Law Commission has issued Report No. 268 - Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail [PDF] suggesting some drastic changes in bail provisions of Cr. P. C. This report significantly focuses on the poor people, where they fail to get bail due to the money-centric provisions of present bail system. Most of the time, such persons even do not get sureties. The report finds the present system inadequate for a better bail system and reformation of criminal justice system in India. Considering the same situation, reports opens up with quoting this para to comment on the situation of Indian criminal justice system:
1. Bail as Right: Any bail practice that result in the incarceration of the accused person without meaningful consideration to ability to pay, alternative methods of ensuring appearance at a trial and the nature of the crime is violative of the rights of the accused. [para 11.1]
2. Mere Suspicion no ground: Right to bail of a person accused of an offence which primarily rests on the presumption of innocence in favour of the accused person in a pre-trial stage, has to be weighed against the competing interest of society and public justice.
3. Against arbitrary Arrest: Reasons shall be recorded by the Investigating Officer prior to making the arrest in the Case Diary as well as the Daily Diary Register and shall also require written approval by the Officer in Charge of the Police Station. Further, the police officer must provide information as to what is the nature of offence and whether the offence is bailable or non-bailable. [para 11.3]
4. Section 50 Cr.P.C. mandatory requires the arresting authority to inform the arrestee of full particulars of the offence for which he is arrested or other grounds if any for such arrest. This must be in writing.
5. The non-completion of the investigation shall not, in the absence of a special order of a Magistrate, be deemed to be a sufficient cause for the detention of an accused person. A remand to police custody may be granted for compelling reasons when it is shown in the application that there is good reason to believe that the person accused of the offence can point out properly or otherwise assist the police in elucidating the case. [11.5]
6. In s. 436A of Cr.P.C. where the under trial accused is involved in an offence the imprisonment up to seven years, he should be released on bail on spending one-third period of the maximum punishment prescribed for that offence. For other offences carrying higher punishment, he may be released on bail after serving half of the maximum punishment prescribed for that offence. To ensure effective compliance of s. 436A of Cr.P.C. report recommends a Nodal Officer, which shall be Secretary to the District Legal Services Authority.
7. In s. 438 of Cr.P.C. after examining large number of cases, it is recommended that anticipatory bail must be for a period prescribed by the Court granting such bail or till the charge-sheet is filed, whichever is earlier.
8. Bail application may normally be decided by the subordinate court within one week and the High Courts shall frame rules accordingly. And Report also recommends court to have liberal approach in economic offences.
Other Suggestions
Among other recommendations, report has also suggested to employ central intelligence database and electronic tagging of the prisoners, which may further heat up the privacy issues.
With the help of statistical data and analysis and comparing with international legal standards, 21st Law Commission's 268th Report has suggested a wide range of changes to the bail provisions of Cr.P.C. rather than suggesting altogether a new Act related to bail. The main suggestions are as follows:…[i]f more than 50% of all detainees, and in some countries more than 70% are in pre-trial detention..., something is wrong. It usually means that criminal proceedings last far too long, that the detention of criminal suspects is the rule rather than the exception, and that release on bail is misunderstood by judges, prosecutors and the prison staff as an incentive for corruption…1 Here the rod is, as it were, held 'in terrorem' over the evildoer, innocuous so long as he behaves well, but ready to descend at any moment if he breaks his promise of good behaviour, for if he does, his bail can be forfeited.[Law Commission of India, Report No. 268, Pg No. 1]
1. Bail as Right: Any bail practice that result in the incarceration of the accused person without meaningful consideration to ability to pay, alternative methods of ensuring appearance at a trial and the nature of the crime is violative of the rights of the accused. [para 11.1]
2. Mere Suspicion no ground: Right to bail of a person accused of an offence which primarily rests on the presumption of innocence in favour of the accused person in a pre-trial stage, has to be weighed against the competing interest of society and public justice.
3. Against arbitrary Arrest: Reasons shall be recorded by the Investigating Officer prior to making the arrest in the Case Diary as well as the Daily Diary Register and shall also require written approval by the Officer in Charge of the Police Station. Further, the police officer must provide information as to what is the nature of offence and whether the offence is bailable or non-bailable. [para 11.3]
4. Section 50 Cr.P.C. mandatory requires the arresting authority to inform the arrestee of full particulars of the offence for which he is arrested or other grounds if any for such arrest. This must be in writing.
5. The non-completion of the investigation shall not, in the absence of a special order of a Magistrate, be deemed to be a sufficient cause for the detention of an accused person. A remand to police custody may be granted for compelling reasons when it is shown in the application that there is good reason to believe that the person accused of the offence can point out properly or otherwise assist the police in elucidating the case. [11.5]
6. In s. 436A of Cr.P.C. where the under trial accused is involved in an offence the imprisonment up to seven years, he should be released on bail on spending one-third period of the maximum punishment prescribed for that offence. For other offences carrying higher punishment, he may be released on bail after serving half of the maximum punishment prescribed for that offence. To ensure effective compliance of s. 436A of Cr.P.C. report recommends a Nodal Officer, which shall be Secretary to the District Legal Services Authority.
7. In s. 438 of Cr.P.C. after examining large number of cases, it is recommended that anticipatory bail must be for a period prescribed by the Court granting such bail or till the charge-sheet is filed, whichever is earlier.
8. Bail application may normally be decided by the subordinate court within one week and the High Courts shall frame rules accordingly. And Report also recommends court to have liberal approach in economic offences.
Other Suggestions
Among other recommendations, report has also suggested to employ central intelligence database and electronic tagging of the prisoners, which may further heat up the privacy issues.
The technical architecture of the Crime and Criminal Tracking Network and Systems (CCTNS) scheme may be adapted and utilized to ensure that the person accused of an offence does mark his appearance, by taking a picture and/or his fingerprints, name, father’s name, mother’s name, spouse’s name, address, date of birth, mobile number, contact number, driving license, voter ID, Aadhaar number and criminal history, if any. [Pg. No. 98 para 11.25]
Electronic tagging has the potential to reduce both fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense) [para 11.29]
However, Law Commission has
suggested to use the mechanism with 'highest degree of caution' in
the wake of having 'grave and significant impact on constitutional rights of electronic monitoring
system.'
The Law Commission the grave and significant impact on constitutional rights of electronic monitoring system and it is of the opinion that such system, if used, must be implemented with highest degree of caution. Such monitoring must be used only in grave and heinous crimes, where the accused person has a prior conviction in similar offences. [para 11.27]
You can download Law Commission of India 268th Report here.
Read Report here.
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