Law com­mis­sion pro­poses amend­ments to pro­vi­sions re­lat­ing to bail

Libertatem Magazine - - Contents - Swar­nalee Hal­dar

The Law Com­mis­sion has sug­gested the need for a com­plete over­haul in the man­ner bails are granted by the court. In its Re­port sub­mit­ted to the Govern­ment, headed by the Com­mis­sion headed by Jus­tice BS Chouhan the com­mis­sion made rec­om­men­da­tions propos­ing amend­ments in the Crim­i­nal Pro­ce­dure Code. The Com­mis­sion stated that the ex­ist­ing sys­tem of bail in In­dia is in­ad­e­quate and in­ef­fi­cient to ac­com­plish its pur­pose.

Some of the ma­jor sug­ges­tions are-

1. 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.

2. Sec­tion 437A of CR.P.C was in­serted in 2009, in view of the rec­om­men­da­tions of the Law Com­mis­sion made in 1996. This was done to give ef­fect to the judg­ment of the Gu­jarat High Court in Harish Lax­man Solanki of 1994. The said judg­ment was over ruled by the Full Bench of the Gu­jarat High Court in Omprakash Tekc­hand Batra vide judg­ment dated 14.08.1998. The Full Bench had held that im­pos­ing such con­di­tions in ex­er­cise of s. 482 CR.P.C. was un­con­sti­tu­tional, il­le­gal and void ab ini­tio. The pro­vi­sio s.437a, was in­serted with­out tak­ing note of the Full Bench Judg­ment. The Allahabad High Court in Nannu’s case dated 13.02.2012, has made sug­ges­tions for tak­ing only per­sonal bond of the per­son ac­quit­ted of all the charges, giv­ing un­der­tak­ing to ap­pear be­fore the higher Court, if so re­quired. The Com­mis­sion rec­om­mends the sub­sti­tu­tion of the said pro­vi­sion by pro­vid­ing that af­ter ac­quit­tal of all charges lev­eled against a per­son, his per­sonal bond be taken which will serve the pur­pose. Im­pos­ing any other con­di­tion may be vi­ola­tive of his con­sti­tu­tional and le­gal rights.

3. In case where the ac­cused is granted bail and is not able to furnish sureties within a pe­riod of thirty days and moves an ap­pli­ca­tion for vary­ing the bail con­di­tions, the court would hear the ap­pli­ca­tion and pass an ap­pro­pri­ate or­der. It is fur­ther rec­om­mended that the Court should not in­sist for giv­ing lo­cal surety. Out­side surety, may be ac­cepted af­ter ver­i­fi­ca­tion of his an­tecedents and ve­rac­ity of dec­la­ra­tion so made through the in­ves­ti­gat­ing of­fi­cer.

4. The ac­tual pe­riod avail­able for in­ves­ti­ga­tion has to be taken into con­sid­er­a­tion ex­clud­ing the pe­riod of hospi­tal­iza­tion etc.

5. When a per­son is ar­rested with­out a war­rant, he would be in­formed by the ar­rest­ing of­fi­cer that he is en­ti­tled to free le­gal aid and may move an ap­pli­ca­tion for bail, orally as well as in writ­ing (as far as pos­si­ble), in the lan­guage he un­der­stands.

6. In a case of de­fault bail, if the ac­cused is not able to furnish surety within seven days, the Court, on his ap­pli­ca­tion may vary the con­di­tions of bail ....

7. The law panel has also taken into con­sid­er­a­tion the fact that poor peo­ple of­ten face prob­lems with the pay­ment of surety. Hence, it has rec­om­mended that in case an ac­cused is granted bail but is not able to furnish sureties within 30 days and moves an ap­pli­ca­tion for vary­ing the bail con­di­tions, the court would hear the case ac­cord­ingly. The com­mis­sion has also kept the door open for the ac­cep­tance of non-lo­cal surety af­ter in­ves­ti­ga­tion by the in­ves­ti­gat­ing of­fi­cer.

8. Bail ap­pli­ca­tions should be de­cided by sub­or­di­nate courts within a week and high courts shall frame the rules ac­cord­ingly.

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