Reporting By: Amit Kashyap
The division bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh has asked the Government of India to consider the introduction of an Act specifically meant for granting of bail, as done in various other countries like the United Kingdom.
The Court took note of the statistics that show that jails in India are flooded with undertrial prisoners with more than 2/3rd of the inmates of the prisons constituting undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Statistics also show that more than 1000 children are living in prisons along with their mothers. Granting bail in such cases is not only in the interest of the accused, but also the children who are not expected to get exposed to the prisons.
The Court also noted that the rate of conviction in criminal cases in India is abysmally low and 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 observed that the Jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail.
Hence, taking note of the aforementioned considerations and the number of special leave petitions pertaining to different offenses, particularly on the rejection of bail applications, being filed before it, despite various directions issued from time to time, the Court suggested that Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.
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Judgements In Criminal Law 