Revision as of 17:56, 4 September 2015

Anticipatory bail

The rich benefit more

The Times of India, Aug 17 2015

Dhananjay Mahapatra

Is pre-arrest bail meant only to protect liberty of the rich?

A common thread that runs through the Supreme Court's judgments in deciding anticipatory bail pleas is its zealousness to guard personal liberty and not to allow a person to get harassed or victimized by the police. The SC in Siddharam Satlingappa Mhetre case in 2010 had given the reason why anticipatory bail petitions were considered by the judiciary when a person approached for protection apprehending arrest. It had said, “A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community . Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.“ None of the over 200 judgments on anticipatory bail penned by the SC since 1975 pertained to a poor person facing arrest for a petty crime.

The poor do not even have the means to fill bail bond. They continue to languish in jail during trial for petty offences. They are condemned to a life in prison even before conviction. Police arrest thousands for petty crimes.The steps of district courts are too high for them to climb and seek anticipatory bail. If they ap prehend arrest, their first in stinct is to flee.

“Liberty“, anointed to an exs alted position in criminal justice e system by the SC, is ever so elusive for them. It is only for the pols iticians, rich and famous. They l have deep pockets to afford top notch lawyers, who will paint lib erty's doomsday picture before the high court or the Supreme 0 Court to seek pre-arrest bail.Over the years, the SC had a standard advice to persons seeking anticipatory bail -move the trial court and seek regular bail.

Some time ago, a village `prad han' accused of siphoning off a few lakhs of rupees had rushed to the S t had rushed to the SC seeking an ticipatory bail as he feared that ar rest would dent his social stando ing and reduce his political weight. The court asked him to r approach the trial court and seek f regular bail.

Last week, former telecom minister Dayanidhi Maran rushed to the SC after the Madras . HC asked him to surrender and e seek regular bail from the trial court. We are not on the merits of g the case. The SC may have rightly e decided to extend stay on his ar rest. We are on the standard pro cedure of the court. Reputation . of a village `pradhan' is as pree cious as that of the former tele com minister. So, why hand out differential treatment? In the 2010 judgment, the SC had questioned under-trials languishing in jails for years for petty offences. Is anyone bothered about their right to life and liberty? The SC had said, “It is a matter of common knowledge that a large number of under-trials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 CrPC (anticipatory bail provision) has not been allowed its full play .“ From Sanjay Gandhi, the man who controlled the reins of power during Emergency , [1978 SCC (1) 411] to Gurubaksh Singh Sibbia, former agriculi ture minister of Punjab accused of political cor f ruption, [1980 SCC (2) 565], the SC had always seen some merit in the cry for justice of a class of t people who feared assault on their liberty through arrest.

In Sibbia case, the HC while I rejecting his anticipatory bail t had raised very pertinent questions. The HC had rejected Sibbia's argument that he was a man of substance and position who would not abscond. The HC read in the concept of equality and t said to accord differential treatment to Sibbia and co-accused on account of their status would amount to negation of the con i cept of equality before the law.

The HC also said it could hardly be contended that every man of t status, who was intended to be charged with serious crimes in cluding the one under Section 409 punishable with life imprison ment, “was entitled to knock a he door of the court for anticipa ory bail“. The cast-iron grounds or granting anticipatory bail laid down by the HC was disapproved of by the SC, but it did not touch upon the right to equality aspec vehemently raised by the HC.

In Sibbia case, the SC laid down a broad guideline but had said it was better to leave the dis cretion of grant of anticipatory bail to the trial court or HCs. “ A wise exercise of judicial power nevitably takes care of the evi consequences which are likely to low out of its intemperate use Every kind of judicial discretion whatever may be the nature o he matter in regard to which it is required to be exercised, has to be used with due care and caution n fact, an awareness of the con ext in which the discretion is re quired to be exercised and of the reasonably foreseeable conse quences of its use, is the hall mark of a prudent exercise of ju dicial discretion. One ought no o make a bugbear of the power to grant anticipatory bail,“ SC said But the moot question re mains -why are courts libera n interpreting `liberty' only when politicians, rich and fa mous fear police knocking a heir doors?

Custodial interrogation: India

Avoid custodial interrogation if accused is cooperative: SC

The Times of India, Sep 02 2015

AmitAnand Choudhary

Avoid custodial interrogation if accused is cooperative: SC

A bench of Justices A K Sikri and Rohinton F Nariman said a strong social stigma is attached to arrest, and the court must keep it in mind while deciding on the bail plea of an accused. “A great ignominy , humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community . Most people do not make any distinction between arrest at a pre-conviction stage or postconviction stage,“ said Justice Sikri, who wrote the judgment for the bench. The bench said once an accused is released on anticipatory bail, it should “ordinarily“ be continued till the trial of the case and it would be “unreasonable“ to compel the accused to surrender and again apply for regular bail. It set aside the order of the Gujarat HC cancelling anticipatory bail plea of a rape accused in a 14-year old case. The court said bail of an accused should not to be withheld as a punishment.