Bail Not Jail

Bail Not Jail
  • By : Anandi Sharan

 

 

In a recent case at Uttarakhand High Court at the end of April 2018 a person accused under the Indian Penal Code of cheating, of being party to a criminal conspiracy, of wrongfully confining a person, of receiving and detaining against his will a person as a slave, and also of rendering his services for purposes of transplantation and helping in the removal of a human organ without authority, as well as offering to supply a human organ for payment under the Transplantation of Human Organs Act, 1994, was given short term bail for a month on execution of a Rs one lakh personal surety and furnishing two reliable local sureties, so that he could look after his ailing mother who is suffering from cancer and had no one other than the accused to look after her. The person is accused of crimes carrying a maximum penalty of seven years in prison. Judge V.K.Bist heard the argument of advocate R.K. Singh who appeared on behalf of the accused that the accused was falsely implicated in the crime and had been languishing in jail since long.

After the hearing advocate R.K. Singh drew attention to the need for bail for anyone accused of a crime, even someone charged with committing serious crimes.

It will not have escaped the attention of reasonable people that there has been a regrettable tendency in the media to report demands by all and sundry for quick justice against those committing serious crimes. By reporting such demands the media bears responsibility for contributing to raising doubts in the minds of their readers or viewers about the law.

The law on bail in India was stated in 1977 by Justice VR Krishnaiyer in State of Rajasthan, Jaipur vs. Balchand @baliay, as “ tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime.”

Justice Krishnaiyer in that particular case also took into account that “the social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice, at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage.” He further commented that “while the system of pecuniary bail has a tradition behind it, the time has come for rethinking on the subject. It may well be that in most cases not monetary suretyship but undertaking by relations of the petitioner or organisation to which he belongs may be better and more socially relevant.” “the social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice, at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage.” He further commented that “while the system of pecuniary bail has a tradition behind it, the time has come for rethinking on the subject. It may well be that in most cases not monetary suretyship but undertaking by relations of the petitioner or organisation to which he belongs may be better and more socially relevant.”

Judge V.K. Bist in the kidney racket case discussed here clearly followed the arguments of advocate R.K. Singh on behalf of the accused that there is no reason against granting bail and many reasons for granting it. Rule of law in a country does not happen magically but through the perseverance of advocates. The media that reports emotional demands by the public for revenge against people accused of a serious crime should exercise discretion on reporting such demands. Only in an atmosphere of calm and confidence that legal professionals will act according to the principles of justice to uphold the rule of law can the country manage the enormous challenges of the negative social impacts of the ever more rapidly deteriorating economic condition of the majority of citizens.

(Anandi Sharan was born in Switzerland, lives in Bangalore and last year worked in Araria District Bihar, India. She works on trying to find the best money system to help people adapt to climate change especially in India.)

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