A recent verdict of the apex court reiterates the law of bails. Surprisingly, such regular reminders notwithstanding, courts somehow blink at the concept that bail is the rule and jail the exception.
There is an increasing tendency of courts to assume the guilt of the accused and refuse bail for long periods of time. ‘Investigation is on’ is a template argument of the prosecution and without batting an eyelid, courts proceed to state that the accused thus would require to be in jail.
The apex court has Subrata Roy in jail for white collar offences where the case is that he cheated people of their earnings and came up with Ponzi scheme. The Supreme Court has used the whip in the manner it wishes. This article can well consume the allotted space by listing various cases where bail has not been granted for long periods of time.
There is another worrisome tendency in high courts. Criminal appeals filed by convicts who have been handed over a life or death sentence as a matter, of course, are rejected bail. Here jail is the rule and bail the exception.
To those in the know of the system, a criminal appeal against conviction is a matter of right. Often it takes but a few minutes for a court to admit a criminal appeal. It then takes a few years for this appeal to be heard by a bench of the high court. What happens in the meanwhile is that the citizen languishes in jail.
Who accounts for the time spent in jail? After all, the action of the prosecution is based on good faith and the prosecution proceeds on a given set of perceived facts that the accused is guilty of a ghastly offence. The pieces go missing in the final picture and this could lead to acquittal. Meanwhile, the citizen has been deprived of his personal liberty.
Responsibility turns Power
The Indian Constitution provides that every citizen has the right to life and liberty and the same can be deprived only by ‘due process’. There is a growing tendency for the police in the name of administering their powers of investigation to summon spouses in the name of investigation. A client weeps his experience of how he receives calls from persons identifying themselves as high ranking police officers and demanding that the citizen come in for interrogation or face an arrest.
There is a growing incidence of divorce in the country. Spousal disputes and premarital sex are on the increase. This gives the police a greater responsibility. Unfortunately, for the men in uniform, this is seen as more power.
It is contextually relevant to recall the recommendations made in this regard by the apex court which requires that:
• In every district, one or more family welfare committees be constituted by the district legal services authorities preferably comprising three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
• The committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
• Every complaint under section 498A received by the police or the magistrate be referred to and looked into by such committees. Such committees may interact with the parties personally or by means of telephone or any other mode of communication, including electronic communication. Till the report of the committee is received, no arrest should normally be effected.
• Complaints under section 498A and other connected offences may be investigated only by a designated investigating officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today.
Time is Important
If a bail application is filed with at least one clear day’s notice to the public prosecutor/complainant, the same may be decided as far as possible on the same day.
Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/custody and interest of justice must be carefully weighed.
Personal appearance of all family members, and particularly outstation members, may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting the progress of the trial.
Such an approach would perhaps not completely do away with excess. It could, however, be some procedural insurance against abuse. It could also help moving in the right direction and reiterating what Justice Madan Lokur said in a recent verdict that bail is the rule and jail the carved out exception.
Justice Lokur for the bench pointed out that only when there is an apprehension that the person being investigated is likely to avoid investigation or escape from the jurisdiction, should arrest be thought necessary.
Against the backdrop of such law, repeated instances of the citizens being summoned to police stations and men and their family members being persecuted under the threat of prosecution is a clear case of use of naked power. Time the police were policed.
(The author is a senior designated lawyer)