Bail and discretion

SHIV KUMAR PUSHPAKAR

The judiciary seems convinced that unless it intervenes proactively, even the slender respect for the law that exists now can be lost.

The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.

Justice V.R. Krishna Iyer in the Gudikanti Narasimhulu case (1977)

Society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the state. The order must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society.

Justice Dalveer Bhandari in S.S. Mhetre vs State of Maharashtra (2010)

THESE are especially harrowing times for those arraigned before courts for suspected crime. The judiciary has shown itself to be extremely tough, causing a lot of heart burning among those habitually deviant. A vast majority of Indians welcome this, because far too many criminals have been getting away with murder literally, because of either poor police investigation or the capacity of the accused to buy up or intimidate witnesses during a trial.

In a few States, ruling parties have been complicit in such misdeeds. On occasion, lack of integrity among trial court judges has also been a problem. The Supreme Court and High Courts seem more than convinced now that unless they intervened proactively, things could go out of control, and even the slender respect for the law that we see often could totally snap. This is why the higher judiciary has shown itself to be aggressive and has sent a decisive signal down its hierarchy that it will not brook inconsistent rulings or unjustified lenience towards those suspected of or charge sheeted for crime.

The subordinate judiciary has been quick to respond with some unusual rigour in dealing with criminal matters brought before it. Substantial terms of imprisonment by trial courts and their ready endorsement by appellate courts mark a distinct trend that shows the Indian judiciary in good light. A lenient sentence of six months to a molester and a rash and negligent automobile driver who has killed several on the road could be things of the past. This decisive change of stance towards offenders should have a positive fallout by way of deterring potential offenders. Victims of crime should in particular be happy, especially those who have seen aggressors going scot-free right before their eyes.

There is, however, a flip side to the new phenomenon. There is an unexpressed feeling among some that the judiciary is possibly too harsh and insensitive. The enormous adulation that the judiciary has received from the media is cited by them as a distraction that needs a cautious and balanced response while giving rulings in the future. Those who plead for such a corrective are in a woefully small minority. They, however, cannot be ignored if India is to be regarded as a civilised nation, one that is characterised by mercy and poise. Any criticism of the judiciary is not exactly a popular line to plug at a time when the whole nation is in a rage over successive scams and people in high places making unbelievable quantities of money at the cost of the taxpayer. Somebody has to bring to the notice of the judiciary that there is a school of thought in the country that stands for moderation, even if it means undeserved lenience to those guilty or suspected of crime.

Something that is germane to the debate on perceived distortions in judicial approach to the current venality in the country is the amount of discretion enjoyed by the courts while responding to petitions for bail. The press is lapping up recent events with great relish to the point of being cruel to those locked up as a result of stern judicial orders. Not a word of dissent or disapproval of court orders has been heard, something that would have revealed a certain logical evaluation of such orders. This is a disturbing turn of events that needs introspection.

The current law on the subject of bail as incorporated in the Criminal Procedure Court (CrPC) gives courts a wide discretion in respect of those held in judicial custody or who apprehend custody. A chronology of decisions since the beginning of the Republic in 1950 is revealing. The pendulum has swung from the lax and liberal approach to bail requests to the somewhat harsh regimen now. This should send shivers down the spine of many in public life who, until the other day, took the judiciary lightly to the point of being furtively sarcastic and disrespectful. It is an entirely different matter that some members of the judiciary themselves have given quarter to such irreverence towards them. The current Chief Justice of India, S.H. Kapadia, has done enough to drive home the message that he is no respecter of personalities and that he will come down heavily on anyone straying from the path of virtue, even if he or she belongs to the judiciary.

One of the earliest pronouncements on the philosophy that should guide judges while disposing of bail applications was by Justice V.R. Krishna Iyer. His plea for a concern for fundamental rights, especially the right to individual freedom, which needed to be blended with protection of public safety, set the tone for judgments for several decades to come.

It was the accepted proposition that as long as an applicant for bail posed no threat to the lives and property of others, he deserved a lot of consideration. Combined with this was the need for an undertaking that he or she would in no way tinker with the processes of law, such as destruction of vital evidence that may not have come to the notice of the police or prosecution or intimidation of those who were expected to depose before the court during the trial. If this criterion was fulfilled to the satisfaction of the court, it invariably granted bail.

Of course, such an order came with a few restraints on the accused, and a prescription that he or she should appear before the police at prescribed intervals of time. Once the trial began, the accused was required to attend every hearing without fail, unless there were convincing reasons for absence on a particular day. Such a bail application was made invariably after the accused had been arrested or charge-sheeted. The implication was that none could move the court on mere apprehension of arrest. Then came the concept of anticipatory bail in the form of Section 438 in the new CrPC of 1973. The objective was to take care of situations in which an individual feared being taken into custody by the police in response to a frivolous complaint by a vengeful adversary. This was a welcome relief to those who had suffered shame and ignominy at the hands of unscrupulous members of society.

Voluminous case law has been built around the theory making anticipatory bail a weighty concept that courts could use with great care to protect innocent individuals. Distressingly, however, some judges began diluting the benefit of Section 438 by making it mandatory for hapless applicants to subject themselves to periodic appearances at police stations or courts. There was also a stipulation by some courts that an anticipatory bail would cease the moment a charge sheet was filed in a case. This possibly curtails the freedom of an individual, which was not contemplated by the lawmakers.

The whole subject came up for a review by the Supreme Court in the Sibbia case (1980) when the court said: Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if we cut down the discretion so wisely conferred, by devising a formula which will confine the power to grant anticipatory bail within a straitjacket.

The Sibbia ruling implied that judges need not feel fettered by narrow concerns and that they should interpret the law liberally so that no innocent person is denied what is due in the form of an anticipatory bail. This was the line of argument by the defence counsel in arguing for anticipatory bail of a Congressman, S.S. Mhetre, who was accused of involvement in a murder in 2009 and whose plea for anticipatory bail was turned down by the Bombay High Court.

In allowing the appeal, the Supreme Court (Justices Dalveer Bhandari and K.P. Radhakrishnan) went largely by the Sibbia ruling and said that any limitation on the validity of an anticipatory bail was not envisaged by the legislature. At the same time, the Mhetre judgment laid down that the discretion vested in the court should be exercised with great care and circumspection.

All recent court rulings on bail generally should be viewed against the backdrop of the Mhetre ruling. The courts have enormous discretion in granting or refusing bail. It is this discretion that possibly explains the varying standards applied in considering bail applications.

The point is whether differing perceptions have a deleterious impact on justice. It is difficult to assess the impact because of the hugely varied circumstances that surround each case. This is why we need a clinical study by legal scholars on how bail applications are disposed of and whether discretion is exercised by courts under pressure from the media and a demanding public.