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
