The Supreme Court has asked the State of Bihar to look into the guidelines for arrest, keeping in view section 41A of CrPC, akin to those which have been issued by the Delhi Police. It said that the Bihar government may implement the same guidelines with any amendment/ modification, if required, for giving effect to the mandate of section 41A.
Moreover, for better administration of justice and in the interest of the litigating people at large, particularly when the liberty of an individual is involved, the Supreme Court has also put to the Patna High Court to consider the feasibility of implementing suggestions (made by the advocates in the matter before the top court) to tackle the problem of delayed listing and huge pendency of bail applications in the High Court.
The bench of Justices Ajay Rastogi and Vikram Nath was hearing the criminal writ petition filed in October, 2021 by one Abhyanand Sharma- arrested in a February, 2021 FIR for offences under the IPC, Arms Act and Bihar Prohibition and Excise Act- claiming that though his bail application under section 439 CrPC had been filed in April, 2021 before the Patna High Court, the bail application was yet to be listed. It was pointed out that the bail plea of a co-accused in the same FIR was heard and disposed. Whereas the bail application filed by the writ petitioner was listed before the High Court and he too was subsequently granted bail, the matter was kept pending in view of the fact that the practice being followed needs to be revisited by the High Court, particularly, if more than one bail applications are filed by co-accused persons arising from the self-same FIR, it has to be listed ordinarily before the same Court to avoid any disparity in passing of the orders in the bail applications.
In that reference, the Court had called upon Advocates Gaurav Agrawal, Santosh Kumar and Shoaib Alam to give suggestions in the matter. Taking the same on record, the Supreme Court asked the Patna High Court to take possible steps to implement the same "for better administration of justice and in the interest of the litigating people at large, particularly when the liberty of an individual is involved, which is sacrosanct." On March 10, the bench had orally observed that the suggestion of having designated benches to hear prohibition matters and to hear all cases where the maximum sentence was seven years or less, will bring in consistency of relief granted and help in efficient disposal. "Once charge-sheet is filed, where is the need to detain an accused in magistrate triable offences. There is huge pendency in the High Court and there is something wrong with the state. About 60 percent Judges are hearing only bail matters. It is not a bail Court but a constitutional Court", the bench said. Besides, the Court noted the Standing order issued by Delhi Police regarding guidelines for arrest, keeping in view Section 41A of CrPC.
The Standing Order No. 330/ 2019 lays down the 'Guidelines for Arrest' (arrest in cases where imprisonment is less than or extends to 7 years, arrest in matrimonial matters, arrest of senior citizens in family matters, etc), incorporating the judgments and observations of the Supreme Court in Joginder Kumar's case, D. K. Basu's case and Arnesh Kumar's case and the intent of section 41A of the CrPC. "We are not dilating on the issue any further, but we keep it open for the state government to look into these guidelines and implement it with any amendment/modification, if required, for giving effect to the mandate of Section 41A of the Code of Criminal Procedure," the Court said.
Regarding the implementation of provisions of section 41A Cr. P. C. and the guidelines laid down in the Arnesh Kumar Judgment, the bench had observed that there was little compliance of those principles in practice. It was pointed out by Mr. Alam that this was exactly where intervention of the Supreme Court was required. He had said that "Provisions of section 41A, 436A Cr. P. C. and Judgments regarding arrest need to be implemented across the country in order to help in reduction in pendency of bail applications. The principle of 'bail is the rule and jail an exception' is only restricted to the courtroom, whereas in reality, it is jail that is the rule and bail the exception. We are a trigger-happy nation where arrest is made not because it is necessary but merely because the police officer can arrest without application of mind. Ultimately it is an Article 21 issue". The court had responded by orally saying that "let us apply this in Bihar on a pilot basis and see what is the result. We will pass directions if required"
Case Title: ABHYANAND SHARMA @ TINKU SHARMA v. THE STATE OF BIHAR & ANR.
