Revamping Bail System – 268th Report of the Law Commission of India on Bail Reforms

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Title of Report – “Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail”

Chairman – Dr. Justice BS Chauhan (Former Judge, Supreme Court of India)

The necessity of reforms  

“Societal contexts, its relations, changing pattern of crimes, arbitrariness in exercising judicial discretion while granting bail are compelling reasons to examine the issue of bail and to chart a roadmap for further reform”, observed commission. It indicated that overcrowding of prisons may be due to inconsistency in the bail system. 67% prison population is comprised of undertrials.

Important proposed amendments are:

i. In Section 2(a) it proposes to do away with a very generic definition of bailable offence and non-bailable offence with the reference to indication to schedule 1 and substitute with a more articulate definition of bail.

ii. Since u/s 41 police officers enjoy the vast power to arrest a person. The commission in order to maintain a balance between an individual liberty and societal interests suggested that arrest without strict compliance to provision should entitle a person to get bail. Duty has been cast on the magistrate to ensure such compliance. Further, disciplinary enquiry against the erring officials has been proposed.

iii. The requirement of financial obligations, either through the execution of a personal monetary bond, or through sureties should be the last resort when no other method is likely to work. In determining the conditions of bail, the Court should take into account the financial status of the person accused of an offence, and shall ensure that the conditions of bail are not excessive or unduly onerous. Sureties should not be rejected solely on the ground that they are not locally situated.

iv. Amendment to schedule I –  Recommendation has been made that there should be consistency between the term of imprisonment for offences and their classification as Bailable or Non-Bailable.

v. Amendment to S. 438 relating to anticipatory bail –  It is recommended by the commission that the anticipatory bail must not only be granted with caution but must also be made operative for a limited period of time. Further, given the special position that s. 438 of Cr.P.C enjoys in the Code and the potential for misuse, any order passed under this section must be accompanied by reasons for rejecting or granting anticipatory bail.

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vi. Bail in economic offences – All forms of economic offences which include tax evasion, customs offences or bank fraud should be dealt with strictly and provision for restricted bail in such offences should be incorporated in the Criminal Procedure code or appropriate special statutes for the purpose of granting or refusing bail.

v. Bail in Special laws – It has been suggested that in terrorism laws, NDPS law etc., there should be a stricter scrutiny in granting the bail and only in exceptional cases bail should be granted.

vi. The introduction of electronic monitoring system like electronic tagging. Such monitoring must be used only in the grave and heinous crimes, where the accused person has a prior conviction for similar offences.

vii. Victim-oriented approach – One of the principles that should govern bail is ‘the treatment of victims’ especially where a victim who is known to have expressed concern about the need for protection from an offender should be told about the offender’s impending release from custody. Commission suggested that in certain heinous and grave offences the Prosecutor may be required, after consulting the victim, submit a ‘Victim Impact Assessment’ report wherein any concerns of the victim along with the information on physical, mental, social impact of the crime and the impact bail may have on the victim may be briefly stated. Checklist model as prevalent in UK is also advised to be adopted.

viii. Commission recommended that the risk assessment may be done by balancing the pros and cons of granting the bail.

Access the original report here.

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