Observing that if there are hundreds of reasons for denying bail then there are also hundreds of reasons for granting it, the Apex Court on Thursday expressed concern over Trial Courts showing reluctance in granting relief despite various directions to encourage bail & said the mindset of such Courts needs to change.
The Supreme Court, in a slew of orders, held personal liberty as an important aspect of constitutional mandate & that arrests should not be done in a routine manner when the accused is cooperating in a probe & there is no reason to believe that the person will abscond or influence investigations. The Court had in Oct passed guidelines as per which if an accused had cooperated in the investigation — & was not arrested during the probe — then s/he should not be taken into custody at the time of filing of the charge sheet. It held that a Trial Court can't also refuse to accept a chargesheet simply because the accused had not been arrested & produced before the Court.
Noting that the guidelines were not followed by trial courts, a bench of Justice Sanjay Kishan Kaul & Justices M M Sundresh said the signal that the Supreme Court wanted to send has not been reached & lower Courts remained apprehensive in granting bail.
"The idea was to encourage bail & not the reverse but it is not happening... It is all about mindset. But the mindset is to find a way to deny bail. It has to be changed," the bench said.
The Court said it is troubling that Courts are spending substantial time in deciding only bail matters instead of main issues & cases which should have been decided by high courts reach the SC. The bench said the result is that the top court is flooded with bail petitions.
The bench stated, "The endeavour was to reduce the bail application but it has, in fact, increased".
"It cannot be that everybody has to be put behind bars in every case. Bail should be encouraged & not jail," the bench said, noting that investigation goes on for years & during that period people should not languish in jail, which also causes overcrowding in prisons.
It further said the investigating agencies lack sufficient manpower to conduct probes in a time-bound manner & there is also a lack of infrastructure, like paucity of labs, resulting in inordinate delays. "In those circumstances, we have to take a call on the issue as the probe goes on for years," the bench said.
Senior Lawyers Mukul Rohatgi and Amit Desai, appearing for some accused who had not been granted by the trial court, said the SC's order was being wrongly interpreted by the trial courts & pleaded that some clarification was needed. The bench thereafter directed all the lawyers, including additional solicitor general S V Raju, appearing for the CBI, to sit together & come out with suggestions.
The Supreme Court had in Oct issued guidelines for different categories of offences. Referring to "A category" of offences (punishable with imprisonment of seven years or less), the court said ordinary summons be issued to accused to appear through the lawyer at the time of filing chargesheet. If there is no appearance then first bailable warrant be issued & later a non-bailable warrant.
The Court stated that "Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided".
For "Category B" offences (punishable with death, imprisonment for life, or imprisonment for more than seven years) & "Category D" (economic offences not covered by the special Acts), the bench said bail application be decided on merit on appearance of the accused in Court.
For "Category C" offences (punishable under Special Acts containing stringent provisions for bail like NDPS, PMLA, UAPA etc), the court said it would be same as Category B & D with the additional condition of compliance of the provisions of bail under the specific laws.
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