Friday, December 8, 2023

Freedom from ignominy

In various judgments, the Court has reiterated that bail is the rule and jail is the exception. The accused must have his freedom in order to establish his innocence, it said.

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By Dr Swati Jindal Garg

The Supreme Court recently proved the veracity of the slogan—Bail not jail. It was hearing applications by the Delhi Police against a Delhi High Court order granting bail to student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha in the Delhi riots case. The Court said: “We don’t believe in unnecessarily putting people behind bars. Bail matters should not go on and on and should not be dealt with in this manner.”

The matter was listed before a bench of Justices Sanjay Kishan Kaul, Abhay S Oka and JB Pardiwala. Justice Kaul, showing his disapproval of the time wasted in deciding bail applications, said: “Should High Courts even be spending so many hours on bail matters? I don’t understand this. It’s a complete wastage of judicial time of the High Court.” He also said that he failed to understand why both sides at the time of arguing a bail matter want the full trial to go on. On the opposition by the counsel appearing for the State on the bail granted, Justice Kaul remarked: “You are entitled to pray for the sky. I am not stopping you.”

Technically speaking, bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that he will not hamper the judicial process and is conditional release with the promise that the accused appear in court when required. It is generally considered when a charged person is held in order to prevent him from fleeing or continuing his criminal act. Bail is, however, not considered if there is a high chance that the accused person will try to either influence the witnesses or frustrate the proceedings. Bail is also usually denied taking into consideration the gravity of the offence.

Bail may be posted either by the charged person, or with his consent, by a third party, but this is done only after the third party has received a thorough briefing regarding the charges and reasons for custody and possible grounds for the forfeiture of the bail.

Time and again, the apex court has given judgments that clarify the grounds while granting or rejecting a bail application. In Satender Kumar Antil case, the Court laid down certain guidelines for the grant of bail while categorising offences into four categories. It also observed that these guidelines would operate upon the satisfaction of two conditions:

(a) that the accused was not arrested during the investigation. 

(b) the accused cooperated throughout in the investigation including appearing before the investigating officer whenever called. 

The four categories have been formed based on the punishment that the offence carries with it under the Indian Penal Code and/or some other Special Acts like the NDPS Act, PML, UAPA, Companies Act, etc. While in some categories, the guidelines are quite lenient, in others, it is not so.  

One of the most important things to be noted in this judgment is that the Court reiterated the principle that bail is rule and jail is the exception and that it needs to be remembered that the purpose of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. Further, the Supreme Court also relied heavily on another judgment passed by it in Nikesh Tarachand Shah. Here, it observed that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he is in custody. 

The law works on the presumption of innocent until proven guilty, and hence, it is of utmost importance that a presumably innocent person must have his freedom to enable him to establish his innocence. Keeping all this in mind, the importance of timely bail cannot be overstressed. Further, the Court reiterated the principle that the innocence of an accused is presumed through a legal fiction and that it is for the prosecution to establish his guilt before the Court and not the other way round.

The Supreme Court also analysed the approach adopted by various trial courts wherein, given the low rate of conviction and seeing that its possibility is rare, a trend was noticed where they decide bail applications contrary to legal principles and deny it. The Court also stressed the need to protect constitutional liberties. It said: “Courts must be alive to the need to safeguard the public interest in ensuring that due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum—the district judiciary, the High Courts, and the Supreme Court—to ensure that the Criminal Law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum—the need to ensure the proper enforcement of criminal law on the one hand, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Based on these observations, the apex court laid down certain guidelines that state that bail applications have to be disposed of within two weeks, and anticipatory bail applications within six weeks with the exception of any intervening applications. 

Such guidelines are in consonance with directions passed by Chief Justice of India DY Chandrachud in December 2022 where he said: “I have also directed that we will give priority to bail matters. So, 10 bail matters every day because that is a matter of personal liberty, 10 bail matters across all benches. Then we will start the regular work.”

There have been innumerable cases where there has been inordinate delay in bail—Khushi Dubey bail case, Jubilee Hills gang rape case and the most hyped of all, the Aryan Khan bail case. All reflect how constitutional liberties of the accused persons were curtailed with a view to exert pressure on them. The latest guidelines by the apex court will go a long way in paving the path for a better understanding of law by everyone and in setting standards for courts to follow in order to impart justice to citizens. 

The latest judgment in Satender Kumar Antil also reiterates the principles of bail that have been in existence for a long time. The apex court has emphasised the need for all key players, including investigative agencies as well as magistrates, to ensure that procedural compliances are met while upholding the rights of the accused person and ensuring that they are not curtailed during investigation, inquiry and trial. By directing the courts to decide on bail applications in a time bound manner, the Supreme Court has kept in mind that more than two-thirds of inmates in prisons today constitute undertrials and that a majority of them may not even be required to be arrested despite registration of a cognizable offence punishable with seven years or less.

For upholding the rule of law in any democratic country, the protection of constitutional liberties and the right to presumption of innocence of the accused has to be done at any cost. The Supreme Court has through this judgment placed the burden to comply with  procedural safeguards on the investigative agency.

However, the litmus test is whether magistrates and the agencies will be able to implement these guidelines in their true letter and spirit in order to create the perfect balance between constitutional rights of an accused person and the protection of society at large. 

—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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