Guest Post: Modest Proposals for Initiating Reforms in some Pre-Trial aspects of the Criminal Justice System

(This is a guest post by Mr. Divyang Thakur. Views are personal. His earlier posts can be accessed here)

The Current System

Across India, a simplified explanation for how the criminal justice system works at the pre-trial stage is as follows: — The police register a First Information Report (FIR) alleging commission of offences under certain provisions of the Indian Penal Code or other penal laws based on the understanding and discretion of the officer(s). As an FIR is only registered for cognizable offences, its effect is to allow police to assume the powers to arrest persons under Section 41 of the Code of Criminal Procedure, 1973 (CrPC) Depending on whether the offence is bailable or non-bailable, the police or the Court have to mandatorily grant bail. If the offence is non bailable, the police will not release the accused on bail, rather it will be the Magistrate/Sessions Court (hereinafter referred to as the Court for convenience) which will acquire jurisdiction to either grant or refuse bail [More on the scheme of cognizable and non-cognizable here]. 

In non-bailable offences then, it will be the accused who has to move an application for bail. Once the bail application is moved, the Court will usually direct the concerned officer [Investigating Officer (“IO”)] to file a reply and appear before the court. In serious offences, it is also necessary for the Court to hear the Public Prosecutor or Assistant Public Prosecutor along with the IO. Once the reply of the IO is furnished to the accused, the Court will hear the accused, the Prosecutor, and the IO, and decide whether the accused should be released on bail. If the Court decides that he should be released from custody, the next step is to decide on the terms of release — most commonly requiring security for appearance i.e., the bond that the accused should be required to furnish which is forfeited if he fails to appear before the Court in the future. The Courts also have power to restrict the liberty of the accused by prescribing certain conditions – for example, restricting movement of the accused to a particular area, requiring the accused to submit his passport into judicial custody, requiring the accused to report to a Police Station every month etc.

A cognate pre-trial process is the request for custody remand made by police where it is considered that custody of an accused is required beyond the initial 24 hours of custody that are sanctioned by an arrest. For example, securing custody to recover possible weapons or other evidence connected to commission of the offence. This application requires the Magistrate to decide whether the accused should be sent to police custody or to judicial custody — or, be released in case no sufficient grounds exist. 

If the accused is not granted bail and kept in custody, then at the end of 60/90 days he gets the right to apply for default bail provided that the IO has not filed a charge sheet before the Court. In an application for default bail, the Court has to mandatorily release the accused on bail subject to the furnishing of the bond (as decided by the Court.) 

The Issues that a Bail / Arrest / Remand Reform Legislation Should Consider

The purpose of this brief post is not to jump to any concrete proposals regarding what reforms might be needed to this pre-trial setup, but to point out issues / approaches that should be considered before any reforms are considered in respect of the status quo. The following issues arise in my experience as a Prosecutor: — 

1. Allowing the IO to be the final arbiter of the provisions of law under which the FIR is registered significantly influences the subsequent decisions at the stage of remand and bail. This is also in light of the judgment of the Supreme Court in Prahlad Singh Bhati [(2001) 1 SCC 480] which requires Magistrates to refuse to exercise their discretion in cases triable by the Sessions Court. It is time to make this arbitrary power subject to prosecutorial supervision. This already happens on an ad-hoc basis in cases of white-collar crime in Delhi. 
2. The Courts and the Prosecutors are unable to provide any meaningful check and balance over the powers of arrest of the IO. In cognizable cases, once the accused is arrested (in a majority of cases) he will have to apply for bail because it is unlikely that he would be released on bail by the Court on its own motion or that the initial application of judicial remand by IO would be refused. In practice, the Arnesh Kumar [(2014) 8 SCC 273] judgment remains toothless. Moreover, there is no meaningful compensation or consequence for wrongful arrests. 
3. The police continue to get away with flimsy reasons for arrest. Vague assertions that the “accused is likely to tamper with the evidence” without citing any specific facts continue to be the norm. 
4. The Courts and Prosecutors are wholly dependent on the IO for all necessary details about the accused and investigation – his age, social conditions, family details, profession, past record, behaviour during custody, to only mention a few. Usually queries about such things are answered in a blatantly partisan manner with bland assertions in order to support the refusal of bail. It could be time to consider involving professionals, social workers/psychologists etc, even at the stage of arrest and remand. 
5. On the flip side, in many cases the defence counsels are unable to add value at the stage of the bail hearing which stems from the fact that the defence has no right to peruse the case diary, consequently they are completely unaware about the turn that the investigation has taken. The only thing that remains to them is to comment on the strength of the evidence disclosed by the IO during the bail hearing.  
6. The only documents usually available for perusal at the stage of the bail are the written reply of the IO, the application of the accused, the documents collected during investigation and the Case Diary. While there is a prosecutorial duty to disclose relevant material as held in Sidhartha Vashisht (Manu Sharma) [(2010) 6 SCC 1], which duty would also be present at the stage of bail (see here), there needs to be a formalized procedure of disclosure which does not necessitate an application u/s 91 CrPC by the accused. 
7. A major chunk of time is spent by Courts on arguments regarding whether the offences alleged are made out or not i.e., whether there is a reasonable prima facie case or not. It has to be considered whether this is the best use of judicial time at the stage of bail. This is in light of the changing goal posts – sometimes bail is refused because the conscience of the society is shocked, sometimes it is granted because there is no likelihood of the accused fleeing from justice. In my opinion, and as discussed in Part 3 of this post, the objective of pre-trial detention cannot be deterrence or punishment without trial or a method of moral condemnation. Whether a reasonable prima facie case is made out is not the first question that should be asked. This in turn requires a change in methodology of the inquiry at the stage of bail. 
8. In a majority of economic and white-collar offences the Courts insist that the victims be compensated or the “cheated amount” be returned in exchange for bail. Any other consideration recedes into the background.
9. Police remand is often demanded on grounds that are not clear. It is time that the grounds of police remand are identified and restricted to certain investigation processes. It is undesirable for the Investigating Agency to hide behind obscurities. 
10. The presence of reverse onus clauses in special and local penal laws which shift the burden of proof onto the accused have the tendency to prejudice the accused at the stage of bail. It is desirable that the discretion of the grant of bail is made immune to the influence of these reverse onus clauses. 
11. Bail Provisions that shift the burden onto the accused – at the stage of bail – to show that no reasonable prima facie case is made out as a condition precedent to secure bail are unconstitutional and should be repealed.    

A Systemic Change in the Approach to Pre-Trial Detention: The Process Cannot be the Punishment

It has been highlighted by the Supreme Court in countless cases that the law of bail / arrest / remand has Article 21 of the Constitution as its foundation. At its core, keeping in mind well established values of human dignity and liberty as well as the presumption of innocence, any criminal justice system in a modern democracy cannot use pre-trial detention as an instrument of deterrence or punishment. Secondly, the question of pre-trial detention must be approached by the judiciary from a different angle. Currently, as we have seen, the question in the judicial mind is, should the accused be released on bail? However, the question that should be asked is must the accused be remanded to custody? There is a wealth of difference between the two approaches. Even though “bail not jail” is a common legal aphorism, currently the judicial process leads to varying outcomes and therefore there is urgent need to have statutory guidelines for deciding bail which clearly formalise the above said approach to bail applications. 

In turn, the approach to the above question has to be based on a multi-faceted inquiry – of which the question of there being a reasonable prima facie case is just one aspect. Various vulnerabilities should be assessed even at the stage of bail and arrest – poverty, homelessness, alcoholism and drug addictions, youth, mental illnesses and other structural inequalities, seasonal employment etc. Though many of these issues are argued by defence lawyers at the stage of bail and remand, they are done so in a perfunctory manner and it is unclear as to how much such factors weigh with the Court while deciding bail applications or with the police while deciding to arrest. The methodology of such inquiry should be formalised and made a matter of routine. 

Conclusion

Victims often demand that the accused be kept in custody for as long as possible, possibly because a full-fledged criminal trial takes a long time (even before Covid-19) and also because they believe (in many cases) that arrest and detention is the only method to arm twist the accused into a settlement. Pre-trial detention is also sought to be justified on the basis of the gravity of the situation, public sentiments being hurt or that a certain religious community has been offended etc. Police officers treat pre trial detention as a way of pronouncing righteous judgment on the accused and feel that notwithstanding the final outcome of the trial, justice has been served. Consequently, the Investigating Agency is in most cases divorced from the success of the trial. 

The law of pre-trial detention cannot be captive to extraneous considerations or powered by moral indignation. It is high time that judicial decision making in pre-trial detention is consistent throughout the country and in tune with constitutional values.