Thursday, February 2, 2023

Let the law be the same for all

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While the general perception is that the star was favored, the high court’s orders were within the framework of statutory law. But would it work so fast for the common man?

By Shailendra Singh

It took 13 years for Salman Khan’s trial in an accident case to be completed, but just four hours for him to be granted bail after he was convicted and sentenced to five years’ rigorous imprisonment. What was the reason for this fast-tracking? Was it Salman’s star status or the charismatic personality of eminent lawyer Harish Salve that led to quick legal remedy for him?

There is no doubt that it was Salve’s presence in the Bombay High Court and his effective pleading that protected and enforced Salman’s immediate legal rights and accrued in his favour. The judgment was orally pronounced and only the operative part pronouncing his conviction was delivered.

As the complete judgment was not given to him, Salman by force of law (Section 363(1) of the CrPC) could not have been immediately incarcerated. He was left with no option but to seek urgent intervention from the high court, which granted the same as a natural course of justice.


The Supreme Court in a series of judgments has taken quite a lenient view with regard to personal liberties of an individual and has held that bail, not jail, is a dominant principle of criminal law. However, as far as the public is concerned, neglect of this principle is often seen in the case of thousands of undertrials, who neither have the resources nor the clout and are left to languish in jail. However, they cannot be compared to Salman’s case as, post May 6, 2015, he was held to be a convict.

The high court granted bail to the actor on the ground that the full judgment was not made available to him, and thereafter, suspended the sentence till the final disposal of the appeal with a direction for hearing it in July 2015. Section 389 of the CrPC allows an appellate court to suspend the sentence awarded to the accused and, if in confinement, to release him on bail pending disposal of his appeal.

As a matter of practice and a thumb-rule, courts have been asking the accused to first surrender and then seek bail prior to the hearing of his appeal. In most cases, suspension of the sentence was very seldom obser-ved. However, with the high court suspending the sentence in Salman’s case, there has been some positivity in the practical implementation of Section 389, which entitles a convict to seek suspension of his sentence rather than surrender first and seek bail later.


Though the general perception is that Salman was meted out special treatment, the high court’s orders are within the framework of statutory law and equities. However, it is a fact that if a common man with limited resources was convicted, he would not have been in a position to approach the high court so quickly.


Thousands of undertrials are unable to seek relief under Section 389 and languish in jail



Even if he had approached it, the court as per past practice, may have continued to ask the convict to surrender first before it hears his appeal and bail application.

In Salman’s case, Section 389, which entitles a convict to seek suspension of his sentence, rather than surrender first and seek bail later, has been invoked.

Though the power to grant bail or suspension of sentence in such offences is discretionary and rests completely in the hands of the court, higher courts must lay down a uniform mechanism which can be followed for grant of bail or suspension of sentence. This would make sure that even a common convict is not deprived of equal opportunity of protection and enforcement of his personal liberty in manner provided to celebrities like Salman Khan.

— The writer is an advocate in the Supreme Court and the Delhi High Court

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