Hon’ble Apex Court in case of Satender Kumar Antil vs Central Bureau Of Investigation | 2022 Live Law (SC) 577 MA 1849 OF 2021 | 11 July 2022 has categorized the offences and laid down guidelines for grant of bail, without fettering the discretion of the courts concerned and keeping in mind the statutory provisions. Supreme Court stressed the importance of the rule "bail over jail" which is part of Article 21 of the Constitution and issued a slew of guidelines to prevent unnecessary arrest and remand.
1. Jails in India are flooded with undertrial
prisoners. The statistics placed before us would indicate that more than 2/3rd
of the inmates of the prisons constitute undertrial prisoners. Of this category
of prisoners, majority may not even be required to be arrested despite
registration of a cognizable offense, being charged with offenses punishable
for seven years or less. They are not only poor and illiterate but also would
include women. Thus, there is a culture of offense being inherited by many of
them", the judgment stated at the outset.
2. Once again, we have to reiterate that 'bail
is the rule and jail is an exception' coupled with the principle governing
the presumption of innocence. We have no doubt in our mind that this provision
is a substantive one, facilitating liberty, being the core intendment of
Article 21.
·
Categories/Types of Offences:
a.
Offences punishable with imprisonment of 7 years or
less not falling in category B & D.
b.
Offences punishable with death, imprisonment for life,
or imprisonment for more than 7 years.
c.
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.
d.
Economic offences not covered by Special
Acts.
·
REQUISITE CONDITIONS FOR BAIL :
i.
Not arrested during investigation.
ii.
Cooperated throughout in the investigation including
appearing before Investigating Officer whenever called.
(No need to forward such an accused along with the
chargesheet (Siddharth Vs. State of UP, 2021 SCC online SC 615).
·
CATEGORY A: After filing of chargesheet/complaint
taking of cognizance.
a)
Ordinary summons at the 1st instance/including
permitting appearance through Lawyer.
b)
If such an accused does not appear despite service of
summons, then Bailable Warrant for physical appearance may be issued.
c)
NBW on failure to failure to appear despite issuance
of Bailable Warrant.
d)
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.
e)
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: Same
as Category B & D with the additional condition of compliance of the
provisions of Bail under NDPS S.37, 45 PMLA, 212(6) Companies
Act 43 d(5) of UAPA, POSCO etc.”
Needless to say that the category A deals with
both police cases and complaint cases.
The trial Courts and the High Courts will keep
in mind the aforesaid guidelines while considering bail applications. The
caveat which has been put by learned ASG is that where the accused have not
cooperated in the investigation nor appeared before the Investigating Officers,
nor answered summons when the Court feels that judicial custody of the accused
is necessary for the completion of the trial, where further investigation
including a possible recovery is needed, the aforesaid approach cannot give
them benefit, something we agree with.
We may also
notice an aspect submitted by Mr. Luthra that while issuing notice to consider
bail, the trial Court is not precluded from granting interim bail taking into
consideration the conduct of the accused during the investigation which has not
warranted arrest. On this aspect also we would give our imprimatur and
naturally the bail application to be ultimately considered, would be guided by
the statutory provisions.
The
suggestions of learned ASG which we have adopted have categorized a separate
set of offences as “economic Offences” not covered by the special Acts.
In this behalf, suffice to say on the submission of Mr. Luthra that this Court
in Sanjay Chandra vs. CBI, (2012) 1 SCC 40 has
observed in para 39 that in determining whether to grant bail both
aspects have to be taken into account:
a)
seriousness of the charge and
b)
severity of punishment.
Click here to read the Judgement.
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