Why Do We Need a New Bail Law?

What Is Bail?

The concept of Bail is dealt under the Criminal Procedure Code. The code does not provide a legal definition of the word “Bail”.

In simple words, Bail means to release an accused on his own bond with or without sureties.

Bail does not set the accused person free instead it imposes restrictions on his movement till the matter is disposed of. Thus, Bail is the provisional release of a detained individual.

There are three types of Bail under the Criminal Procedure Code. They are as follows,

  1. Bail in bailable offenses (Section-436 CrPC)
  2. Bail in non-bailable offenses (Section-437 CrPC)
  3. Anticipatory Bail (Section- 438 CrPC)

To Be Noted: Bail in a bailable offense is the right of the accused whereas bail in a non-bailable offense is the discretion of the court.

The Present Law of Bail

Bail is granted under the various provisions of the criminal procedure code.

Section 41:- If an accused person is arrested for an offense committed where the punishment is imprisonment for a term of less than seven years, and he appears before the police on notice of appearance given to him under section 41A, then the arrest of the accused person is not necessary.

The police will record the reasons for not arresting and release the person with or without bond. This section is created to avoid unnecessary arrests.

Section 88:- Court can grant bail in certain circumstances using the discretion under this section.

If any person who needs to be arrested is already present in the court then the presiding officer who issued such arrest has the power to take a bond for reappearance from that person.

Section 170(during the investigation):- Bail can also be granted when a person is forwarded to the cognizance-taking magistrate by the officer in charge of the police station where the offense committed as per the police report is bailable and that person is ready to furnish security.

Section 204(issue of process):- After the chargesheet is submitted and the magistrate has taken cognizance to proceed with the case by issuing notice to the accused, thereafter the accused appears (receiving summons) or he is brought before (by warrant) the court may release the accused on his own bond.

Technical Bail:-

When bail is granted by default and not on merit it is known as Technical Bail.

Section 167(during the investigation):- An arrested person is to be produced near the magistrate within 24 hours of his arrest excluding the time spent in travel as per section 57. Though completing an investigation within 24 hours seems highly difficult the police officer submits the arrested to the magistrate with a “forwarding report”.

While a person is in judicial custody the police do not submit the chargesheet within,

  • 90days where the investigation relates to an offense punishable with death, life imprisonment, and imprisonment for a term not less than 10 years.
  • 60days in cases of other offenses,

then the Magistrate has to release the accused person on bail, provided he is ready to furnish bail.

Section 436A (during the trial):- If the punishment for the offenses is not punishable with death punishment and the under-trial prisoner(UTP) has already spent more than half of the period in jail already then the magistrate has to grant bail.

This is also “Technical Bail” because bail is granted due to a lapse of a time period not decided on merit.

Why The New Bail Law?

The Supreme Court has urged the Union Government to bring new bail law for smooth regulation of the bail process in the courts.

The Supreme Court observed that there is an immediate need to reform the bail laws in India citing the reference to the United Kingdom Bail Act of 1976, which talks about bail as a whole aiming to reduce the overcrowding of the jails.

The urgent need to amend a new bail law arises due to the police officers or the agencies not following the guidelines of arrests provided under sections 41 and 41A(notice of appearance before police officer) of CrPC as well as the guidelines mentioned in the Arnesh Kumar v. State of Bihar. High arrest rates and abysmally low conviction rates in the present days are the reasons why we need a new simplified bail law differently. The court also feels that the existing provisions on bail show the colonial mindset of police atrocities.

With regard to arrest, the Supreme Court observed the following points:

  • Protection of the life and liberty of a person by virtue of Article 21 of the Constitution is at stake when a person is arrested. Thus, the Court said that “arrest is a draconian measure that should be used sparingly”.
  • The theory of Bail is the rule, jail is an exceptionstill stands good.
  • Unwarranted arrests are being made in contravention of the guidelines provided u/s 41 and 41A but there exists the presumption of innocence until proven guilty.

Some Guidelines Provided By The Court

  1. The Court held that Bail can also be granted under sections 88,170,204 and 209.
  2. The court clarified that there should not be any instruction on a bail plea while granting bail under sections 88,170,204 and 209(when a case is committed by the magistrate to the court of sessions).
  3. Police officers or investigating agencies have to comply with sections 41(arrest in cognizable offenses where the punishment is less than 7 years of imprisonment) and 41A(notice of appearance before the police officer to be given where the arrest is not necessary). The accused is entitled to bail as well as compensation in cases of non-compliance.
  4. Bail applications are to be heard within two weeks, subject to exceptions. Anticipatory bail matters are to be disposed of within six weeks.
  5. In order to regulate the clogging of jails, the court ordered the High Court to prepare a way out for the release of under-trial prisoners who are not being able to furnish bail.

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