Part 5: India’s Bail Jurisprudence – Need for Urgent & Comprehensive Revamp

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Prologue: A Practitioner’s insights, laments, experiences and suggestions

22. Before embarking on a critical analysis of the LC Report, it would be useful to state a few personal views, arising from my experiences as a practitioner. The following list of suggestions, comments and opinions are itemized from the perspective of a practitioner who frequently comes across angularities in the real operation of law, a mismatch between theory and practice and some serious distortions and deviations in the real grassroots application of somewhat distant legal doctrines regarding Bail and Anticipatory Bail (AB). An attempt, by no means exhaustive, is made hereinbelow to itemize these diverse facets which have a cutting edge and daily impact on liberty issues.

1) There is a need for a serious review of laws relating to bail/anticipatory bail (AB). The test for both should, barring a few exceptions, be a uniform triple test viz. denial only upon demonstrable showing of flight risk and/or non cooperation and/or tampering with evidence, documentary or physical.

2) Though the should be largely uniform and exhaustive, I would concede a small, calibrated but strictly controlled derogation from the triple test in rare categories, narrowly defined eg Terrorism, Child Molestation, serial killings and the like. Apart from such carefully and narrowly defined categories (and possibly equally well defined sub classes within such categories), the triple test must govern all cases, despite the constant chant by the prosecution invoking so called “ gravity of the offence” test.

3) Flight risk will hardly arise, except in rare cases, since surrender of passport and frequent reporting coupled with comprehensive look out notices, has already reduced its risk and relevance virtually to vanishing point.

4) Non-cooperation must be restricted to mean non appearance when summoned. It cannot and should not mean answering questions in the way in which the questioner so desires. It cannot mean the admission of guilt. 18 It cannot even dilute, much less render the right against testimonial compulsion illusory, since the latter flows directly from Articles 20 and 21 of the Constitution and reflects the values of the Magna Carta and the crusade against Star Chamber interrogations. 19 Tampering must be a real, practical and likely probability to lead to bail/AB denial. Where cases are old, where evidence is overwhelmingly documentary, where government files exist and have been seized and sealed, there can hardly be a case for arrest or denial of bail/AB on the clearly illusory apprehension of document tampering. Where statements of witnesses are already recorded, the chances of physical tampering are almost non-existent. Affidavit assertions in this regard by the prosecution must be direct, detailed and specific, with concrete material to suggest tampering, to constitute grounds for denial of bail. I have hardly ever come across any such detailing in any affidavit of the prosecution on this issue and yet, unfortunately, bail is denied on bare, banal, stereotype, template averments of tampering, bereft of any details.

5) Such robust enunciation of legal principles alone will make high sounding principles like “Bail is the rule and jail the exception” an operational reality. Otherwise such alliterative and inspiring prose will remain an ivory-towerish academic exercise of semantics. All developed common law jurisdictions, like USA, UK, Canada and Australia, follow this robust bias in favor of freedom of individuals, despite being individuals accused of serious crimes. This bias in favour of individual liberty is based not upon the desire of filling jails but strong supervisory and regulatory controls imposed upon such accused who are enlarged on bail.

6) Though several High Court Rules provide for the general rule (eg. Delhi HC Rule 7, Vol 3, Chapter 11, Part B) in respect of police remands, to the effect that “the longer the accused person has been in custody, the stronger should be the grounds required for a further remand to police custody”, the trial judges have to be sensitized to the spirit of such rules, because remands, especially for indigent and less literate accused, and even for the so called powerful, are being granted for the asking, routinely and repetitively. Assertions of the prosecution are bland, blanket and vague and yet accepted without much scrutiny.

7) The obligation of the prosecution to produce the case diary and demonstrate clear necessity for remand is followed, in practice, mostly in the breach, despite established judicial authority in this regard in favor of the accused. 20 The assertions in sub para 11 hereinbelow are relevant in this regard, which demonstrates the increasing irrelevance of the case diary in actual adjudication and the increasing use of so called sealed covers. Moreover, no one is checking special authorities like ED, SFIO etc, who, despite exercising huge criminal and coercive powers, do not actually maintain anything resembling a case diary viz a continuously paginated and bound book of the investigating officer. Any and every set of loose leaved unnumbered papers are being passed off and being accepted as case diaries.

8) Where the gravity of the offense test is applied, apart from the few listed exceptions above, gravity must necessarily be measured by the length of punishment imposed by legislative wisdom for the offense concerned. Purely hypothetically, it is logical and reasonable to argue that while some may treat rape as the most heinous offense, others may treat murder as most grave, while still others may treat so called “white collar crime” as gravest ( eg China, which prescribes mandatory death for some categories of white collar crime). Such determination has to be that of the legislature, neither of the judge, nor of society, nor of the complainant nor of the accused. The legislature alone is capable of reflecting, at least as a valid deeming fiction, societal anger at the concerned crime, by stipulating higher sentences for some and lesser for others. In the absence of this anchor criterion, we would be let loose on a sea of subjectivity qua the words “gravity” or “serious.”

9) In this regard, established judicial authority, gauging gravity of offense on the basis of punishment legislatively prescribed, has been usually ignored and not applied in most cases of bail/AB denial, by resort to vague references to “gravity” of offense. The correct approach is clearly reflected, inter alia, in some cases (21) , but observed mostly in the breach.

10) The well established and salutary principle that if the accused complies with and continues to comply with notice to appear, then there should be no arrest 21 is, especially in PMLA 22 cases (Prevention of Money Laundering Act, 2002), is unfortunately observed much more in the breach.

11) The entire practice of handing over so called sealed covers across the bar to the court in a court proceeding, without either sharing it with the accused or filing an affidavit in that regard, and then asking the court to base its verdict denying bail/AB upon such sealed covers, must be stopped forthwith with a clear SC decision in his regard. In this respect, the following summary is relevant: (a) the sealed cover contents need not/should not simply be shared or disclosed to the accused in a general/blanket sense (b) however, it must be demonstrated by the prosecution that the contents of the sealed cover relate precisely to the queries put to the accused in the interrogation/questioning and not matters not put to the accused (c) such queries put to the accused in regard to the material in the sealed cover must be disclosed to the court and not suppressed from the court (d) failure to do the preceding must result in the court refusing to receive any such so called sealed covers.

12) The apex court should immediately clarify and reiterate in an appropriate decision that section 45 PMLA and its two sub clauses regarding bail stand struck down in Nikesh Tarachand Shah v UOI, 2017 SCC Online SC 1355 : 2018 (170) DRJ 109; that, in any case, Section 45, even before being struck down, was inapplicable to AB; and that none of the legislative amendments to PMLA post the aforesaid Shah judgment, have reimposed the erstwhile twin conditions of Section 45 declared unconstitutional in Shah. Continued ambiguity in this regard despite the clear Nikesh Shah judgment, allows the prosecution to continue to argue up-to-date that the twin conditions apply and stand reimposed whereas not even the most stretched interpretation of any post Shah Amendment to PMLA so suggests.

13) One of the most important areas requiring urgent apex Court clarification is the bizarre interpretation of Section 3 of PMLA being advanced by prosecutions repeatedly in diverse cases of bail/AB viz that even if the accused is charged with offenses (eg PC Act (Prevention of Corruption Act, 1988) Section 13(1)(d) or Section 420 IPC or Section 120B IPC) which were admittedly not included as offenses in the PMLA Schedule when allegedly committed, section 3 of PMLA, and especially the words “possessing” and “projecting” in that section, do not ( as per the prosecution), constitute a retrospective application of criminal law because these words make it a continuing offense indefinitely into the future. There are thus many accused who have been denied bail/AB even though all the sections they are charged with were admittedly added to the PMLA schedule much after the date of alleged commission of offense. The accused’s significant stand that the PMLA is a purely consequential Act and operates only upon the principal offense (called predicate offense) being included within the PMLA schedule to enable following of money trail under PMLA, needs to be definitively decided by the apex Court. Merely possessing an alleged asset alleged to be proceeds of crime arising from an offense not intended by the legislature at the time of the alleged principal offense to be subject to the PMLA, should not be held to be covered by use of mere words like “projection”.

14) Established judicial precedent negating retroactive operation of substantive provisions of criminal law should be ignored: See, inter alia, the Constitution Bench in Rao Shiv Bahadur and Anr v State of Vindhya Pradesh, AIR 1953 SC 394 pr 10 23 , which clearly upholds the correct hallowed principle against the retroactive effect of criminal statutes.

15) In a nutshell, the entire approach to bail/AB needs a reassessment. Merely filling up jails with undertrials, not only ignores the fundamental presumption of innocence till guilt is established after proper trial, but also violates all tenets of Part 3 of the Indian Constitution and of Articles 20 and 21, therein, in particular. It is neither reformatory nor punitive. Given the length of delays in the Indian court system, undertrial incarceration, especially for the indigent, illiterate and disempowered, banishes them to the abyss of the forgotten, despised, dispossessed and demonized; is barbaric and may even constitute cruel and unjust punishment. All without trial and conviction. Cases of undertrials serving far more than their maximum possible sentence upon conviction may be few, but undertrials serving well more than half their maximum sentence are disturbingly high. No one can rewind the clock for them for the lost years of their life and nothing can compensate them for the misery that they suffer despite acquittal. This necessitates the true rationale for an urgent and comprehensive reevaluation of basic bail principles, as also reflected in the practitioner’s perspective.

16) There is also the new phenomenon of “relay jurisprudence” in bail/ AB cases. It is an extremely disturbing phenomenon and destroys all pretense of prosecutorial fairness and objectivity, apart from seriously undermining the basic credibility of the entire system. It is bad enough as it occurs in its present form (mostly limited to so called high profile cases of the so called “ high and mighty”), but is now in danger of becoming a routine practice. The following points are noteworthy in this regard:

a) the “ relay” phenomenon arises thus. One prosecutor ( eg CBI) in offense X seeks and gets police remand, say for 14/15 days. The same CBI then presses for judicial remand which, in a high profile case, easily lasts an average of 60 days. As CBI and ED begin to feel that the accused is likely to be released on bail after 75 days in custody ( 14 police and 60 judicial), the ED steps in and seeks, through a production warrant, police / ED custody all over again, arising from the same predicate/ principal offense. Having got this police custody, the same process is repeated by ED usually for a further 75 days, now totalling 150 days. As this 150 days is nearing its end, it is highly likely that this high profile accused is again sought to be taken into police custody again by the CBI but for a different alleged offense viz offense Y. Here again the four sub parts of the relay will be repeated (CBI police custody + judicial custody + ED police custody + ED judicial custody), yielding the rich haul of another 150 days (now totalling 300 days, almost a year!)

b) For those who think that this is a figment of a fertile and febrile imagination, let me state clearly that I am personally appearing in several cases where exactly this is being attempted by CBI and ED, acting in tandem. I must, however, concede that none has reached near the one year mark, though, at the rate things are going, coupled with absence of robust judicial scrutiny and bold intervention, that milestone is likely to be achieved in the not too distant future.

c) The relay concept is already displaying its comic facets ( though tragic for the incarcerated accused). Those accused who logically apply for simultaneous ED interrogation while under CBI police or judicial custody (such applications by accused themselves being a new response to the new relay phenomenon), are usually met with forceful ED opposition to the effect that they do not need the accused at this stage for interrogation! The same ED however, as soon as it senses the likelihood of bail enlargement in the CBI proceedings, miraculously changes its mind in the next few months and aggressively seeks ED police custody followed by judicial custody!

22A. As will be shown in the discussion following, many of these real and nitty gtitty severe incursions into the liberty rights of the accused are not even recognised much less addressed in the Law Commission report/ recommendations. It is in the interstices of these ground level operational realities that the heart and soul of bail jurisprudence and liberty protection lies and hence such practitioners’ insights are a valuable tool to judge the efficacy of the LC suggestions for reform.

DISCLAIMER : Views expressed above are the author’s own.

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