The division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna suggested replacing the word “shall” with “may” and substituting “bail or bail bond” with “personal bond with or without surety”.
The court was hearing a plea against the mandatory requirement, particularly in cases where the accused is compelled to remain in jail post-acquittal due to the non-provision of surety.
Section 437A of the CrPC mandates that an accused must execute bail bonds with sureties and appear before a higher court when it issues notice regarding an appeal or petition filed against the judgement. This requirement extends for six months after acquittal.
This provision is mirrored in Section 438 of the new bill — Bharatiya Nagarik Suraksha Sanhita(BNSS) Bill, 2023 — which aims to replace the CrPC of 1973.
The Centre’s counsel informed the court that the new criminal laws under consideration in Parliament would address this matter.
However, the bench noted that even Section 483 in the new CrPC does not resolve the issue, as it makes bail bonds mandatory.
Therefore, the court suggested that the Select Committee replace “shall” with “may” and replace “bail or bail bond” with “personal bond with or without surety.”
While recognising that the modification of new criminal laws might take some time, the bench directed trial courts to read “shall” as “may” and “bail or bail bond” as “personal bond with or without surety” in cases related to Section 437A of the CrPC.
The court ordered copies of this directive to be provided to the Principal District & Sessions Judges for circulation among all Judicial Officers in their districts and to the Select Committee for consideration.