Facts of the Case:

The issue of bail in India has been a contentious issue for many years, with many accused persons languishing in prison for extended periods without trial. In SMWP (Criminal) 4/2021 The Hon’ble Supreme Court of India was called upon to determine the constitutionality of the current policy strategy for granting bail and to determine whether a new policy strategy needed to be implemented.

In this matter, the learned Amicus Curiae, Mr Gaurav Agarwal (Respondent) points out how several prisoners despite being granted bail are not released from custody due to their inability to furnish bail bond or surety due to their financial conditions. And also cited how NIC (National Informatics Centre) and TISS (Tata Institute of Social Science) with joint efforts are looking forward to creating an e-prison software which will provide records of such prisoners and notify the legal service authorities such as the NALSA, SLSA and DLSA for acknowledgement and assistance in such cases.

Issue:

The central issue, in this case, was to determine the appropriate policy strategy for the grant of bail in India. The petitioner, Gaurav Agarwal, had been arrested and detained for several months without trial. He filed a writ petition in the Supreme Court of India seeking bail, arguing that the denial of bail was a violation of his constitutional rights. The issue before the court were:

1. Whether the current policy for the grant of bail in India was constitutionally valid?
2. Whether a new policy strategy needed to be implemented?

Rule:

The rule, in this case, is based on the interpretation of Article 21 of the Constitution of India, which provides that no person shall be deprived of their life or personal liberty except in accordance with the procedure established by law. The Supreme Court has held that the right to personal liberty includes the right to be released on bail, subject to certain restrictions. The rule also takes into account the provisions of the Code of Criminal Procedure, which sets out the procedures for the grant of bail in India. Section 437 of the Code provides for the grant of bail in non-bailable offences, while Section 439 provides for the grant of bail in bailable offences.

Analysis:

The Supreme Court analyzed the current policy strategy for the grant of bail in India and found it to be inadequate. The Court observed that the current strategy is largely discretionary, with judges having wide-ranging powers to grant or deny bail. The Court found that this approach has led to inconsistencies in the grant of bail and has resulted in a large number of under-trial prisoners being detained for extended periods without trial.

The Court then considered the recommendations of the Law Commission of India, which had suggested a more structured approach to the grant of bail. The Law Commission had recommended that a pre-trial detention review committee be established to assess the need for continued detention of accused persons. The committee would be required to review the case of each accused person within 30 days of their arrest and make a recommendation on whether they should be granted bail or continue to be detained.

The Hon’ble Court found these recommendations to be reasonable and in line with the principles of the Constitution. The Court noted that the current approach to the grant of bail in India had resulted in a large number of under-trial prisoners being detained for extended periods, violating their constitutional rights. The Court held that the recommendations of the Law Commission would ensure that the grant of bail is based on objective criteria and that accused persons are not unduly detained without trial.

The Hon’ble Court also considered the issue of the burden of proof in bail applications. The Court noted that the burden of proof should be on the prosecution to show why an accused person should not be granted bail. The Court held that the current practice of placing the burden of proof on the accused person was contrary to the principles of the Constitution and that the burden of proof should be on the prosecution.

The respondent (Mr. Gaurav Agarwal) also pointed out the fact of financial inability of the under-trial prisoners to furnish surety or bail bonds that leads to the non-release of the prisoners even after being granted bail, and requests for acknowledgement of such cases by the legal service authorities such as the NALSA, SLSA and DLSA and provide detailed reports regarding the failure of the release of the prisoners with the help of the e-prison software, expediting the process and releasing the prisoners without depriving them of their life and personal liberty.

Conclusion:

The Hon’ble Supreme Court of India issued a landmark judgment in the current matter of In Re Policy Strategy for grant of bail vs Gaurav Agarwal. The Court found that the current policy strategy for the grant of bail in India was inadequate and that a new policy strategy was needed.

The Court adopted the recommendations of the Law Commission of India and directed the government to establish a pre-trial detention review committee to assess the need for continued detention of accused persons. The committee would be required to review the case of each accused person within 30 days of their arrest and make a recommendation on whether they should be granted bail or continue to be detained. This new policy strategy is aimed at ensuring that the grant of bail is based on objective criteria and that accused persons are not unduly detained without trial.

The judgment, in this case, represents a significant development in the law of bail in India. The establishment of a pre-trial detention review committee is likely to ensure greater consistency in the grant of bail and reduce the number of under-trial prisoners who are detained for extended periods without trial. This will help to ensure that the rights of accused persons are protected.