Arrest & Bail: SC reiterates its Directions

SC reiterates its directions in arrest

In a recent judgement in Md. Asfak Alam v The State of Jharkhand, the Supreme Court (SC) re-issues directions to all courts in the country reiterating the directions already issued in Arnesh Kumar v State of Bihar and Another.

In Arnesh Kumar V State of Bihar & another, the Supreme Court said, “We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so.”

Sixty percent of arrests are unnecessary

Indian laws on arrest, pre-trial detention and charge framing are in shambles or irreparable disorder. Those laws are of colonial origin. The Law Commission of India in its 177th report, by citing the statistics provided in the Third Report of the National Police Commission, points out that sixty percent of the arrests were unnecessary or unjustified.

Avoid unneeded arrest & detention

The SC states that steps are to be taken to ensure that Police Officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically.

HCs to issue notifications/directions

The SC adds that the High courts are shall frame the directions in the judgement in Arnesh Kumar v State of Bihar and Another in the form of notifications and guidelines to be followed by the Sessions Courts and all other Criminal Courts dealing with various offences.

DGPs have a due role to play

The Director General of Police (DGP) in all states shall ensure that strict instructions based on the directions in Arnesh Kumar v State of Bihar are issued.

Both High Courts and DGPs of all states shall ensure that such Guidelines and Directives / Departmental Circulars are issued for guidance for lower courts and police authorities in each state within 8 weeks from the date of this judgement, the 31st July 2023.

Factors to be considered in bail

The judgement states that the factors that need to be considered while granting bail or anticipatory bail are: –

  1. Nature and gravity of the offence
  2. Propensity or ability of the accused to influence evidence during investigation, or
  3. Interfere with the trial process by threatening or otherwise trying to influence the witnesses
  4. Likelihood of the accused to flee from justice and other such considerations

SC upholds the value of personal liberty

The SC emphasize the value of personal liberty in the context of applying discretion in granting bail. Ordinarily bail ought to be granted in a long line of cases.

Arrest & detention necessary in serious cases

In serious cases, as specified under Section 437 of the Criminal Procedure Code (CrPC) which involve allegations relating to offences carrying long term sentences or other special offences, the court should be careful in exercising discretion. The paramount consideration in arrest or granting bail have been stated above.

The judgement adds that during trial it is open for the court to impose any condition which it terms necessary to ensure the accused presence and participation in the trial.

Police to file checklist & record reasons in arrest

The judgement reiterates that the police officer shall forward the duly filled checklist and furnish the reasons and materials while producing the accused before the Magistrate for further detention.

If a police officer misuses his power of arrest, he can be tried and punished under Section 166 of the Indian Penal Code.

Magistrate to record reasons for detention

The Magistrate shall peruse the report furnished by the Police Officer in terms aforesaid and only after recording his/her satisfaction the Magistrate will have to authorise detention.

The Magistrate authorising detention without recording reasons shall be liable for departmental disciplinary action by appropriate High Court.

Further reading

  1. Arnesh Kumar v State of Bihar and Another (AIR 2014 SC 2756)
  2. Md. Asfak Alam v The State of Jharkhand {2023 (2) KLD 381 (SC)]