'Legal tests for grant of bail continue to remain the same'
The public sentiment even on bail to undertrials in corruption cases has unfortunately been coloured by extreme views on punishment for corruption.
The normal rule is bail, not jail. This was made abundantly clear by the Supreme Court in the 1970s. The only legitimate grounds on which bail can be denied to an undertrial - in cases not attracting the death penalty or life imprisonment - are the likelihood of witnesses being influenced, or documentary evidence being tampered with, or the likelihood of the accused absconding. (Of course, different considerations would apply if a conviction is recorded and bail is applied for at the appellate stage. If you are convicted, you have already been found guilty, so stricter considerations will apply.)
Recent scams have created a "hang the corrupt!" mentality in the public. They can't really be blamed because, after all, a sitting Supreme Court Judge not particularly known for verbal restraint famously remarked that the corrupt should be hanged from the nearest lamppost. Then came Anna Hazare with his demand that corruption should be punishable with the death penalty. The public sentiment even on bail to undertrials in corruption cases has unfortunately been coloured by extreme views on punishment for corruption.
But the judicial discretion on grant or refusal of bail is to be exercised on long-recognised tests. In the 2G case, the prosecution itself did not oppose the grant of bail to five accused, obviously because it did not have any apprehension that they would either influence witnesses, tamper with evidence or abscond - the three circumstances I mentioned earlier. As a matter of fact, the prosecution ought not to have opposed the grant of bail to any of those who applied for it: the distinction it sought to make between five-year terms and seven-year terms, and between those figuring in the main chargesheet and in the supplementary chargesheet, is artificial and illogical.
While the trial court is not bound to grant bail merely because the prosecution does not oppose the grant of bail, and is required to apply its mind independently, that discretion is required to be exercised judiciously.
In my view the trial court has seriously erred in declining bail. The view of the trial court that bail should be denied in the interests of a secure environment for the witnesses to testify is not justified. There should be a real apprehension that witnesses would be intimidated. We must remember that keeping a person in jail takes away his liberty and if he ultimately gets acquitted there is no adequate recompense for the period of lost liberty.
Denial of bail should not become a punishment before conviction. Let us not forget that, under the criminal law, there is a presumption of innocence until guilt is proved. And that guilt is to be proved beyond reasonable doubt. It must also be remembered that denial of bail impinges on the right to fair trial because the accused gets very limited contact with his lawyers and that too in a very controlled situation.
Therefore, a proper preparation of defence is hindered. As Justice Krishna Iyer said, "...It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded into custody. If public justice is to be promoted, mechanical detention should be demoted."
It is only of late that the courts in India seem to have become extra conservative in the matter of grant of bail generally, and particularly in cases of white-collar crime. This is regrettable, since the legal tests for grant of bail continue to remain the same.
The author is a senior advocate of the Supreme Court and a former additional solicitor general.
Recent scams have created a "hang the corrupt!" mentality in the public. They can't really be blamed because, after all, a sitting Supreme Court Judge not particularly known for verbal restraint famously remarked that the corrupt should be hanged from the nearest lamppost. Then came Anna Hazare with his demand that corruption should be punishable with the death penalty. The public sentiment even on bail to undertrials in corruption cases has unfortunately been coloured by extreme views on punishment for corruption.
Raju Ramachandran
While the trial court is not bound to grant bail merely because the prosecution does not oppose the grant of bail, and is required to apply its mind independently, that discretion is required to be exercised judiciously.
In my view the trial court has seriously erred in declining bail. The view of the trial court that bail should be denied in the interests of a secure environment for the witnesses to testify is not justified. There should be a real apprehension that witnesses would be intimidated. We must remember that keeping a person in jail takes away his liberty and if he ultimately gets acquitted there is no adequate recompense for the period of lost liberty.
Denial of bail should not become a punishment before conviction. Let us not forget that, under the criminal law, there is a presumption of innocence until guilt is proved. And that guilt is to be proved beyond reasonable doubt. It must also be remembered that denial of bail impinges on the right to fair trial because the accused gets very limited contact with his lawyers and that too in a very controlled situation.
Therefore, a proper preparation of defence is hindered. As Justice Krishna Iyer said, "...It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded into custody. If public justice is to be promoted, mechanical detention should be demoted."
It is only of late that the courts in India seem to have become extra conservative in the matter of grant of bail generally, and particularly in cases of white-collar crime. This is regrettable, since the legal tests for grant of bail continue to remain the same.
The author is a senior advocate of the Supreme Court and a former additional solicitor general.
