Libertatem Magazine

Law Commission propose amendments to provisions relating to bail

Contents of this Page

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

Some of the major suggestions are-

  • In S. 438 of Cr.P.C. after examining large number of cases, it is recommended that anticipatory bail must be for a period prescribed by the Court granting such bail or till the charge-sheet is filed, whichever is earlier.
  • Section 437A of Cr.P.C was inserted in 2009, in view of the recommendations of the Law Commission made in 1996. This was done to give effect to the judgment of the Gujarat High Court in Harish Laxman Solanki of 1994. The said judgment was over ruled by the Full Bench of the Gujarat High Court in Omprakash Tekchand Batra vide judgment dated 14.08.1998. The Full Bench had held that imposing such conditions in exercise of s. 482 Cr.P.C. was unconstitutional, illegal and void ab initio. The proviso to Section 437A, was inserted without taking note of the Full Bench Judgment. The Allahabad High Court in Nannu’s case dated 13.02.2012, has made suggestions for taking only personal bond of the person acquitted of all the charges, giving undertaking to appear before the higher court, if so required. The Commission recommends the substitution of the said provision by providing that after acquittal of all charges leveled against a person, his personal bond be taken which will serve the purpose. Imposing any other condition may be violative of his constitutional and legal rights.
  • In case where the accused is granted bail and is not able to furnish sureties within a period of thirty days and moves an application for varying the bail conditions, the court would hear the application and pass an appropriate order. It is further recommended that the Court should not insist for giving local surety. Outside surety, may be accepted after verification of his antecedents and veracity of declaration so made through the investigating officer.
  • The actual period available for investigation has to be taken into consideration excluding the period of hospitalization etc.
  • When a person is arrested without a warrant, he would be informed by the arresting officer that he is entitled to free legal aid and may move an application for bail, orally as well as in writing (as far as possible), in the language he understands.
  • In a case of default bail, if the accused is not able to furnish surety within seven days, the Court, on his application may vary the conditions of bail.
  • The law panel has also taken into consideration the fact that poor people often face problems with the payment of surety. Hence, it has recommended that in case an accused is granted bail but is not able to furnish sureties within 30 days and moves an application for varying the bail conditions, the court would hear the case accordingly. The commission has also kept the door open for the acceptance of non-local surety after investigation by the investigating officer.
  • Bail applications should be decided by subordinate courts within a week and high courts shall frame the rules accordingly.

Grab a copy of the Law Commission Report here.

About the Author