Bail, not Jail

Bapoo Malcolm 21 May 2015

The Supreme Court had reiterated that bail is a matter of right

In legal matters, courts have a right to detain a person. This can be due to non-compliance of court orders, possibility of escape and disappearance, or the chance that a person will tamper with evidence or threaten witnesses. There are, indeed, some very serious crimes where bail can be justly refused by the courts.

The Supreme Court had reiterated that bail is a matter of right. That means that the balance of convenience must be in the favour of the person charged. In other words, it is better to grant bail rather than refuse it. Of course, as in all things legal, this comes with a rider. Bail usually entails a money deposit with the court and a surety, a person who is responsible for the accused turning up when asked to.

This leads us to some intriguing thoughts. Suppose a man travels by train. He is too poor to buy a ticket; but the urgency of travel is very high. A child may be sick. A relative may have died. He received the message on his friend’s cell phone.

He gets caught for ticket-less-travel. He has no money to pay the fine. He is arrested and put in a lock-up by the railway police. He is produced, on the next working day, which may be three days later, before a magistrate. It is a small offence. The magistrate understands that, when caught entrain, the man can produce no surety. So, a monetary bail bond is imposed.

We now come to a catch-22 situation. The man is arrested because he had no money to buy a ticket and now he has to shell out money to get bail.

You be the judge. What would you do?

The Supreme Court has, again, come to the rescue of the common man. “Poverty can’t be a ground for keeping in custody an accused who is unable to furnish the bail bond,” the social justice bench, comprising Justices Madan B Lokur and UU Lalit, said. We feel that this is as path-breaking an order as any.

Moreover, the court has asked the legal aid people to make sure that this ruling is implemented all over the country. The sad fact is that, as of last year, 278,000 persons were languishing in jails across the country. Of these, 67% are under-trials; more than 186,000 are awaiting trial. Considering that the conviction rate in India is abysmally low, why are jails so overcrowded?

Under-trials are kept in a lock-up—a euphemism for a jail—for indefinite periods. The main business of the police is to quickly make out a case, a charge-sheet, and present it to the court. The court then decides on the bail, or whether to release the person. In myriad cases, though, the person rots in jail for a period longer than what he would have served, if he had been tried and convicted. For this, the cops are solely to blame.

Of course, if you are the high and mighty, you do not spend more than a night in jail. The privileged class suddenly becomes prone to ‘heart attacks’. The poor guys are rushed to hospital where they stay in comfort, till the day of reckoning; which never arrives till death or contacts solve the matter. Usually, by the latter.

Can anything be done about it? One cause of concern is public perception and pre-trial conviction by the sensationalising media. Once one reads in the newspapers of an arrest, along with juicy details, it is assumed that the person is as guilty as hell. This, often, translates into a fear in the minds of the authorities against early bail. More often than not, the bail plea is rejected. Better to err on the side of caution.

So, in spite of the hue-and-cry against the judges, there are some who uphold human dignity and act with sanity and fearlessness. We need our courts.

(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])

Comments

User

kanva.victims

5 months ago

https://timesofindia.indiatimes.com/india/bail-not-jail-norm-cant-be-applied-in-financial-scams-sc/articleshow/128534340.cms

Bapoo Malcolm

1 decade ago

Mr. Siroya,

Have already done so. But M Allzwell needs to get in touch with us. Will he/she?

Let's hope so.

Bapoo M. Malcolm

Bapoo Malcolm

1 decade ago

my email address is [email protected]

Bapoo Malcolm

1 decade ago

M. Allzwell,

M. Agitated,

Before I answer anything, would like to know your name and qualifications and if you are personally interested in the matter.

Next, as a responsible lawyer, I would like to hear the other side too. Finally, were you present in the court or is this hearsay?

As for someone being a CA of 15 years, it cuts no ice with me. I may be a lawyer of 100 years, but would still not understand accounts. To each his own.

If you wish to correspond, my email address is: .

Please give me all the details; especially if you were in court.
You may be right BUT you could be wrong. There are always two sides to the story. Audi alteram partem.

allzwell

Replied to Bapoo Malcolm comment 1 decade ago

Will name and qualification change the response, Mr. Lawyer. Personal interest is also not relevant as the topic is of ' when litigants argue in person'. The issue of 15 years of CA is only to highlight that when educated persons are so treated, one can imagine what would happen to other commoners. It is not to cut ice with any anyone. Since you raise the issue of the audi alteram partem, that is exactly the issue that how can a proceeding continue when the respondent's adjournment application is agreed to by other side (set of lawyers and counsels) based on medical certificate and the cause list shows that matter kept for issue of notice of direction....can an advocate take u- turn, not inform the Court that adjournment is agreed to and for Court to proceed with argument...where is the principle of Audi alteram partem ?? Or is it only for lawyers to quote and decide and break as per their wish and Courts to take cue. Please do not worry about who is the querist as I have also read all papers and the affidavits filed and also complaint made and the resultant order. Be assured that noone would write or state so irresponsibly.

MOHAN SIROYA

Replied to Bapoo Malcolm comment 1 decade ago

My sensitized feeling pushes me to request Bapoo Malcolm and moneylife help source to please help AllZwell.

Bapoo Malcolm

1 decade ago

Bapoo Malcolm

1 decade ago

True that some judges are not that patient with pleaders in person. There is a reason. Like all institutions, courts function to certain rules. A non-lawyer may not be up to it and may not even understand why he is not being heard. But most judges are understanding; up to a point. They have to meet schedules, too.

A recent case at the State Consumer Redressal forum comes to mind. Mr. R Chavan, Retired Judge of the high court was so helpful to a person-litigant as to be almost be fatherly. But the person in question had no documents to prove any thing. He said that he had given all the originals to the other side! Now, whom does the court believe?

Bapoo M. Malcolm

allzwell

Replied to Bapoo Malcolm comment 1 decade ago

The person is a chartered accountant with 15 year persons and not ignorant. The CA has also appeared in tax tribunal. Surely the litigant knows. Further the issue here is not even of argument but an outright flouting of the rules and norms, first by the advocate to have insisted on argument having agreed to the adjournment without informing the Court and for the Judge to have gone beyond the cause list and heard the matter and told the teenage boy to take notes in sexual harassment case of his mother and then not to have recorded any of this in the roznama of that date and also in the order. I am asking the advocate here to please explain which court rule and which code of ethics of advocates allow this ? And under what circumstances is a Court allowed to direct a teenager to take notes. If matter of so pressing then why did the Court not appoint an amicus curaie..the room was packed with advocates....The fact is that even any advocate would have sought a date and the would have defeated the ill- motive of the oter side advocate to (A) take advantage of the absence of the respondent and (B) cause trauma to the teenager. I repeat that this has nothing to do with the litigant in person as the person was absent and the medical certificate said " RBC only 7.4 and chest pain, advised 2-3 weeks bed rest". The kid was forced into this situation as the litigant was in person and needed someone to submit the application.

allzwell

Replied to Bapoo Malcolm comment 1 decade ago

allzwell

Replied to Bapoo Malcolm comment 1 decade ago

allzwell

1 decade ago

Would a litigant's forum help ?

MOHAN SIROYA

Replied to allzwell comment 1 decade ago

None can help I suppose .Very Unfortunate? No, it is a fait-accompli for most of Indians who dare to contest/argue their own case in H C Or S C . Yes, as rightly pointed out by Bapoo Malcolm, in lower courts or in Consumer Forum it is possible and happening , a silver lining ,thanks to our system

allzwell

1 decade ago

Being on the point of ' argue in person' how many judges are keen to hear the in- person litigant when other side is flanked by a battery of high profile lawyers. I have witnessed a situation where as the in- person litigant was unwell and backed by a medical certificate, the litigant's teenage son who had gone to merely handover the adjournment application ( backed by a medical certificate) and agreed via sms by other side advocates, the judge still went ahead and heard the matter as the other side counsel took a u- turn and insisted on arguing to take advantage of the absence ( as an after- thought) and also made the teenage son sit and take notes of the case of his mother's sexual harassment though the child pleaded that he was not a student of law. The cause list of that date shows that ' matter listed for direction - to issue notice'. The child was made to hear but say nothing for 2 hours. Prior to this, on 4 dates the other side advocates took adjournment which is also a matter of record. The litigant objected in a detailed affidavit and that was not even taken on record. Is this justice delivery ? Why should there be no CCTVs as that is the only way that such incidents and violation of fundamental rights can be noted as evidence.

Bapoo Malcolm

1 decade ago

Have not followed the Salman Khan case very carefully. Personally, do not like the guy. But let us give the devil his due. An accident it was. Rash and negligent driving, yes. Homicide? Not to my mind. It needs mens rea (guilty mind), a motive, anger, revenge, a positive frame of mind, mindful of the type of injuries that can be caused. Sometimes advocates go overboard; on both sides.

I was 16 years old when my friend died in my arms, killed in an accident by a drunk taxi driver, at 6 in the morning. Bombay was dry then. The accused got 6 months. Why? Under the influence of alcohol, it was argued. It made no sense to me then.

The law distinguishes between a premeditated act and an unplanned one. The former is punished with greater force. In Salman's case, this was the reason for the bail, I am sure.

If the blackbuck story is true, he should be sentenced with all the power of the law. He knew what he was doing.

Consider the Jessica Lal case. The lawyer cooked up some story of a tall 'Sardar'. No one took it seriously. If, instead, the accused had pleaded the truth about being punch-drunk, he would have fared no worse than the taxi driver. But then, lawyers do get oversmart. Maybe legal aid may have been better!

Next, coming soon, more poetry from Salman's dad?

My Dad, no poet, would have said, "Be a man and take your punishment". But they don't make them like that any more.

Bapoo M. Malcolm

MOHAN SIROYA

Replied to Bapoo Malcolm comment 1 decade ago

His Dad Salim Khan ? Well, it is surmised in inside circles that the last minute of drama staged by Salman Khan's driver to accept belatedly that he is now having a change of heart and accepts that he was driving the car and not the star; was the script written by Salim Khan, his Dad.. And had Salman Khan accepted his 'Mistake' and had shown any remorse for the loss of 'Two Lives'( am including his bodyguard cop too)and a few gravely injured for life, perhaps the Trial judge could have been more considerate in awarding sentence. Additionally, he would have earned laurels from million others, who have no sympathy for him now.

MOHAN SIROYA

1 decade ago

Thanks to Bapoo Malcolm for keeping human liberty at the core. In his own example of a pauper guy unable to furnish even a bail bond, he or persons of my ilk will give him bail. Otherwise will this happen in present scenario, irrespective of S C verdict.
He is right when he says High Contacts pay a vital part. But is the value of moneybag or a celebrity status less ? Good at heart Sanjay Dutt and his illustrious family and high contacts played a big role in keeping him out till 17 years. Draconian TADA was withdrawn and ultimately for a 'Mistake' he had to undergo jail for the minimum period as per law. Salmankhan, having been sentenced by two trial courts( Jodhpur & Mumbai) is enjoying liberty ,again with money power and mass craze. Is there any case in history where a person jailed by sessions court for a grave offence of Homicide, can get bail and suspension of sentence within 200 minutes from HC? Bravo Money power to get the sharpest legal heads to bail him out. So verdict of Supreme Court would also require money to get a person his liberty. Nothing comes free in this country.

Bapoo Malcolm

1 decade ago

One does not need a lawyer to argue one's case. It can be done "In person". But if one messes up his own case, that remains his problem.

The poor can ask for legal help; how good that can be? Well, no one can be sure. But it is available.

The 'nexus' that is mentioned may be true, but the losing side, or its lawyer, is quick to blame the system. Sometimes it may help to admit that one had a bad case to begin with.

Judges are selected directly, especially to the High courts and the Supreme Court. But they need to be excellent lawyers first and have some length of practice.

Bapoo M. Malcolm

PPM

1 decade ago

The legal system need to be revamped and common man should be allowed to argue his case in front of the judge.

Judges need to be selected directly and not from the pool of lawyers as most of the cases dragged too much due to the lawyer-lawyer-judge nexus.

MOHAN

1 decade ago

It was Justice V.R. Krishna Iyer who had laid down very important principles like ‘jail is the exception, and bail is the rule’ decades ago and in his judgements he gave a very strong human touch to criminal law.