Revision as of 08:18, 14 August 2017

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.

Repeat offenders

Bail for repeat offenders, should be judicious: SC

The Times of India, Oct 04 2015

Supreme court on discretionary power in granting bail; Picture courtesy: The Times of India, Oct 04 2015

AmitAnandChoudhary

Give bail to repeat offenders cautiously: SC

Bench advises courts to use discretion

Modifying the “bail is rule, jail exception“ view, the Supreme Court has held history-sheeters or habitual offenders to be a nuisance and terror to society and asked courts to be cautious in granting bail to such individuals who are not on a par with a first-time offender.

A bench of Justices Dipak Misra and Prafulla C Pant said discretionary power of courts to grant bail must be exercised in a judicious manner in case of a habitual offender who should not be enlarged on bail merely on the ground of parity if other accused in the case were granted the relief. The SC, which has in a slew of cases taken a pro-bail stance, said that criminal past of the accused must be checked before granting bail.It said that courts should not grant bail in a whimsical manner. In the past it has held that seriousness of offence is not the only ground to deny bail, that compelling circum stances are needed to cancel bail and that interests of individual must be balanced against those of society. The observation came as it quashed an Allahabad HC order granting bail to a historysheeter in a murder case without taking into account the criminal antecedents of the accused who was involved in seven other heinous offences including murder.

“A history-sheeter involved in the nature of crimes which ... are not minor offences so that he is not to be retained in custody , but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune (simple)... The law expects the judiciary to be alert while admitting the plea of these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously,“ the SC said. Referring to the number of cases filed against accused Santpal Yadav, the bench said “there can be no scintilla of doubt to name him a history-sheeter“ and asked UP police to take him into custody forthwith if he had been enlarged on bail. The bench said it was clear as cloudless sky that the HC had totally ignored the criminal antecedents of the accused.

Inability to pay for bond

SC: Don’t keep poor in jail for failure to pay for bail

The Times of India, Feb 06 2016

AmitAnand Choudhary

SC: Failure to pay for bail no reason to keep poor in jail 

A prisoner is entitled to be treated with dignity and sympathy , said the Supreme Court while directing the Centre and state governments on Friday to provide all basic facilities to jail inmates commensurate with human dignity . To reduce the number of prisoners in overcrowded jails, Justices Madan B Lokur and R K Agrawal directed the prison authorities to take steps to release those who are languishing in jail for not being able to pay the bail bond.“A prisoner is required to be treated as a human being entitled to all the basic human rights, human dignity and human sympathy ,“ it said.

It directed the Undertrial Review Committee in districts to meet every quarter and take steps for the release of undertrials and convicts who have undergone their sentence or are entitled to release because of remission granted to them. It said undertrials who have undergone detention for half of the maximum period of imprisonment shall be released on his personal bond with or without sureties as specified under Section 436A of CrPC. “The Committee should see that undertrial prisoners are released at the earliest and those who cannot furnish bail bond due to their poverty are not subjected to incarceration only for that reason,“ it said.

Expressing concern over poor quality of legal aid provided to indigent litigants, the bench directed State Legal Services Authority to hire adequate number of competent lawyers to provide free legal advice to the poor accused. “The DGPIG in-charge of prisons should ensure that there is proper and effective utilisation of funds so that the living conditions of the prisoners is commensurate with human dignity,“ it said.

The court pointed out that as on December 31, 2013 the number of under-trial prisoners was 67.6% of the entire prison population, which is “unacceptably high“.

31% unable to furnish bonds

The Times of India, Apr 26 2016

31% don't get bail due to their inability to furnish bonds: Study

 Property disputes and family conflicts clog our judicial system and in a majority of cases, police detain the accused unnecessarily . These are the findings of Daksh, an NGO which analyses the performance of the judiciary . Around 66% of all cases studied are property-related litigations, and 10%, the second largest chunk, are family matters.

The other issues leading to litigation were recovery of money (8%), and permanent injunction, whereby a court orders a person or entity to take certain action or refrain from certain activities (3.4%).

The survey , involving more than 9,000 civil and crimi nal matters over 300 subordinate courts across the country , boosts the government's call for a “no detention policy“ in the near future where arrest is an exception and not the rule if an accused is available for interrogation and has honoured court summons.

In 64% of the cases, the accused was found to have been granted bail within a month of their arrest, probably since the courts did not find enough merit in keeping them behind bars. Another 14% were granted bail between one and six months. The apex court had in the past, while supporting `bail is the rule and jail is exception' theory , observed that police should refrain from arresting an accused if he or she is ready to cooperate in investigation and there is no fear that the accused would run away from clutches of the law.

During the study , spread over three months, Daksh interviewed 9,329 litigants in both civil and criminal matters from 305 lower courts in 170 districts in 24 states. The wide range of data portrays the need to correct the entire justice delivery system corroded over a period of time, which at present seems to be favouring the rich and the influential. The survey by the Bengaluru NGO was released on Saturday in the capital in presence of Justice Madan B Lokur, senior Supreme Court judge overseeing the implementation of judicial reforms in the country .

The survey also substantiates what the National Law University (NLU) -which partnered Daksh in the current survey -had found in an independent study last year.The NLU's interviews with 373 death row convicts had found that 75% of those given death penalty belonged to economically weaker sections, backward classes and religious minorities.

Many of them were sentenced to death probably be cause they couldn't defend their case because of their failure to find a competent lawyer to contest their conviction.

The current Daksh study too, points to a similar picture: around 31% of those who couldn't avail of bail was due to their inability to furnish a bail bond. In 2.8% of cases, the accused couldn't find a guarantor who could stand as surety . Surprisingly , there is no rule that prohibits the courts from releasing an undertrial where it feels detention is avoidable. The amended Section 436A of the Code of Criminal Procedure provides for release of undertrials under personal bond where he is not able to furnish the bond money or surety .

Grounds for getting bail

Lack of western commode

The Times of India, Jun 02 2016

Colonel Jasjit Singh, suspended commandant of 39 Assam Rifles (AR) and main accused in a gold robbery in Mizoram, was released on interim bail for 60 days after his lawyers complained that lack of a commode in Central Jail, where he was imprisoned since May 17, was affecting his bodily functions. Aizawl district and sessions judge Lucy Lalnunthari granted bail to Singh on Tuesday evening after his lawyers, W Sam Joseph and Francis Vanlalzuala, furnished a bail bond of Rs 10 lakh. The colonel spent 14 days in judicial custody at Central Jail in Tanhril near Aizawl.

The colonel is accused of instructing troops under his command to waylay and rob a vehicle carrying smuggled gold in Aizawl on December 14, 2015.

“Colonel Jasjit Singh needed help while defecating. He could not sit on the Indian-style toilet,“ the lawyers said.They told the judge that he had sustained injuries while serving at Siachen. He had also fractured his spine once, is 40% disabled, and requires regular physiotherapy . “He suffered very much in judicial custody as there was no commode in the bathroom,“ they said while pleading for the bail.

The lawyers said the jail doctor had certified that Singh was finding it hard to sleep due to numbness in his leg, fever and shooting pains. They submitted a medical certificate issued by the president of the y the president of the medical board, Delhi Cantt., and a prescrip tion issued by the me dical doctor of Cen tral Jail to substantia te their claim.

Misuse

Trial courts turn interim bail to regular; SC disapproves

AmitAnand Choudhary, SC acts tough as accused misuse interim relief to get regular bail, August 13, 2017: The Times of India

 Even When Higher Courts Withdraw Protection, Bail By Lower Judiciary Holds

Expressing disapproval of the practice of trial courts giving regular bail to accused on the basis of higher courts' order to grant interim anticipatory bail, the Supreme Court has restrained subordinate courts from passing such orders, saying that it is an abuse of the process of law.

A bench of Justices Ranjan Gogoi and Navin Sinha said that trial court's order granting bail to accused would virtually make the higher court's order infructuous if it finally decided to withdraw the interim protection given to accused by dismissing plea for anticipatory bail . “Once a regular bail is granted by a subordinate court on the strength of the interimpre-arrest bail granted by the superior court, even if the superior court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate court would continue to hold the field, rendering the ultimate rejection of the prearrest bail by the superior court meaningless,“ the court said.

The bench passed the direction after noting that it had become a regular practice for accused to surrender before trial court and seek regular bail just after interim pre-arrest bail was granted by higher forums. “We have had notice of several such cases, time has come to put the learned subordinate courts in the country to notice that such a practice must be discontinued and consideration of regular bail application upon surrender during the pendency of the application for pre-arrest bail before a superior court must be discouraged,“ it said.

“We, therefore, direct that a copy of this order be forwarded to the director of all judicial academies in the country to be brought to the notice of all judicial officers exercising criminal jurisdiction in their respective states,“ the court said. The court passed the order after it was brought to its notice that a trial court in Jharkhand granted regular bail to an accused after it granted her interim protection from being arrested in a criminal case. The court had sought explanation from the judicial officer who passed the order.

The court, however, let off the trial judge saying that it was a “bona fide mistake“ on his part. It quashed the bail granted to the accused and directed her to surrender before the court.

Terrorists

No parole or interim bail for family exigencies

Dhananjay Mahapatra, SC: Terrorists won't get bail to visit family, Feb 21, 2017: The Times of India

Taking a tough stand against convicted terrorists, the Supreme Court has said those lodged in prison for long years for slaughtering people could not be given parole or interim bail because of family exigencies.

The remark came from a bench of CJI J S Khehar and Justices D Y Chandrachud and Sanjay Kishan Kaul as they dismissed a plea for interim bail by Mohammad Naushad, who was convicted by a trial court and subsequently the Delhi high court for the 1996 Lajpat Nagar bomb blast that killed 13 people and injured 38 others. The trial court had awarded him the death penalty but the HC reduced it to a life sentence, finding that he was among the conspirators.

“If you are involved in such [a] heinous offence of [the] indiscriminate killing of innocents, you cannot be seen to plead that you have a family and its responsibilities. The moment you get convicted in such offences, that is the end of your ties with your family and your family life,“ the court said.

“You cannot then say , `I have children, son or daughter'. You cannot ask for bail.You can challenge the conviction recorded by lower courts and seek acquittal. That we will hear and decide, but you will not be permitted to seek interim bail after the lower court has convicted you and the same has been upheld by the high court. If you have killed people indiscriminately, then there is no short-term bail,“ the CJI said before dismissing the plea.

Naushad, through advocate Farrukh Rasheed, had sought interim bail for a month to attend to his daughter's wedding on February 27. His appeal against conviction and the CBI's appeal for the enhancement of his life sentence to the death penalty are pending before the apex court. Naushad said he had already spent 20 years in prison and he had never been involved in any criminal case except the bomb blast one.“The appellant is having (sic) deep roots in society and there is no chance or likelihood of him running away during pendency of the appeal in the Supreme Court,“ the petition said.

Naushad said he had requested the Delhi government through the jail authorities on October 24 last year for parole to conduct his daughter's wedding, but there had been no response.His counsel Siddhartha Dave repeatedly pleaded that he had spent 20 years in prison for mere conspiracy while requesting the court to grant him bail. The pleas failed to move the bench.

See also

Jails/ Prisons: India

Jail inmates and the law: India