The Most Recent Clarifications to the Supreme Court Bail Guidelines

~By Abhinav Sekhri

On July 11, 2022, the most recent clarifications were issued by the Supreme Court in respect of the bail guidelines which it had first issued in October, 2021 [MA No. 1849 of 2021 in SLP (Crl) 5191 of 2021, titled ‘Satender Kumar Antil v. CBI‘ (Order dated 11.07.2022)]. This blog had covered the guidelines in October, and then had taken up the first set of clarifications issued by the Court in December, and readers can turn to those posts to get a sense of the background to the most recent order in this series. To be clear, the guidelines in issue here were limited to the issue of bail in scenarios where persons were not arrested during an investigation. 

This short post will only take up the contributions made by the July 11 order, which are, broadly, of two kinds — a further set of clarifications to the existing guidelines, and fresh directions altogether.

The Fresh Clarifications to the Bail Guidelines

Recall that the guidelines worked with a logic of creating four categories of offences for deciding bails in  cases where persons were not arrested during investigation — Category A dealt with offences punishable with imprisonment up to seven years, Category B with offences punishable with more than seven years or death, Category C dealt with offences under special acts with restrictive bail clauses, and Category D was for economic offences not covered by special acts. 

The most lenient approach was asked of courts in respect of Category A, and in respect of Category B cases, the guidelines demanded a ‘case by case’ approach. Not much appears to have changed here at least going by Paragraph 63. But, is it really so for Category B cases? Paragraph 63 does reiterate that “these cases will have to be dealt with on a case-to-case basis” which is the same as the earlier orders, but then it goes on to add that this determination is “keeping in view the general principle of law and the provisions, as discussed by us“. The discussion referred to here takes place through Paragraphs 19 to 62 and it asks courts to follow an approach where coercive processes are strictly kept as a last resort in the non-arrest cases that the guidelines covers. Potentially then, the July 11 order gives a new lease of life to personal liberty for even Category B cases.

In respect of Categories C and D, the clarifications are much more direct, and very substantial. The earlier orders made it uncertain as to whether the fact that a person was not arrested during investigations under a special act would be entirely immaterial when such a person is ultimately appearing before court for bail after completion of investigation, and bail would be governed strictly by the restrictive bail clause. Now, it appears that the Court has made a clean break from this view: 

“65. We may clarify on one aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other offences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of the special act would get applied thereafter. It is only in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. …” [Emphasis mine]

Thus, even in cases of special acts, the fact that the prosecution has ‘consciously’ not arrested an accused is significant as it suggests ‘no need for further arrest at the instance of the court’ upon the start of judicial proceedings. This means that, practically agencies would be barred from invoking the harsh bail clauses at least in such cases, and bail would practically be a matter of asking.

The residuary set of economic offences under Category D was the subject of some criticism on this Blog and elsewhere as it had a breathtakingly wide amplitude. It would appear that the Court has acknowledged its error, noting that “it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis“. Instead, the Court has turned back the clock, and restored an approach where courts would look at the seriousness of allegations and the gravity of the offence as relevant factors [Paragraph 65].  While this is certainly welcome, one would assume that the same express clarifications rendered in respect of Category C cases — that a conscious decision to not arrest signals no need for further arrest — would also equally apply to Category D cases no matter the seriousness of allegations.              

Breaking New Ground

The first half of the July 11 order is where the Court has broken new ground, as a result of which the guidelines have gone much beyond the initial issue of cases where investigations conclude without arrest. 

Predominantly, this new ground is in respect of the discretion vested in police officers to exercise powers of arrest. Paragraph 23 of the order states that courts will have to be satisfied on compliance with Section 41 of the Criminal Procedure Code which outlines the circumstances in which an arrest can be made, and further that “non-compliance would entitle the accused to a grant of bail” (emphasis mine). Besides Section 41, the Court also turned its focus to the directions given by an earlier judgment [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273], that ordinarily arrests ought not be made for alleged offences punishable up to seven years imprisonment at the very first instance and instead notices should be sent under Section 41-A of the Cr.P.C. [Paragraphs 24-28]. It has reiterated the importance of these directions,  called upon state governments to facilitate issuance of standing orders for police to secure compliance [Paragraph 29], and also called upon courts to “come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A” [Paragraph 30].

With respect to bail jurisdiction itself, there are a few additional contributions made expanding the scope of the guidelines. First, the order notes that delay, where not attributed to the accused, should be a factor in favour of granting bail, and towards this the Court has suggested quick timelines for disposing bail applications [Paragraph 73]. Second, that a magistrate exercising jurisdiction under Section 437, Cr.P.C. is competent to consider bail in respect of offences that are punishable with life imprisonment or death, so long as the offence is one that is triable by a magistrate [Paragraph 55] — suggesting thus that in other cases, magistrates may not be so entitled. Third, simply because Section 439, Cr.P.C. does not explicitly state that young age, sickness, or that the applicant is a woman are factors in favour of granting bail, does not mean that these are not applicable for Section 439 — they are applicable in all cases [Paragraph 58]. Fourth, bail conditions ought not to be mechanically imposed and reasonableness of the bond and surety is something which the court must keep in mind [Paragraph 62].      

Conclusion — Some Old, Some New, Lots Left to Hope

This specific bench of the Supreme Court was first presented with instances of police effecting arrests at the conclusion of an investigation presumably invoking Section 170 of the Cr.P.C. in July 2021, and since then it has made significant efforts to try and curb what it viewed as an approach which unjustly curtailed personal liberty. The guidelines approach was new and one which many, including this Blog, do not agree with. The Court has tried to smooth over some rough edges by melding this new approach with what wa the law for some time, and time will tell if this amalgam bears rich fruit. Aware of the socio-legal realities of the Indian criminal process in which our jails are predominantly occupied by undertrial prisoners, and bail ends up being driven more by considerations of guilt or innocence rather than securing appearance of an offender, the Court has expanded its efforts to also try and push for changing this status quo. All in all, the Court can only be commended for making the effort. 

Of course, we have been here before. Many times in fact. In a setup where decisions of arrest and bail are based on exercise of discretion without much statutory guidance on how actors should go about the task, the Supreme Court and various High Courts have tried to fill the gap by issuing guidance on these matters.  Going by the fact that this issue of better exercise of discretion by police and courts is one that is revisited ever so often, it is reasonable to think this guideline-passing exercise only manages to shift the needle ever so imperceptibly on each occasion. Courts obviously know this, and it is for this reason that in the July 11 order the Supreme Court has, once again, called for some legislative guidance on the matter of bail [Paragraphs 67-73]. Statutory guidance through legislation on the lines of the UK Bail Act (referred to by the Court here) is imperative to assure a measure of consistency across individual cases, which is a hallmark of fairness. 

Seven years ago, such a suggestion came from the legislature itself and it led to the issue going before the Law Commission of India; however, midway through the consultative process, the Commission was told that the government no longer wanted to introduce a bail legislation. This exchange resulted in the deeply problematic 268th Report of the Law Commission in 2017. One can only hope that this latest plea for a new legislation from the Supreme Court does not result in mindlessly bringing to life that carceral zombie which the Law Commission had sought to give birth to. Nothing could be more drastically distant from the values that the Supreme Court’s bail guidelines exercise has demonstrated thus far. 

[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]

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