Bail law reform-The Hindu-17/07/2022

Bailable vs Non-Bailable
Bail is governed by provisions in the CrPC. Offenses are categorized as bailable and non-bailable. Under Section 436, bail is a right in bailable offenses and the police or court is bound to release the accused following the furnishing of a bail bond,
with or without surety. For a nonbailable offense, an accused cannot claim bail as a right. The discretion lies with the courts.
Section 437 sets out the circumstances in which courts can grant bail for non-bailable offenses. Provision mandates the
court to consider granting bail to an accused below 16years, someone who is sick, or is a woman.

What are some of the guidelines from the Court?

Stressing the need to ensure due procedure for arrests and a time limit for disposal of bail pleas, the Court asked the Centre to consider introducing a “Bail Act”. Bail pleas have to be disposed of within two weeks except when provisions mandate otherwise. A plea for anticipatory bail has to be decided within six weeks. Another guideline is that courts need not insist on a formal bail application in some stages, such as proceedings under Sections 88, 170, 204, and 209 of CrPC. This means that the accused can be granted bail at the court’s own discretion in some situations. For instance, when a person is present in court and is required to appear again later, it can take a bond (under Sec. 88) instead of remanding in custody. Bail can also be granted when a person is produced before court by the police (Section 170) or when the court issues a process – either a summons on a complaint or a warrant after the police files a charge sheet (Sec.204) or when a case is committed by a magistrate for trial in a sessions court (Sec. 209). Investigating agencies and officers have to comply with Sections 41 and 41A, adding that action will follow any dereliction of duty. It ruled that noncompliance with Sections 41 and 41A at the time of arrest will entitle the accused to bail. Section 41 deals with arrest in a cognizable offense where punishment is
imprisonment for a term of fewer than seven years. Section 41A relates to a notice of appearance before a policeman in cases where the arrest is not required. Notably, a police officer is required to record reasons for arresting or not arresting the person. The Bench directed State Governments and Union Territories to facilitate standing orders for the procedure to be followed under Sections 41 and 41A to avoid unwarranted arrests. It directed high courts to identify undertrials who are unable to comply with bail conditions and take action to facilitate their release.

In the United Kingdom, the Bail Act of 1976 governs the procedure for granting or denying bail. It recognizes
a “general right” to bail and aims to reduce the number of inmates to prevent the clogging of jails. It says an accused should be granted bail unless there is a justified reason to refuse it. Bail can be rejected if the court finds substantial grounds for believing that the defendant will fail to surrender, commit an offense, or interfere with witnesses if released on bail. The court must give reasons if it withholds or alters bail conditions.

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