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New Delhi: The Supreme Court has said that there is a “pressing need” for the Union government to enact a law to restrain investigating agencies from arresting accused “unnecessarily” while stating that indiscriminate arrests are indicative of a colonial mindset and create an “impression of a police state”, according to Times of India.
Delivering its verdict in Satender Kumar Antil versus Central Bureau of Investigation, a division bench of Justices Sanjay Kishan Kaul and M.M. Sundresh on Monday, July 11, lamented that “jails in India are flooded with undertrials”.
While underlining that “bail is the rule and jail is an exception”, the judges said the government may consider framing something like a ‘Bail Act’ to streamline the process of granting bail.
“Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that more than two-thirds of the inmates of the prison constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognisable offence, being charged with offencses punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them,” Livelaw quoted the court as saying.
The judges said “unnecessary arrests” was due to violation of Section 41 (when police may arrest without warrant) and 41A (any police officer may without a warrant, arrest any person who has been concerned in any cognisable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned) of the Code of Criminal Procedure (CrPC) and the directions issued in the Arnesh Kumar judgment.
“…it certainly exhibits the mindset, a vestige of colonial India, on the part of the investigating agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police state as both are conceptually opposite to each other,” the court observed.
While stating that bail formed the touchstone of Article 21 (right to life and liberty) of the constitution, the bench said, “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.”
The court also said that even for cognisable offences arrest is not mandatory. “If the officer is satisfied that a person has committed a cognisable offence, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect that the said person has c committed an offence, and there is a necessity for arrest.”
The arrest can be considered a “necessity” only when it is observed that it can prevent the person concerned from committing another offence, for carrying out proper investigation and to prevent the person concerned from tampering with evidence or threatening witnesses, the court stated.
The apex court also came down heavily on lower courts in dealing with bail applications in the backdrop of an “abysmally low” conviction rate.
“The rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice,” the court noted.
The court asserted that it is mandatory for the police to record the reasons for arrest in writing while lamenting that such an order from the court earlier is not being adhered to. It categorically said investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the CrPC and the directions issued by the apex court in the Arnesh Kumar (supra) case.
“Any dereliction on their part has to be brought to the notice of the higher authorities by the court,” the bench declared.
The judges went on to underline that regular bail applications ought to be disposed of within a period of two weeks and anticipatory bail within six weeks. They also said all states and Union territories to ensure strict compliance with Section 41 and 41A of the CrPC on the process to be adopted before arresting people.
The court also sought affidavits/status reports from state governments and administrations in Union territories to demonstrate their compliance in the next four months.