Statutory Bail

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Context (IE): Despite being granted bail by the Delhi High Court, JNU scholar Sharjeel Imam remains in custody due to other pending cases (E.g. 2020 North East Delhi riots).
He was arrested in 2020 for allegedly delivering an inflammatory speech and has been charged with sedition and unlawful activity under the Unlawful Activities Prevention Act (UAPA).

Grounds for statutory bail

Section 436-A of the Code of Criminal Procedure (CrPC) allows an undertrial to be released on bail if they have served half of the maximum period of imprisonment prescribed for the offence.
Section 436-A aimed to tackle the issue of the rising population of undertrials in prison.

According to NCRB’s Prison Statistics India 2022, more than 75% of Prisoners Are Under Trial.

For bailable offences, it is mandatory for courts to grant bail under Section 436 of the CrPC. In the case of non-bailable offences, it is the court’s discretion to grant bail.

Under Section 167(2) of the CrPC, the police have 60 days (or 90 days for offences with a minimum sentence of 10 years or more) to complete the investigation and file a chargesheet.
If the police fail to do so within this period, the accused is entitled to default bail.
Anticipatory bail (Section 438 CrPC) is a pre-arrest bail that can be granted to a person who apprehends arrest for a non-bailable offence.
Regular bail or ordinary bail (Section 439 CrPC) is granted to a person who has been arrested. It is granted by a court at discretion after considering the facts and circumstances of the case.

In 2022, the Supreme Court placed all ongoing trials, appeals, and proceedings related to Section 124-A of the IPC on hold until the reevaluation of the sedition law is finalised.
The SC noted that the Kedar Nath judgment 1962 (which upheld the sedition law) focused only on sedition’s impact on free speech (Article 19(1)(a)) without addressing its effects on the right to life (Article 21) and equal treatment (Article 14).

The Unlawful Activities (Prevention) Act (UAPA) is an anti-terror law enacted in 1967 and strengthened through amendments in 2004, 2008, 2012, and 2019.
The act defines a terrorist act as any act committed with the intent to threaten India’s unity, integrity, security, economic security, or sovereignty or to strike terror in the people.
In 2023, the Supreme Court ruled that mere membership of an unlawful outfit is a UAPA offence.
It gives the state more power than the Indian Penal Code (IPC), including more time to file chargesheets. Bail conditions are stringent, with courts having little room for judicial reasoning.