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Supreme Court in Satender Kumar Antil vs CBI laid down fresh guidelines on arrests in order to have strict compliance with the provisions of Section 41 and 41A of the Code of Criminal Procedure, 1973
The Supreme Court also emphasised upon separate legislation on the law relating to bail and has also issued specific directions in this regard.
How is a person arrested?
- Arrest in its simplest form is defined as, “when one is taken and restrained from his liberty”.
- The police have wide powers to arrest under the Code of Criminal Procedure, 1973.
What are Sections 41 and 41A of the Code of Criminal Procedure?
- Section 41 of the Code provides for the circumstances in which an arrest can be made by the police without a warrant and mandates for reasons to be recorded in writing for every arrest and non-arrest.
- Section 41A of the Code provides for the requirement of a notice to be sent by the investigating agencies before making an arrest in certain conditions prescribed by the Code
Court guidelines on Arrest?
- The Court stated that lapses on the part of the agencies had to be brought to the notice of the higher authorities by the court followed by appropriate action.
- The Bench further said that the courts will have to satisfy themselves on the compliance of Section 41 and 41A.
- Any non-compliance would entitle the accused to a grant of bail.
What is a Bail?
- Bail is referred to as the temporary release of the accused in a criminal case in which the court has a trial pending and is yet to announce the judgement.
- Types of Bail in India
- Regular Bail:
- This kind of bail is granted to the person who has been arrested or is in police custody.
- It is filed under sections 437 and 439 of CrPC.
- Interim Bail:
- This is short-term bail granted for a short period of time.
- It is granted before the hearing for the grant of normal or anticipatory bail.
- Anticipatory Bail:
- Anticipatory bail falls under section 438 of CrPC by the session court or the high court.
- A person can apply for anticipatory bail when an individual finds out that he could be arrested for a non-bailable offence.
- Usually, such situations arise when business rivals and people try to frame false cases against their competitors.
- Indian Bail Laws
- Section 436-450 of the CrPC deals with the procedures regarding bail in India and includes the provisions for the grant of bail.
- The CrPC does not define the term bail, instead classifying offences under the Indian Penal Code as ‘bailable’ or ‘non-bailable.‘
- Bailable offence
- The CrPC gives magistrates the authority to grant bail for bailable offences.
- Here bail can be claimed by the accused as a matter of his right.
- Non-bailable offence
- Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant.
- In such cases, a magistrate would determine if the accused is fit to be released on bail.
- Regular Bail:
Courts guidelines on Bail
- Separate law for Bail:
- The Court underlined that despite subsequent amendments, the CrPC has largely retained its original structure created by the colonial power.
- The Court pointed out that the code did not address arrest as a fundamental liberty issue.
- It also highlighted that magistrates do not necessarily exercise their discretionary powers uniformly.
- “Such an action, despite being a judicial one, would be a grave act of disrespect to Articles 14 and 15 of the Indian Constitution,” the Court stated.
- The court’s solution to this is the framing of a separate law that deals with the grant of bail.
- Bail application
- Bail applications under Sections 88, 170, 204, and 209 of the Code deal with various stages of a trial where a magistrate can decide whether or not to release an accused.
- These range from power of the magistrate to take bond for appearance (Section 88), to power to issue summons (Section 204).
- Court held that there need not be any insistence of a bail application while considering the application under these sections.
Content Source: The Hindu