Breaking: Bail System Inadequate And Inefficient, Law Commission Suggests Drastic Changes In Bail Provisions [Read Report]

Law Commission of India in its new report related to bail system, made significant suggestions to change the bail provisions keeping in mind that the poor people do not get bail, and even when bail is granted, it is difficult for them to get sureties.

In Report No.268 titled ‘Amendments to Criminal Procedure Code, 1973 – Provisions relating to Bail’ the Commission headed by Justice BS Chouhan stated that the existing system of bail in India is inadequate and inefficient to accomplish its purpose.

The Commission has suggested a series of Amendments in Criminal Procedure Code.

“The Law Commission was asked to make a standalone Bail Act, subsequently the Commission was asked to make the changes in the Cr.P.C. itself. The 21st Law Commission of India made suggestions to change the bail provisions keeping in mind that the poor people do not get bail, and even when bail is granted, it is difficult for them to get sureties”, states the Commission press release.

Major Suggestions by the Commission

1. 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.


2. In s. 436A of Cr.P.C. where the under trial accused is involved in an offence the imprisonment up to seven years, he should be released on bail on spending one-third period of the maximum punishment prescribed for that offence. For other offences carrying higher punishment, he may be released on bail after serving half of the maximum punishment prescribed for that offence. While the existing provision provide for serving of half of the sentence so prescribed in all cases, including minor offences. To ensure effective compliance of s. 436A of Cr.P.C. it is recommended that the Secretary to the District Legal Services Authority (a judicial officer) be a Nodal Officer.


3. In order to give effect to the recent judgment of the Supreme Court, it has been suggested that the bail application may normally be decided by the subordinate court within one week and the High Courts shall frame rules accordingly.


4. 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 provision s.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.


5. 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.


6. 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.


7. 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.


8. The actual period available for investigation has to be taken into consideration excluding the period of hospitalization etc.


9. It has also been suggested that the Court may not have a liberal approach in grant of bail in economic offences.

Read the Report here.