PIL questions immediate arrests in dowry harassment cases

JAIPUR: A division bench of the high court has asked state government to give its reply to a PIL filed by one Vinod Singhal who questioned immediate arrests in cases pertaining to Section 498A (dowry harassment) and Section 406 of IPC (criminal breach of trust) filed by aggrieved wives against husband and his relatives.
The petition alleges that 70% matrimonial disputes are being converted into criminal cases by misuse of the provisions of Sections 498A and 406 of IPC. It has been alleged that once such a false criminal case is filed against the husband and his relatives the police immediately arrest the accused resulting in vanishing of chances of reconciliation between the warring husband and wife.
The PIL raises a point that since the offences are non-bailable, some guidelines must be issued so as to see that no husband or his relatives are arrested on false complaints. The petitioner demands that instead of registering the FIR immediately, the police must first call the parties for conciliation and in case the dispute remains unresolved, then only action should be initiated against the guilty husband and his relatives.
It has also been highlighted in the petition that in the recent past the Supreme Court too had observed that the law made for protection of women is being misused and has asked the Law Commission of India to report as to whether the law can be made bailable. The division bench of Chief Justice Amitava Roy and Justice V S Siradhana directed that a copy of the PIL be supplied to the government advocate.
http://articles.timesofindia.indiatimes.com/2013-07-09/jaipur/40468015_1_pil-questions-dowry-harassment-cases-division-bench

Bail, not jail, the norm, says SC, but the reality is opposite

MUMBAI: Bail, not jail, is a dominant principle of criminal law practised by every mature democracy and in India often in its breach. Be it A Raja or Kanimozhi in the 2G case, Suresh Kalmadi in the CWG case or Asaram, facing an unproven sexual assault charge, once a case becomes high profile courts are diffident to grant bail even if that flies against the express directive of the Supreme Court.
The same neglect of the principle is often seen in the case of thousands of undertrial prisoners — people who fall in a category that's quite the opposite of the high-profile cases; men and women without resources, financial or political — who are left to languish in jail for want of bail orders from trial courts.

A Mumbai lawyer says: "It's not only the underprivileged who fail to secure justice at a pre-trial stage, even highprofile arrests — cases that attract media hype — are often denied bail without adequate reasons for days or months." While releasing a bunch of accused in the 2G scam case, the SC reinforced that bail ought to be a norm, not jail.
Stiff opposition by police to bail applications even when investigations are over and the accused not likely to flee, has become the norm, lawyers said. Senior crime counsel Amit Desai said: "The court must be alive to the fact that liberty, a fundamental right, is taken away in such instances. It must ensure that the investigating officer concentrates on investigation that requires an accused to be in custody so that he can secure his liberty at the earliest.''
Police often treat denial of bail as an "easy route'', say experts. "Trials take time to begin. Often pre-trial incarceration exceeds maximum punishment for the charges invoked or becomes an incentive for police not to create a water-tight case on evidence,'' said advocate Saurabh Kirpal from Delhi. He added: "It becomes an easy route not to work hard at getting a conviction and treat pre-trial custody as substitute punishment."
There are times when despite long pre-trial jail, the case may end with an acquittal, which makes a mockery of justice. The need for an arrest is to secure presence of the accused for investigation, prevent further crimes and escape, make the community safer if the accused is prone to violence, and witness tampering. When these factors are absent, bail should be automatic.
Ashok Desai, former attorney general, said, "The object of denying bail cannot be punitive because punishment starts after conviction. Until then the accused is deemed innocent. Although bail, not jail, is the principle, there are two main factors to deny bail — possibility of the accused absconding and probability that he may interfere with the investigation and witnesses.
"A court has to balance the valuable right of liberty and the interest of society. It's here that often the prosecution suggests that if the offence is serious or the accused is an influential person, there's a danger of his absconding. This is why courts can impose conditional bail. If a condition is transgressed, the bail can be cancelled. Bail cannot be denied to teach a lesson to one whose offence is yet to be proved."
A series of commissions, from the third police commission to the law commission, stressed how police misuse arrest-powers. Ram Jethmalani, ace defence counsel, has for decades stressed that "pretrial arrest is neither meant to be punitive nor a punishment before verdict. It's meant to facilitate investigation." If an accused cooperates with the police and submits himself for investigation there's no justification for arrest, he said.
Senior Supreme Court counsel CA Sundaram said that legally, bail is a right. Advocate Harshad Ponda said liberty is guaranteed as a fundamental right. Under the right to life, liberty cannot be denied without adequate reason. Except when justified in heinous crimes such as rape, murder and dacoity.
Added Shrikant Bhat, a leading crime counsel in Mumbai: "The SC in 1994 laid down guidelines that hold good today. It proscribed police from using their power to arrest, just because it exists, without justification." Advocate Aabad Ponda said: "The amendment to the CrPC is to bring in some checks on indiscriminate and liberal arrests without any warrant by police.'' Every offence classified as non-bailable does not justify an arrest, said advocate Anand Grover.
Even in jurisdictions abroad, as in Florida, the law is firm that bail applications be decided on grounds that don't impinge on a person's liberty more than necessary to aid investigation or secure society's interest.

http://articles.timesofindia.indiatimes.com/2013-09-08/india/41873447_1_denying-bail-conditional-bail-cwg-case

Bill to negate Supreme Court verdict gets Rajya Sabha nod

NEW DELHI: Contending that there was a need to check growing "criminalisation" in politics, Rajya Sabha on Tuesday "unanimously passed" a bill negating a Supreme Court verdict to allow people in jail to contest polls.


Representation of the People (Amendment and Validation) Bill, 2013 provides for a change in the act of 1951. The amendment to sub-clause 5 of section 62 of the RPA, if passed by Parliament, shall come into effect from July 10, 2013, the day the Supreme Court gave its judgement that those in jail can not contest election.

"The fact is that the political class is the most accountable class in the country. Politicians are accountable to Parliament, to the Election Commission, to the country, to the people, to whom we go every after five years. We are the most accountable set of people in the country," Law minister Kapil Sibal said in his reply after a discussion on the bill.

"It is we who have passed the law to make us accountable. It is us who have decided to disclose our assets. Which other institution has taken such steps to make themselves more accountable," he said.

Sibal, who was congratulated by all members for bringing the Bill, said the apex court's order might perhaps not have come had the "environment" been different.

"I dare say, in an another environment, we perhaps would not get such a judgement. The environment is that political class is being looked upon with suspicion," Sibal said.

After examining the Supreme Court order, Government had filed a review petition, but instead of waiting for the outcome, it felt the need to "suitably" address the situation.  http://timesofindia.indiatimes.com/india/Bill-to-negate-Supreme-Court-verdict-gets-Rajya-Sabha-nod/articleshow/22097825.cms