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PROVISIONS RELATED TO ARREST AND BAIL UNDER CRPC (Part2)

July 8, 2021/in Criminal, Legal Awareness, Publications /by Chandni Joshi

PROVISIONS RELATED TO ARREST AND BAIL UNDER CRPC (Part2)

Bail under Section 436 of the Code

Sub-section (1): This section applies to only persons who are accused of committing a bailable offence. The presence of the word shall connote that it is mandatory that the person be let such a person out on bail. It is required that such a person seeking bail shall bring two persons as sureties and pay an amount as a bond. This is done to ensure such a persons’ appearance in court during his/her trial.

However, if such a person is unable to pay the specified sum of money or bring the sureties, bail will not be rejected. Such a person is termed as an indigent person. A person is said to be indigent when he is unable to give bail within a week of his arrest. The word appears in this section also includes a person who has voluntarily produced himself/herself before the court or police where no warrant or summons was issued. In Dharmu Naik v. Rabindranath Acharya, it was held that refusal to grant bail in contravention of this section will make the detention illegal and the police officer causing such detention may be held guilty of wrongful confinement under Section 342 of the Indian Penal Code. All you need to know about Preventive Arrest Laws in India - iPleaders

Sub-section (2): According to this subsection, if a person does not comply with the conditions of the bail-bond, the court can re-arrest such a person or issue a summons or a warrant. In Mohd. Shahabuddin v. State of Bihar, it was held that under no circumstances should the person be detained beyond the maximum period stated for the offence except when the delay is caused by the accused person itself.

Lastly, if the person accused is in detention for one half of the actual of his maximum punishment, the magistrate is to call upon the prosecution and hear their sides and on recording their reasons, either continue such a detention or release the person.

Bail under Section 437 of the code

When the offence committed is a non-bailable offence, it is upon the discretion of the Court and Police officer whether to grant bail or not. This Section deals with bails for non-bailable offences. The word may in this section connotes a certain level of discretion upon the court or the police officer granting such a bail.

The discretion which is applied should be exercised according to certain rules and principles as laid down by the code and also in line with Judicial decisions. There is no fixed rule which the court uses to determine their discretion. However, the probability of granting bail is inversely proportional to the gravity of the offence committed.

Discretion when applied to a court of justice, means sound discretion guided by law, it must be governed by law not humor and should not be arbitrary, vague and fanciful.

It is important to note that the object of detention during the criminal proceedings is not to punish the accused.

Following are a few accepted factors which the court take into consideration while granting bail in case of non-bailable offences:

The severity of the punishment upon conviction,
Danger of the accused absconding if granted bail,
Probability of the accused tampering with witnesses and evidence if granted bail,
The health, age and sex of the accused seeking such bail,
The probability of the person committing more offences if released on bail, etc.

The above list is not at all exhaustive and the discretion varies from case to case. In Shahnawaz v. State of U.P, it was held that if a bail is granted to an accused by a bench then, another bench is not bound to grant bail to another similarly placed accused.

Subclause (3) states that the court can lay down certain conditions while granting bail to the accused which have to be strictly adhered to. These conditions can be imposed only by the Court and not by the police. It is important that such conditions are reasonable in nature. The conditions imposed should be such that are linked with the preventing the escape of the accused or preventing the accused from committing any further crime or such a condition in the interest of Justice.

In Mukeshbhai Nanubhai Patel v. State of Gujarat, the order of the Sessions Court granting bail on the condition that the accused should pay a certain amount, per month till the end of the proceedings was held incorrect. Further, seizure of passport and order to return dowry articles as a condition for grant of anticipatory bail was held to be incorrect by the Court.

Sub-clause (4) states that any officer or court releasing any person in a non-bailable offence is mandatorily required to record in writing the reasons for doing so. It has been held that this requirement helps the High Court or Court of Sessions to ascertain the correctness of such an order.

While releasing a person on bail there is always going to be a conflict between personal liberty of the accused and the societal interest at large. In Meenu Dewan v. State, it was held that, if the offence is of such a nature that affects the vital interest of the society and has adverse effects on social and family life of victims then, bail would not be granted.

Bail under Section 439 of Cr. P.C.

A person can move to the High Court or the Sessions Court to apply for bail under this Section only when he is in custody. In Naresh Kumar Yadav v. Ravindra Kumar, it has been held that a person is said to be in custody, within the meaning of this section only when he is in duress either because he/she is held by the investigation agency or other police or allied authority or is under the control of the court having been remanded by Judicial order, or having presented himself/herself to the court’s jurisdiction and submitted to its orders by physical presence.

The discretion granted to the High Court to grant bail is very wide and remains unfettered by Section 437 of the Code.

In Sanjay Chandra v. CBI, the followed points were clarified by the Supreme Court,

An accused is detained in custody not because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried and because the detention is necessary to ensure his presence during trial.

While granting bail, three main elements are necessary to be considered, the charge, the nature of the evidence by which it is supported and the punishment to which the party will be liable if convicted.

Bail discretion, on the basis of evidence about the criminal record of the defendant is also of an exercise of relevance.

A person acquitted by the lower court for a grave offence, applying for bail at the High court will have a greater chance of getting bail as his chances of jumping the gauntlet of justice is much lesser as he already has confidence because of being acquitted once.

If the trial is to take a long period of time, it is not in the interest of justice that the accused are in jail for an indefinite period.

The accused should not be denied bail merely because of the sentiments of the community against bail. According to the law, the accused is innocent until he is proven guilty.

In A.K Gopalan v. State of Madras, it was held that the liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

While granting bail there is always going to be a conflict between the personal liberty of the accused which is his Fundamental Right under Article 21 versus the society being exposed to the misadventures of a person alleged to have committed a crime. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have.

Further, it has been held in Siddharam Satligappa Mhetre v. State of Maharashtra it was held, just as liberty is precious to an individual, is the interest of the society with respect to maintenance of peace, law and order. Both are equally important.

In State of U.P v. Amarmani Tripathi it was held that the following matters are to be considered while granting bail:

Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence.

Nature and gravity of the charge

Severity of the punishment if convicted.

Danger of the accused absconding and fleeing if released on bail.

Likelihood of the offence being repeated by the accused if released on bail and

Reasonable apprehension of the witnesses being tampered with if the accused is granted bail.

In Sundeep Kumar Bafna v. State of Maharashtra, it was discussed, For the application of this section, it is necessary that the person seeking bail is in custody. Custody under this section includes when a person is arrested by the police, brought before a magistrate or when the magistrate orders remand to judicial or other custody. It is important to note that a person is said to be in (Judicial) custody even when he/she surrenders in court and submits to its direction.

Further, it was held that, if the magistrate disallows bail, the accused can move the Court of Sessions for the same. There is no such provision in the Code that prohibits a High Court from hearing a bail application and subsequently granting bail provided such a person is in custody.

Bail under Section 389 of the Code

This section can be invoked for granting bail under three circumstances: The person seeking for release of bail is already convicted for an offence, The person is in confinement and Such a person’s appeal against the conviction is pending.

This section is wide enough to include the hearing of the appeal seeking bail of a person who is convicted for an offence, punishment is life imprisonment or death. If the court accepts such an appeal and releases such a person, the prosecution is entitled to file an application for the cancellation of such a bail.

In Manu Sharma v. State (NCT of Delhi), it was held that while applying its discretion to hear such an appeal for bail, the court should inter alia consider the following things:

Whether prima facie ground is disclosed for substantial doubt about the conviction and
Whether there is any likelihood of unreasonable delay in the disposal of such an appeal.

An important feature of this section is that while exercising its power under this section, the appellate court can suspend the execution of the sentence as well as the conviction pending an appeal preferred by a convicted person, Held in V. Sundarami Reddy v. State. In addition to this, in Gopal v. State of M.P, it was held that the application for bail and the suspension of sentence under Section 389 is a class by itself maintainable only in a pending appeal. This is an essential component of the appeal.

The time taken by a court to dispose-off a case has to also be taken into consideration while granting bail. In Jadeja Ajitsinh Natubha v. State of Gujarat, it was held that as long as the appellate court is not in a position to hear the appeal of the accused regarding bail, within a reasonable timeframe, the court should, in the normal course release the accused on bail unless there are other valid reasons for doing otherwise. However, in Rabindra Nath Singh v. Rajesh Ranjan, it was held that the delay in hearing the appeal by itself is not a sufficient ground to grant bail.

In Khilari v State of U.P, it was held that irrespective whether the offence is bailable or non bailable, the discretion of releasing the person on bail lies in the discretion of the appellate court and this discretion is to be exercised judicially. Further, the appellate court is required to record the reasons for bail.

Bail under Section 395 of the Code

This section shall be invoked when there is a question of the Constitutional validity of any Act, regulation or Ordinance. A mere plea raised by a party challenging the validity of an act is insufficient for invoking this section and making a reference to the High Court. There should be a valid, substantial ground that challenges the validity of any Act for invoking this section. Before a lower court makes a reference to the High Court under this Section, it is required to record its reasons for doing so.

In line with this Section, Article 228 of the Constitution of India also empowers the High Court to withdraw a particular case from the subordinate court and take authority of such a case and dispose of it after hearing it.

Sub-section (2) of this Section specifies that only the Court of Sessions or the Metropolitan Magistrate have the power to make a reference to the High Court. Further, in Emperor v. Molla Fuzla Karim, it was held that such a reference can be made to the High Court only when there is a question of law and not of fact.

Section 397 of the Code

Under this section, the High Court or the Court of Sessions may call upon for the record of any proceedings before any inferior criminal court for the purpose of examining and satisfying itself as to the correctness and legality of any order passed by such an inferior court. The inferior court should be within the jurisdiction of the High Court.

In Purshottam v. State, it was held that the object of revisional jurisdiction is to confer upon the superior Criminal Courts a kind of supervisory jurisdiction. In case the superior court finds any flaw in the legality or correctness of the order passed by an inferior court within its jurisdiction, Sections 398 to 401 empower the Superior courts to pass an order correcting such flaws.

For the purpose of this section, the High Court is superior to the Court of Sessions. Hence, the High Court is empowered to call upon the records of any proceedings which were conducted In the Court of Sessions. However, in Ismat Sara v. State of Karnataka, it was held, that a magistrate holding an enquiry under section 176 of the code does not function as a Criminal Court and hence, the records of such an enquiry cannot be called upon by the High Court for the purpose of re-examination under Section 397.

Sub-section (2) of the Code disallows the practice of revisional power in relation to any interlocutory order passed in any appeal, inquiry or trial. This is done with the object of speeding up the disposal of criminal cases.

In K. Sudhakaran v. State of Kerala, it was held that revision petitions against interlocutory orders would not only delay justice but also at times defeat it. Interlocutory order has not been defined by the Code. In the normal course, interlocutory order is an order which is passed at some intermediate stage of a proceeding to advance the cause of justice with respect to the final determination of the rights between the parties.

Bail under Section 360 of the Code

This section is a piece of beneficent legislation as it empowers the court to release an accused who has been convicted on the basis of good conduct under certain circumstances. The object of this section is to avoid sending the first offender to prison for an offence which is not of a serious nature. This enables a hope of reducing the risk of turning such an offender into a regular criminal.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a Magistrate of the second class specially empowered by the State Government in this behalf, to release a convicted offender on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Magistrate may direct, and in the meantime to keep the peace and be of good behaviour.

The Magistrate thus has discretion either to punish the offender with imprisonment or release him on probation of good conduct. This section tries to reform the criminals by treating them leniently only in those cases where there is no serious danger or threat to the society.

In Hari Singh v. Sukhbir Singh, the learned judge held, the court is to use this discretion in respect to probation judicially, and having regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. The main of this section is to prevent youngsters from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime and further ruin their life due to bad influence, who may have committed the crime through ignorance or inadvertence, held in Jamal Haq v. State of Tripura

Probation cannot be claimed as a matter of right. This provision lays a discretion upon the Court as to whether to grant probation or not. It is important to note that even if all the conditions as specified under sub-section (3) are fulfilled the convict cannot claim probation as a matter of right.

Anticipatory Bails

The Code of Criminal Procedure (1898) did not contain any specific provision of anticipatory bail. The Law Commission of India, in its 41st Report dated September 24th 1969 pointed out the necessity of introducing a provision in the code of Criminal Procedure enabling the High Court and the Court of Sessions to grant Anticipatory bail.

The necessity of granting anticipatory bail arises mainly because of two reasons:

Sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing or for other mala fide intentions by getting them detained in jail for some days.

Where the likelihood of the person absconding or misusing the liberty is very insignificant.

The Indian Penal Code and Code of Criminal Procedure operates on the premise of innocent until guilty. Hence, unless there is a very strong reason to detain the person in jail before the actual conviction such a person is not detained.

Section 438 lays down the procedure for anticipatory bail. When an order of Anticipatory bail is passed by the court, what happens is that in the event of arrest at a future date, the person will be granted bail. In other words, it is a bail in the anticipation of an arrest in the near future. This section can be invoked only before the person is arrested. For invoking this section, there should be a strong belief that the said person is going to be arrested.

The belief of such a person should be on tangible grounds. This section can be invoked not only when the arrest is apprehended at the hands of the police but also when the arrest is apprehended at the instance of the magistrate. Anticipatory bail can be issued only by passing an interim order. It is mandatory for the person applying for anticipatory bail to be present in court during the final hearing of the application.

According to the Law Commission Report (41st Law Commission Report, page 321), it was stated that the need for this provision is that sometimes it is possible that influential persons with their power would try to fraudulently implicate any person in false causes to disgrace them or for malice by getting them detained in jail. This section works as a shield for such persons who are likely to be detained.

Sub-clause (2) of this section uses the words as it may think fit implying that the judges have a wide discretion with respect to granting anticipatory bail. According to the 48th Law Commission Report (page 10), it has been stated that the directions can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary for the interest of justice.

Initially, in the general course, an application for anticipatory bail had to be first filed In the court of Sessions and then the High Court. However, in Chendrasekhar Rao v. Y.V Kamala kumari it was clarified that an application under Section 438 could be pleaded directly in the High Court, without taking recourse to the Court of Sessions.

Section 438 has a very wide scope. If the offence is non-bailable it is immaterial whether the offence is cognizable or non-cognizable. Further, in B. Kuppa Naidu v. State an anticipatory bail was granted to a person who was accused of committing an offence under the Custom Laws. This shows the wide scope of this Section that it can be invoked not only for offences under the IPC but other codes too. Anticipatory bail can even be granted to a person who is accused of committing a crime has punishment is that of life imprisonment or death.

Gurbaksh Singh Sibbia v. State of Punjab is a landmark case with respect to anticipatory judgement. A constitution bench had passed this judgement.

Following are the pointers of this case:

The difference between a normal bail and an anticipatory bail – The normal bail is granted after the arrest whereas, an anticipatory bail is granted before the arrest. Anticipatory bail is granted in anticipation of an arrest.

There is no restriction on granting anticipatory bail merely because the alleged offence is punishable with imprisonment for life or death.

The imminence of a likely arrest founded on a reasonable belief can be shown to exist even when a FIR is not yet filed. Which is to say that the registration of an FIR is not a condition precedent for applying for anticipatory bail.

Mere fear of being arrested is not a sufficient ground for invoking this section. There have to be substantive grounds.

It is true that the discretion to grant anticipatory bail is to be exercised with care and circumspection. However, it is not true to say that this power to grant anticipatory bail should be exercised only in exceptional cases.

The limitations imposed in Section 437 on granting of bail is not completely implicit in Section 438.

The High court or Sessions Court cannot leave the question behind with respect to anticipatory bail for the decision of the magistrate under Section 437. The High Court must use its own mind to check whether a case has been made out for granting such relief.

Considering the antecedents of the accused, if it appears that he will take advantage of the anticipatory bail and flee from justice, the judge would not pass the order.

In Masroor v. State of U.P, it was held that even though the judges have a wide discretion to grant anticipatory bail, if they do grant, they should mandatorily record the reasons for doing so. The conditions mentioned in sub-section (2) are not exhaustive and the courts may impose other conditions too.

The duration of the effectiveness of the anticipatory bail is not mentioned in this section. As soon as the person is enlarged on bail on the directions of the Anticipatory bail order, it would be deemed by implication that the bail was granted under Section 437.

However, in C.H Siva Prasad v. State of A.P, it was held that the bail shall be effective until the conclusion of the trial, unless it is cancelled by the court taking action under section 437(5) or under Section 439(2) of the code on the grounds known to law and filing of Challan in the court is by itself no ground to cancel the bail.

In Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676, Karnataka High Court observed, A reading of the entire Chapter which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. After all, the object of granting bail is to see that the liberty of an individual is extended. Of course, when an accusation is made against a person, in the event of his release, it is the duty of the Court to see that the interest of the State and the public is safeguarded. For that purpose, the Court is empowered to insist upon the appearance of the accused whenever so required either by the Police or Court either for investigation or to take up trial. During this period the Court can also warn the accused of his activities or movements in any way causing a fear or resulting in tampering with the prosecution evidence.

While the Court exercises its discretion, whether it is under S. 437 or 438 or 439, it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise discretion. Merely because, norms are not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 that does not mean the discretion shall be left to the whims of the Court. Guiding principle shall be as indicated earlier with sound reasoning and in no way opposed to any other law. The Legislature has given this discretion to the Court keeping full faith in the system of administration of justice. While administering justice; it is the duty of the Court to see that any order to be passed or conditions to be imposed shall always be in the interest of both the accused and the State. The conditions shall not be capricious. On the other hand, it shall be in the aid of giving effect to the very object behind the discretion.

Difference between bailable and non-bailable offence

Non-bailable

If the offence committed is non-bailable, the police officer cannot himself grant bail to the accused. Only the magistrate can authorize the bail in a non-bailable offence. An offence is said to be non bailable and when the punishment for it is more than 3 years. It is to be noted that just because the offence is non-bailable does not mean that the person accused will not be granted bail at all. In such cases it is up to the discretion of the court as to whether to grant bail or not.

Bailable

In a bailable offence, the police officer in charge has the power to grant bail to the person accused. An offence is said to be bailable when the punishment for that offence is less than 3 years. It is the right of the accused to be released on bail in a bailable offence. This right is subject to certain conditions which will be discussed later in this paper.

CONCLUSION

An arrest of a person is a procedure where the liberty of a person is restrained to apprehend him for the commission of a crime. This may also be done in case of suspicion so that the alleged offender could be presented in court. It is important to arrest lawbreakers to ensure peace, law and order in the society. Usually, it is the police which arrests a person but in certain situations, private persons or a Magistrate are also empowered to arrest a person. The Magistrate has the power to order the arrest of a person and under certain situations also order the custody of such a person. Whereas a private person shall hand over the person arrested to the police or nearest police station as soon as possible. He shall take into consideration various factors before arresting an offender as it could be dangerous. Further, after the arrest of the person, the private person should follow the necessary protocol. They need to have a presence of mind as they are not trained to deal with such situations. Although it is dangerous for private persons to arrest offenders, they can do a commendable job by stopping an offender from getting away before the arrival of the police.

Bail is an important check and balance to ensure that no innocent person is punished until proven guilty. But the complicated system of bail in the country’s criminal law system often fails to appreciate it. Grant or refusal of bail depends on factors that are remotely connected with the merit of the case. The recommendations of the Law Commission in its 268th report on bail reforms are important and they should be implemented so that a fair and transparent system of bail evolves in our criminal law system. This would go a long way in upholding the rights of life and liberty enshrined in the Indian Constitution.

PROVISIONS RELATED TO ARREST UNDER CRPC (Part1)

June 20, 2021/in Criminal, Legal Awareness, Publications /by Chandni Joshi

PROVISIONS RELATED TO ARREST UNDER CRPC (Part 1)

Introduction

An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.

The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what an arrest constitutes can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.

All you need to know about Preventive Arrest Laws in India - iPleaders If broadly characterized arrest is of two types-

Arrest made in pursuance with a warrant issued by the magistrate.
Arrest made without any warrant but within the established legal provisions.

Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

Section 41 says the police officer has to be satisfied that such arrest is necessary:

To prevent such person from further committing such offence
For purposes of investigation
Prevent the person from causing evidence to disappear.

If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such an arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property. Section 41(1) of CrPC,1973 explains when a person can be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. Section 41A – gives direction to the police officer to issue a notice to the person if he feels the person is not required to be arrested. This in effect means that contrary to popular perception, a police officer is not required to arrest a person if he does not think such arrest is not required for the purposes mentioned in Section 41 mentioned above.

Section 41B – enjoins that while making an arrest the police officer shall: –

a) bear an accurate, visible, and clear identification of name which will facilitate the identification.
b) prepare a memo of arrest which shall be:
Attested by one family member or member of the society.
counter signed by the accused.
This evidently is in terms of Article 20/21 which insulates a person from

arbitrary arrest.

Section 41-C: When a memo is not attested by a family member, the person so arrested must be informed that he has a right to inform a family member. This once again protects a person from arbitrary arrest and prevents mysterious disappearances.

Section 41-D: The person arrested can meet an advocate of his choice during interrogation. This is once again in line with the constitutional right of a person to counsel, even if it is free.

Arrest on refusal to give name and residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence.

Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.

Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.

Section 42(3) says that if the true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.

Procedure of arrest by a private person

The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.

Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.

Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.

Arrest by magistrate

Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.

Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct any person in his presence, within his local jurisdiction of whom he is competent to arrest at that time and in the circumstances to arrest.

An exception of the Armed forces

The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.

Section 45(1) states that no member of the armed forces can be arrested for anything done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.

Section 45(2) lays out that the State Government may through a notification can direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).

Provisions related to arrest of women

Section 46(1) There should be a female officer to arrest a female.

Section 46(4) prescribes that no women shall be arrested after sunset and before sunrise, unless in exceptional cases, and female officers shall make the arrest in exceptional cases with permission of the Judicial magistrate.

Section 50 enjoins the police officer to inform the arrested person about the grounds of arrest and that he is entitled to the right of bail and he could arrange the sureties.

Section 50(A)(1) makes it obligatory for the police officer making the arrest to

immediately inform the arrestee’s friends, relatives or such other persons about the place

where the arrested person is being detained and inform the arrested person of such

rights. Entries of all the arrests shall be kept at the police station.

Section 50(2) says “the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station”.

Under Section 56, a police officer is to immediately take a person arrested without a warrant before the magistrate having jurisdiction or to the officer in charge of the police station.

Section 57 (A) says that the arrested person shall not be detained for more than 24 hours except the time taken during the journey before the production bef

ore the magistrate.

Section 58 says that the cases of all persons arrested without warrant must be reported to the local DM or SDM.

Under Section 60(A), arrests are to be made strictly according to the code, no arrest shall be made except in accordance with the provisions of the code.

Sec 50 (A)(4) prescribes that it shall be the duty of the magistrate before whom such arrested person is produced to satisfy himself that the requirement of section 50(2) – i.e., that the police had an obligation to inform relatives or such nominated persons where he is being kept in custody and the arrestee had been informed of such an obligation have been complied with.

Section 167 prescribes the procedure after the arrested person is brought before the magistrate. The police officer has to produce the relevant papers, including entries of the case diary. Sub section 3 gives discretion to the magistrate to remand an accused to police custody but only on recording his reasons.

Section 47 of CrPC provides for the search of a place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise.

But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.

Any police officer or person making the arrest is authorised to break open the door in order to liberate himself if he is detained in that process.

Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful.

The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.

Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay (usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC. However, there is a practice of detaining the person in isolation due to Covid -19, and the duration is not calculated towards 24 hours; which in the eyes of the author bad; because if a person is required to be produced before magistrate in 24 hours, then he can be so produced even through video conferencing, without having to produce him personally. Therefore, compromise with the constitutional provisions should not be taken lightly by the courts.

Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.

ARREST WITH WARRANT

Form of warrant of arrest and duration.—

(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

Power to direct security to be taken.—

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.

(2) The endorsement shall state— (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend before the Court.

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.

Warrants to whom directed.—

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

Warrant may be directed to any person.—

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.

RIGHT TO LEGAL REPRESENTATION

The Supreme court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.

Article 22(1) of the Constitution of India states that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Therefore, this mandatory procedural requirement, reiterated by the Supreme Court in the 1997 case of DK Basu v. Union of India, entails that the person arrested has to not only be informed of the grounds of such arrest, but should also be asked by the Magistrate as to whether he/she requires to consult and be defended by his choice of lawyer.

In the 2018 case of Gautam Navlakha v. State (NCT of Delhi), it had been submitted by the State the “seriousness of the offence and the urgency of the situation” may lead to overlooking the requirements of law in letter and spirit. However, the Delhi High Court observed that in such cases, the concerned Magistrate would have to be satisfied with the explanation offered for non-compliance – “the departure from the mandatory requirement of the Constitution and the CrPC ought not to be lightly countenanced”.

Moreover, mere representation by a legal aid lawyer, without ensuring whether the accused had the opportunity to consult a lawyer of her own choice, will not satisfy the requirement of Art 22(1) of the Constitution, the High Court ruled. The Court also held that the mere fact that there was a legal aid lawyer representing the accused will not satisfy the requirement of Article 22(1), if it was not an effective representation. The Court noted that the legal aid lawyer in that case had not made any submissions before the Magistrate issued the transit remand order, and therefore the representation was merely “cosmetic”.

Two paragraphs from the judgment are worthy of being quoted here : “Turning to the order dated 28thAugust 2018 of the learned CMM in the present case, the Court finds that a duty lawyer empanelled pursuant to the Scheme of the National Legal Services Authority (“NALSA‟), the statutory body under the Legal Services Authorities Act, 1987(LSAA), was shown representing the person arrested, i.e., the present Petitioner. However, the Magistrate does not appear to have asked the arrested person, as mandated by Article 22 (1) of the Constitution, whether he was informed about the grounds of arrest and whether he wishes to consult and be defended by a legal practitioner of his choice. This requirement does not get diluted one bit only because the proceedings are for transit remand”. “There is no mention of the legal aid lawyer having made any submission whatsoever. The learned CMM did not even think it necessary to record any such submission. It thus appears to the Court that the appearance of the Duty lawyer for the Petitioner was cosmetic and not in the true spirit of Article 22(1) of the Constitution read with Section 12 (g) of the LSA which guarantees free legal aid to every person in custody.

GUIDELINES FOR INTER-STATE ARREST

In Sandeep Kumar v State, a division bench of Justices Dr S Muralidhar and Talwant Singh of the Delhi High Court had also directed for the implementation of guidelines that had been proposed by the Committee and pertained to protocol that must be followed by the police in the event of inter-state investigation or arrest. Relying on Sections 48, 77, 79 and 80 of the CrPC,

The guidelines stated the following guidelines for inter-state arrest:

The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit another State without getting arrest/search warrants.
Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
If the possible arrestee is a female, a lady police officer will be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and cooperation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down, u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim’s name can also be indicated.
Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314).
Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon’ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
In terms of S. 41C, control rooms are established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. The Control Room at State level must collect details of the persons so arrested.
The police officer must record all the proceedings conducted by him at the spot and prepare an ‘arrest memo’ indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family members would be able to arrange legal assistance for him.
The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in a police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
On arrival at the police station, the police officer must make an entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-de belief. He cannot take shelter under another person’s belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-de. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicles should be used for transportation to the extent possible.
At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is an adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
In cases where the police officer finds the victim/prosecutrix to be a ‘minor’, soon after recovery, she should be produced before the local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
The MHA/State Government should circulate the Rules/Guidelines/Notifications etc. from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability.
If, in case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted.

Glimpse of NDPS Act 1985

June 5, 2021/in Criminal, Legal Awareness, Publications /by Chandni Joshi

Glimpse of NDPS Act 1985

Introduction

The legislative regulation over narcotic drugs was earlier being exercised under The opium Act 1852, The opium Act 1878 and the Hazardous Drugs Act 1930. Owing to the passage of time and changes in the field of illegal drug trafficking and substance addiction at national and international level, the provisions of these enactments were found to be insufficient.

What is the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act of 1985?

Purpose behind this Act

The punishment under the previous acts was not deterrent enough to meet the challenges of well-organized smuggling gangs. The 1930 Dangerous Drugs Act allows for up to 3 years imprisonment with or without fine and 4 years imprisonment with or without fine for recurring offences.

However, no mandatory penalty was imposed in the past existing rules, as a result of which drug dealers have been let off by nominal punishment. Over the last few years, the nation has been increasingly faced with the issue of drug transit traffic coming mainly from some of our neighboring countries and heading mainly to Western countries.

Past Existing Central laws did not provide for investing the officers of a variety of major Central Compliance agencies, such as Drugs, Customs, Central Excise, etc., with the power to investigate offenses under the said rules.

Since the aforementioned three Core Acts were passed, a large body of narcotics-controlled international law has evolved through numerous international treaties and protocols. The Government of India has been a party to entail treaties and conventions that include numerous commitments that are not protected or only partly covered by the preceding acts.

In view of all the above limitations, need of comprehensive legislation for the regulation of narcotic drugs and psychotropic substances was felt and demanded that penalties for trafficking in particular should be significantly increased, confiscation of properties originating from or used in illegal drug and psychotropic drug trafficking should be ensured, stringent provisions should be made for effective regulation of psychotropic substances and provisions should be made for the enforcement of international conventions on narcotic drugs and psychotropic substances.

As a consequence, the bill was passed in the parliament and therefore the Narcotic Drugs and Psychotropic Substances Act 1985 was enforced.

A comprehensive legislation was necessary to reform and update previous laws relating to narcotic drugs. Accordingly, the parliament adopted the Narcotic Drugs and Psychotropic Substances Bill. It was passed in Lok Sabha on 23rd august 1985 and was enacted on 14th November 1985. The act has been amended 3 times till now in 1988, 2001 and 2014.

The term ‘narcotic’ in the legal sense is quite different from that used in the medical context which denotes a sleep inducing agent.

Legally, a narcotic drug could be an opiate (a true narcotic), cannabis (a non-narcotic) or cocaine (the very antithesis of a narcotic, since it is a stimulant).

The term ‘psychotropic substance’ denotes mind-altering drugs such as Lysergic Acid Diethylamide (LSD), Phencyclidine, Amphetamines, Barbiturates, Methaqualone, and designer drugs (MDMA, DMT, etc.).

Classification of Drugs.

Cannabis

Section 2 of the NDPS ACT, explains cannabis (hemp) and is defined as:

Charas – a separated resin, in whatever form, whether crude or purified; obtained from the cannabis plant, which also includes the concentrated preparation and resin known as hashish oil or liquid hashish;

Ganja – the flowering or fruiting tops of the cannabis plant, (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom; for example – Bhang.

‘Cannabis plant’

means any plant of the genus Cannabis.

Narcotic Drugs

means coca leaf, cannabis (hemp), opium poppy straw and including all manufactured drugs;

Manufactured Drugs

Means all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;

any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature, or to a decision, if any, under any International Convention, by notification in the Official Gazette declare to be manufactured drug;

‘Coca’

‘Coca derivative’ means

Crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of coca, Ecgonine and all the derivatives of ecgonine from which it can be recovered. Cocaine, that is, methyl ester of benzoyl-ecgonine and its salts. All preparations contained more than 0.1 percent of cocaine.

‘Coca Leaf’

means:

The leaf of the coca plant except for a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed.

Any mixture thereof with or without any neutral material, but does not include any preparation containing not more than 0.1 per cent of cocaine.

‘Coca Plant’

means the plant of any species of the genus Erythroxylon.

‘Opium’

means:

The coagulated juice of the opium poppy, or simply, Any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine.

‘Opium derivative’

means:

Medicinal opium, that is, opium which has undergone the processes necessary to adapt for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other Pharmacopoeia notified in this behalf by the central government, whether in powdered form or granulated or otherwise or mixed with neutral materials.

Prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked.

‘Opium poppy’

means:

The plant of the species Papaver somniferum L.

The plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the official gazette, declare to be opium poppy for the purposes of this Act.

‘Poppy straw’

means:

all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted there from.

Salient features of the Act

It is applicable to the whole of India, to all the Indians outside India and to all persons on ships and aircrafts registered in India.

An addict means a person is highly dependent on any narcotic drug or psychotropic substances.

cannabis (hemp) means ganja, that is cannabis plant flowering or fruiting tops without seeds and leaves when not accompanied by the tops, under whatever name they may be known or designated.

Even though in certain sections of the Act the term Central Government Factories is mentioned, it has not been defined in the Act until now. It is proposed to define Central Government Factories within the definition of Government Company under the Companies Act, so as to allow the Central Government the flexibility to restructure Government Opium.

The central government under the act is authorized to take necessary steps to prevent and counter substance addiction and illegal trafficking.

According to the act, The Central government is also authorized to constitute an advisory committee called

Section 15 to 20 of the act deals with penalties for the offences under the act.

Punishment is given for any breach of provision in relation to poppy straw, coca plant, coca leaves, prepared opium, opium poppy, cannabis plant and cannabis, manufactured drugs, psychotropic substances etc.

Punishment is also given for illegal import into India or export from India, for violation of orders made under the act, for illegal possession of narcotic drugs or psychotropic substances in small quantities and so on.

Offences under this act shall be cognizable means clearly identifiable and non bailable means serious offences.

Author: Mohit Mathur

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

What is Bail Bond? | Criminal Law

June 4, 2021/in Criminal, Legal Awareness, Publications /by Chandni Joshi

What is Bail Bond?

Introduction

A bail bond is an arrangement made by a convicted suspect to appear for trial or to pay the amount of money set by the judge. The bail bond is co-signed by a bail bondsman, who charges the prisoner a fee in exchange for obtaining the ransom. When someone is charged and booked for a serious crime, they have to wait for a bail hearing. During the hearing, the judge must weigh the charges and circumstances before determining the size of the bond. If the defendant is unable to pay the bail fee, they may either remain in jail until their court date or employ a bail bond agent. The bail bond attorney will charge a percentage of the bail amount as a non-refundable fee and then give bail to the defendant when the bail bond paperwork is done. Provisions for bail in trial court & inherent powers of high court : a webinar brief - iPleaders

The following article deals with the whole process of Bail Bonds and the Role of Bail bond agents with some advantages and disadvantages of this facility provided to the suspects. A remarkable case law issued under the topic of Bail bonds was of Hussainara Khatoon V. State of Bihar, 1979 Where it has been shown that the transgression of justice which might poorly accused little Indian or forced into longer cellular servitude for small offenses because their bail proceedings go beyond their meager means and trials do not begin and even if they never conclude. The Apex court has suggested that instead of money factors, other factors such as family ties, roots in the community, job security, membership for stable organizations etc should determine the grant of bail and in appropriate cases, the accused be released on his personal bond without monetary obligations.

Provisions as to bail bond are provided in chapter 33 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.). Section 440 of the Code clearly states that the amount so fixed by the court should take due regard to the circumstances of the case and should not be excessive. Sessions court and high courts are empowered under this section that they may direct the magistrate or the police officer to reduce the amount of the bail bond.

Section 441 of the Code provides that the offender so released on bail or on his own bond, needs to sign a bond of such money as the police officer or the court deems necessary for ensuring his presence when at the time mentioned in the bond or until any time as directed by the court. Thus, bond provides for a surety of the presence of the offender to the court when called upon either to answer the charge or otherwise. In case where a minor is required to execute a bond, the police officer or the court in lieu may execute it only by surety or sureties only. Bond can contain conditions. Such conditions need to be mentioned in the bond itself while executing it.

The court is empowered to commit the person released on bail to jail in two cases: if the surety or sureties are found to be insufficient or afterwards become insufficient; or of the surety or sureties apply before the court for the direction of discharge of either whole bond or any part as related to the applicants. The court, before committing such person to jail may ask him to find sufficient surety to grant him bail again.

When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond.

The courts have to limit their power where there is only delay in payment to the bail or just because the indemnitor decides not to be responsible for the bail anymore. However, under Section 466 of the Code, the court can forfeit the bail bond on the ground that the condition of production of any property is not fulfilled or if the penalty is not paid without a sufficient cause. Forfeiture here means the retainment of the bond money even after the case is over. In the latter case, if even the surety does not come up for the offender rescue then, the offender may be imprisonment which may extend to 6 months. It also in the discretion of the court to remit any amount of penalty after recording the reasons for doing so and allow the part performance. Further, if the offence for which the offender has furnished security under Sections 106 or 117 or 360 of Cr.P.C. result into conviction of the offender which resultantly breach any condition (such as tampering evidence, commission of any offence, hamper investigation, runs away, commits any act of violence against police) of his bond, the judgement of conviction shall be used against him and his sureties unless the contrary to this proved. Such forfeiture of bond is appealable against as mentioned in Section 449 of the Code. On appellate court has the power to levy such amount due on a bond for appearance before such court.

But what happens after the bond is forfeited? On the event of death of the surety or his becoming insolvent or when any forfeiture is carried out in the above cases, the court shall order such person from whose security was demanded to furnish a fresh security bond failure of which the magistrate of first class may proceed as if there been a default in complying with the original order of bond.

Following any forfeiture of bond in case of any breach of the conditions mentioned in it, result into cancellation of such bond where the alleged offender thereafter cannot seek release on bail on his own bond except when the police officer or the court is of the view that no sufficient cause of failure can arise of the person bound by the bond to comply with its condition.

Above were the provisions of bail bond but what actually happens after an order is passed in this regard? How to execute a bail bond after the passing of such order?

The documents required for practical execution are:

Bail application
Id proof of the person executing it
Id proof of the surety giving guarantee for the person
Demand draft or cheque for the sum to be paid for the bond
Property papers in case a property is being charged for the purpose of furnishing the bail bond and tax return receipts.
Declaration by the surety or sureties
Letter of undertaking

The surety has to provide for an application of undertaking of the bail bond for the offender. He is also having to be certified that he is not insolvent and possess enough property to enable and stand surety. Besides he also has to declare as an indemnitor he has the knowledge of the conditions on which the bail bond is executed and that he provides for the surety of fulfilment of the conditions on behalf the offender. Thus, at the police station, after signing the requisite documents and paying the bond money, the execution of bail is completed.

Advantages

It’s easy to see the negatives when you’re involved in the bail bond process, whether you’re the one who needs to get out of jail or you’re the one who’s helping a loved one out. It’s a terrible situation that nobody wants to be in, so it’s pretty hard to see the light of the situation. A few advantages of issuing bail bonds are that most bail bond companies are open on a daily basis, in fact, on a 24-hour basis. As such, one can obtain bail bonds at any time they need them. With bail bonds, only 10% of the bail amount needs to be paid. The rest is going to be the job of bail bondsman to sort out.

Most of the agents that run bail bond companies are professionals in court cases, prosecution, and bail and bond issues. As such, you will benefit from their vast experience and knowledge. You can pay bail bonds with some kind of payment plan and thus, ease your financial burden when you’ve been arrested. You pay only 10% of the full bail amount, leaving you with 90 percent to save or spend as much as you need. You can pay your small bail bond installments with cash, credit or debit and checks. A secure online payment portal is also available. There is no need to worry about going to the courthouse with a large amount of bail money. You will be assigned a professional and helpful bail agent. They’ll give you advice throughout the entire process and you’ll know exactly what’s going on. Like a lawyer, they want you to get the best result.

Disadvantages

The bail bond system is considered discriminatory by many, even in the legal profession, as it requires low-income defendants to stay in jail or scrap a 10% cash fee and the rest of the bail-in collateral even before they stand trial for any crime. According to a report conducted by prison policy organizations, about 536,000 people are being held in jail because they can’t afford bail or bail bondsman services. At the end of the process, you won’t get the bail bond money. The bondman accepts the 10% premiums as their fees. You can only take advantage of the bail bond company in the state where it is licensed. You may not benefit from this if you are not located within their jurisdiction.

Conclusion

In my opinion, whilst granting bail may also consider the socio-economic factors of the accused flight of the accused may also be taken into account and compassionate attitude towards them, the court may take into account certain conditions prior to granting bail which are the nature of the offense committed by the accused, which are considering, the nature of the offense charged and the apparent likelihood of conviction. It may also include any other factor indicating the relationship of the accused shall be the community or barring the risk of intentional failure to appear, the character and former criminal record of the defendant shall be the determination of the amount of bail in the present case. At the time of bail, the person does not have the right to live outside the jurisdiction of the court, he/she does not have the power to go abroad and in other states without the permission of the court, because you have to appear at the court and police station at any time and you have to pay a fixed deposit in court.

LAW OF DETENTION IN INDIA

May 18, 2021/in Constitutional Law, Criminal, Publications /by Chandni Joshi

LAW OF DETENTION IN INDIA

Detention

Detention is defined as the act of reserving a person or property and, ‘illegal detention’ is the unsubstantiated imprisonment or unlawful deprivation of liberty of an individual by arresting for an illegitimate cause or suspicion, along with continuous restraint on one’s personal liberty by detaining such individual in custody.

A Police officer can detain an individual, if he has reasonable doubt or suspicion that a crime has been or will be committed, or if he reasonably believes that an individual may have information regarding the same, the Police officer may then have the liberty of detaining the individual for a short span of time, in order to investigate into the matter. If an individual is ever detained, the authorities are allowed to

frisk the person for any weapons,
seek information regarding the crime that is believed to occur.

If police officers have probable cause to believe a specific person has committed a crime, he can arrest that person. At that point, he can conduct a complete search for the person for weapons, evidence, and contraband as well as their vehicle if he is or has been near it recently. He can hold that person in jail for 24 hours or until he gets a warrant issued for the charges. If a person is unlawfully detained by the police, the Constitution allows redressal by the filing of a habeas corpus petition under Article 32 or 226. Traditionally, its sole purpose is to have any person under arrest brought to court. Now, if the person has been unlawfully detained, the court can order his release.

Safeguards under Constitution of India

Article 22 of Indian Constitution broadly deals with the rights of a person who has been arrested or detained. The first two clauses deal with the rights of a person who has been arrested for a crime he has already committed. Other clauses are related to the rights and the procedure for the arrest and detention of persons under preventive detention. Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance with which a person is deprived of his personal liberty and thus provides for the protection against illegal arrest and detention.

Clause 1 of Article 22 of Indian Constitution states that a person who has been arrested under normal circumstances (not under preventive detention), has the right to know the charges for which he has been arrested and can be detained further and he can’t be denied off an attorney or a lawyer’s service to represent him in court or to guide him and defend him in the court of law. The concerned authority, like the police or any other government authority, is compelled to tell him this information as soon as possible.

Clause 2 of Article 22 of Indian Constitution states that any person who has been arrested by an authority, must be presented before a magistrate within 24 hours of the arrest. This period of 24 hours doesn’t include the time taken to travel to the court of the magistrate. The person cannot be detained or held in custody for more than twenty four hours. After that, it is with the authority or permission of the magistrate that an agency or government body can extend the period of the detention.

Clause (3) of Article 22 however expressly takes away the safeguards of clauses (1) and (2) of Article 22. It states that:-

(a) This states that the rights mentioned in the first two clauses are not valid for a person who is an “enemy alien”.

(b) This sub-clause states that the rights mentioned in the first two clauses are not applicable to people who have been arrested or detained on the grounds of preventive detention.

Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the mind of an executive authority. Preventive detention is fundamentally different from imprisonment after trial and conviction in a criminal court. In conviction, an accused is sought to be punished for a past act. The offence has to be proved in the court beyond reasonable doubt. In preventive detention a person is detained without trial in the subjective satisfaction of the executive.

Clause 4 of Article 22 of Indian Constitution deals with the provisions related to safeguard the misuse of the preventive detention powers of the government agencies. According to this, a person who has been detained under preventive detention, cannot be held for more than 3 months without the recommendation of an advisory board. This advisory board will be formed containing at least three members who are either high court judges or have the qualification to be high court judges.

Clause 5 of Article 22 of Indian Constitution mentions that an individual detained under any order which refers to preventive detention, may be given the right to know the grounds of detention and allowed to make representation against the said detention, on a time that the government sees fit and must be considered as soon as possible.

Clause 6 of Article 22 of Indian Constitution states that while disclosing the grounds of detention to a person, under clause (5) of Article 22 of Indian Constitution, the government has a right to withhold the specifics or facts which it may consider will harm the public interest.

Clause 7 of Article 22 describe the powers of parliament that by passing law the parliament can

(a) Define the necessary situations in which a person or class can be detained for more than 3 months, without consulting with the Advisory Board. However, they will need to pass a law for this.

(b) It can decide the maximum period of detention

LANDMARK JUDGEMENTS

D.K Basu V State of West Bengal-

In this case, D.K Basu, the Executive chairman of West Bengal Legal Aid Services wrote to the Chief Justice of India about the deaths occurring in police custody which was treated as a writ petition and thus the Supreme Court issued guidelines that are-

Police personnel should wear accurate, visible and clear identification and name tags with their designations while carrying out interrogation and arrest.
A memo of arrest shall be prepared by an arresting police officer and shall be attested by at least one witness and countersigned by the arrestee.
One friend or relative of the arrestee shall be informed, as soon as practicable, of the arrest and detention at the place in question
Where the next friend or relative of the arrestee lives outside the district then he or she must be notified by the police of the time, place of arrest and venue of custody within 8 to 12 hours of the arrest
Arrestee must be informed of his right as soon as he or she is arrested or detained
An entry must be made in the diary at the place of detention regarding all the particulars like arrest of the person, name of next friend who has been informed and the names of the police officers in whose custody the arrestee is detained.
On request, the arrestee should be examined for injuries at the time of arrest and provided with a copy of the resulting report, signed by both the officer and arrestee.
The arrestee should undergo a medical examination every 48 hours by a doctor from an approved panel
Copies of all documents regarding the arrest are to be sent to the appropriate local Magistrate for his or her records
The arrestee may be permitted to meet with his or her lawyer during interrogation , though not throughout the interrogation
A police control room must be established at all district and State headquarters where information regarding arrest should be received within 12 hours of the arrest and displayed on a conspicuous notice board.

Bhim Singh v. State of Jammu and Kashmir-

In this case, a Member of Legislative Assembly (M.L.A.) of Jammu and Kashmir was detained by the police on the eve of the Assembly sessions. From the facts of the case the Supreme Court came to the conclusion that Bhim Singh was not produced either before the Magistrate on 11th or before the Sub Judge on 13th , though he was arrested in the early hours of 10th of September, 1985. According to Article 22(2) of the Constitution of India, persons arrested or detained “shall be produced before the nearest Magistrate within a period of twenty four hours.” On the given facts the Court found that the conduct of police officers was a gross violation of Bhim Singh’s constitutional rights under Article 21 and 22(2). The above discussion amply establishes the fact that persons who are unlawfully deprived of the personal liberty by the officials are legally entitled to claim compensation or damages from the State.

DETENTION UNDER AFSPA

According to section 4 of Armed forces special Power ACT Any Armed forces personnel can shoot to kill in case of the commission or suspicion of the commission of offences and arrest without a warrant.It is contrary to the Article 21 and Article 22 which talks about the Right to liberty and protect the people from unnecessary detention. AFSPA,violates human rights, There are so many examples when the oppressive powers given to the armed forces have been misused.

Case Laws

In Naga’s People Movement, Of Human… vs Union of India, 1997, many writ petitions were filed which probed the authenticity of the Armed Forces (Special Provisions) Act, 1958 and the Assam Disturbed Areas Act,1955. The petitions were filed upon seeing the injustice faced by the people of the disturbed areas. Based on the report, the inquiry found that the complaints were filed whenever there is a misuse of power but on the other side, many complaints were found false. Thus, it was held that the armed forces must function according to the Do’s and Don’ts while using the special power under this Act.
In People’s Union For Human Rights vs. Union of India And Ors, 1991, the question was raised that could armed forces arrest a person, male or female without the involvement of the Police Authority or not. It was held that any person whether male or female can be arrested without the consent of the Police Authority during the time and place of which the act being in force.

DETENTION UNDER UAPA

The section 43 D of the UAPA states that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

The way the UAPA is being used by the current regime shows that we need to repeal the legislation instead of diluting it. In Bhima Koregaon cases in Maharashtra, everyone is being charged as a terrorist, irrespective of whether that person has anything to do with terrorism. In North-East Delhi cases, victims are charged under UAPA when they were raising their voice through peaceful protests in a non-violent manner.

There is no review committee available under UAPA that would filter the cases and allow prosecuting someone. UAPA took the shape of anti-terrorism law without any sunset clause. In making a comparison between the aforementioned legislations, the UAPA is more oppressive compared to POTA and TADA. There are strict bail conditions in the UAPA and chances of bail are rare.

Case law

In Angela Harish Sontakke v State of Maharashtra(2016), the Supreme Court granted bail to the accused, notwithstanding section 43-D(5) of UAPA. The Supreme Court followed this precedent in Sagar Tatyaram Gorkhe v State of Maharashtra (2017) wherein the accused had spent four years in jail, and there were over 147 witnesses still unexamined. “The present case is more egregious than those two above-cited instances,” the Justice Ramana-led bench observed on Monday.

DETENTION UNDER PASA

The Section 3 of the prevention of anti social activities act, 1985 states that,

(1) The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to do so, make an order directing that such person be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate of the Commissioner of Police, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.

The act provides for preventive detention of habitual offenders Under the PASA Act, habitual offenders can be held in preventive detention on the orders of district magistrate for upto one year. After detaining a person, the authorities have to inform the PASA Advisory Board within three weeks, and the board, headed by a retired high court judge, has to inform the government if the detention is valid or not.

If the board opines that there are no sufficient grounds, the detention order is revoked.

Many times the preventive detention under PASA has been misused and abused by the executive authorities but the judiciary have given certain guidelines and judgement which protect the fundamental rights of the accused.

CASE LAW

Thakarsibhai v. State of Gujarat

The Court in lieu of the above judgment held that contention raised by the petitioner cannot sustain as only in the exceptional cases, pre detention matters were maintainable. The Court dismissed the petition considering the fact that only one FIR had been registered against the petitioner and the case of the petitioner is not such that it can be entertained under Article 226 of the Constitution of India and no other exceptional circumstance is carved out to intervene with the principles of the detention.

OTHER IMP CASE LAWS RELATED TO DETENTION

The first Preventive Detention Act was passed after independence in 1950. But this act was questioned on its validity in the case of AK Gopalan v. The State of Madras where it was apparent that freedom of an individual does not qualify as provided under Article 21. The Supreme Court, having taken a limited view of Articles 21 and 22, refused to entertain whether there were any inadequacies in the procedure provided by law. It was of the faith that each constitutional article was autonomous of each other. When the petitioner questioned the validity of his detention on the grounds that it violated his rights pursuant to Articles 19 and 21 of the Indian Constitution, the Supreme Court disregarded all the arguments that the detention could be justified merely on the ground that it was conducted in accordance with the ‘legally established procedure.’
In the case of Maneka Gandhi v. Union Of India, the court considerably broadened the range of the expression ‘personal liberty’ and interpreted it in its broadest extent. The court noted that Article 21 does not exclude Article 19 and that any statute depriving a citizen of personal liberty will have to concurrently stand up to the scrutiny of Article 21 and Article 19.
Justice Chandrachud in the case of Justice K. S. Puttaswamy (Retd.) and Anr. v Union Of India And Ors. established threefold conditions in the case of an infringement of personal liberty of individuals: (i) validity, which presupposes the presence of law; (ii) need, identified as a valid purpose of the State; and (iii) proportionality, which guarantees a fair relationship between the objects and the ways pursued to attain them.

CONCLUSION

The intention of the preventive detention law is to prevent the anti-social elements from causing hindrances in the society which might lead to harmful effects on the lives of citizens, but these laws have to be applied with utmost care and precaution so as to avoid any controversy. These laws directly affect the fundamental rights and freedoms of people who are guaranteed by the primary source of law in India i.e. the Constitution of India and the complexities arising out of the irresponsible implementation of these laws can consume a lot of time of the judiciary and life of the person so detained.

REFORMS IN CRIMINAL LAWS

February 9, 2020/in Criminal, Legal Awareness /by aaditya.bhatt

REFORMS IN CRIMINAL LAWS

Why in news?

Recently, the Union Ministry asked all state governments to send their suggestions for Reforms in Criminal Laws as a major overhaul and recasting of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), thus paving way for reforming criminal justice system of India.

REFORMS IN CRIMINAL LAWS

More about news

Bureau of Police Research and Development (BPRD) will undertake review of the laws such as IPC, CrPC, Indian Evidence Act and Narcotic Drugs and Psychotropic Substances Act.
- BPRD under Ministry of Home Affairs was set up in 1970 in furtherance of the objective of the Government for the modernisation of police forces.

Need for reforms in Criminal laws (IPC and CrPC)

To make the laws more moral and ethical:
Some penal code offences need to be dropped
to make the code consistent with the new
ideals of constitutional morality, viz. the narrowest possible definitions of crimes, presumption of innocence etc.
To give a fair share to individual: In a criminal justice system, since an accused as an individual is pitted against the might of the state, criminal law must ensure that the state does not take undue advantage of its position as prosecutor.
- To get rid of obsolete and archaic provisions: Criminal and penal codes need substantial changes to fit into the liberty model and its obsolete provisions must go. IPC was intended to be regularly revised by legislative amendment. This did not happen, as a result the courts had to undertake this task upon themselves. The result was not very satisfactory as most amendments have been ad hoc and merely reactive.
- To remove ambiguity and vagueness: For instance, the distinction between ‘culpable homicide’ and ‘murder’ is criticised as the ‘weakest part of the code’ as definitions are obscure. ‘Culpable homicide’ is defined, but ‘homicide’ is not defined at all.

Way Ahead for Reforms in Criminal Laws

Any revision of the IPC, therefore, needs to be done while keeping several principles in mind. Such as:

Reforms must be introduced to uphold democratic values, and human rights must be given a high priority. Victimological underpinnings ought to be given a major thrust in reforming laws to identify the rights of crime victims.
Construction of new offences and reworking of the existing classification of offences must be informed by the principles of criminal jurisprudence which have substantially altered in the past four decades.
New types of punishments like community service orders, restitution orders, and other aspects of restorative and reformative justice could also be brought in this fold.
Classification of offences must be done in a manner conducive to management of crimes in the future.
Unprincipled criminalisation must be avoided to save the state from dealing with too many entrants into the criminal justice system.
On the procedural side, sentencing reforms are highly imperative. Principled sentencing is needed as judges at present have the discretion to decide the quantum and nature of sentence to be imposed.

Criminal justice is in a state of policy ambiguity therefore there is a need to draft a clear policy that should inform the changes to be envisaged in the IPC or CrPC.

About IPC and CrPC
IPC determines the definition of crime, while the CRPC informs about the criminal investigations process
Indian Penal Code: It is the official criminal code of India. It is a comprehensive code which covers all substantive aspects of criminal law. The then British Legislature drafted the Code in 1860 on the recommendations of first law commission of India established under Lord Macaulay. Legislature has amended the Code has several times and is now supplemented by other criminal provisions.
Ex: Section 377(Unnatural offences), Repealed Section 309(Suicide), Section 497(Adultery), now repealed
CrPC: It is the main legislation on procedure for administration of substantive criminal law in India. Legislature enacted it in 1973, though initially created in 1882. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty.

Posts

PROVISIONS RELATED TO ARREST AND BAIL UNDER CRPC (Part2)

Bail under Section 436 of the Code

Bail under Section 437 of the code

Bail under Section 439 of Cr. P.C.

Bail under Section 389 of the Code

Bail under Section 395 of the Code

Section 397 of the Code

Bail under Section 360 of the Code

Anticipatory Bails

Difference between bailable and non-bailable offence

CONCLUSION

PROVISIONS RELATED TO ARREST UNDER CRPC (Part 1)

Introduction

Arrest on refusal to give name and residence

Procedure of arrest by a private person

Arrest by magistrate

An exception of the Armed forces

Provisions related to arrest of women

RIGHT TO LEGAL REPRESENTATION

GUIDELINES FOR INTER-STATE ARREST

Glimpse of NDPS Act 1985

Introduction

Purpose behind this Act

Classification of Drugs.

Salient features of the Act

What is Bail Bond?

Introduction

Advantages

Disadvantages

Conclusion

LAW OF DETENTION IN INDIA

Detention

Safeguards under Constitution of India

LANDMARK JUDGEMENTS

DETENTION UNDER AFSPA

DETENTION UNDER UAPA

Case law

DETENTION UNDER PASA

CASE LAW

OTHER IMP CASE LAWS RELATED TO DETENTION

CONCLUSION

REFORMS IN CRIMINAL LAWS

Why in news?

More about news

Need for reforms in Criminal laws (IPC and CrPC)

Way Ahead for Reforms in Criminal Laws

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