigation and tampering are generally the grounds taken by the police in every case where they want to arrest a person.

Therefore to take the ground that the Arnesh Kumar judgment granted a blanket ban on arrest by police officers in all cases where punishment is below seven years or may be extended up to seven years and to knock the doors of the Supreme Court for contempt on this ground alone is a wrong interpretation of this judgment and a gross abuse of the process of court. Such an attempt also creates doubts about the wisdom of the accused as well as his legal advisors.

The writer is Advocate-On-Record, Supreme Court