The story of a grandmother accused of kidnapping her granddaughter
The plight of Khairunisa, a middle-aged woman hailing from the Damoh district of Madhya Pradesh, who has been in judicial custody at Tihar Central Jail here since January 1, raises several questions.
These are questions about how the monetary bail process offers little relief to poor people and migrants; and questions about how legal aid is unavailable for accused persons at the time of their arrest and initial court proceedings.
Khairunisa had come to the Capital to visit her son-in-law, who lost his legs in a railway accident. She has been accused of kidnapping a child under Section 363 of the Indian Penal Code, a bailable offence. She has been granted bail thrice, but is yet to find her way to freedom.
Lawyers from Human Rights Law Network who are fighting her case say that in interviews Khairunisa gave them, she claimed she was arrested at Nizamuddin Railway Station on December 27 and her five-year-old granddaughter was snatched from her by the police.
However, according to court records, she was produced before a Magistrate only on December 31 last and remanded to one day in police custody.
“Khairunisa said the police suspected she had kidnapped the child with her. What we found was that the child was admitted by a Child Welfare Committee to a shelter home on January 4. So where was the child between December 31 last — when Khairunisa was produced before a court — and January 4? The child recognised Khairunisa and addressed her as nani. The child also named some common relatives whom we have now traced,” said Khairunisa’s lawyer Suma Sebastian, also a Catholic nun who offers legal assistance to Tihar Jail inmates.
No lawyer, no means to pay
On January 1, a Duty Magistrate at Saket court granted Khairunisa bail on furnishing a bail bond of Rs.10,000 and a surety of Rs.10,000. But with no lawyer to represent her, no means to pay the amount or to find a surety, she was sent to Tihar Jail for 14 days.
On January 15, she was produced before Metropolitan Magistrate Saumya Chauhan. The magistrate granted her bail, again — this time on furnishing a bail bond of Rs,15,000 and a surety of Rs.15,000 — despite a previous bail order for lesser amount on the court record.
Both the orders on January 1 or January 15 do not indicate if she had a lawyer to represent her or that legal aid was sought from the Delhi Legal Services Authority.
By then, Sister Suma appeared in court on January 22. The police demanded that Khairunisa subject herself to a polygraph test. The woman gave her consent.
On January 28, advocate Pankaj Sinha and Sister Suma approached Delhi High Court with a writ petition naming the Union Home Ministry, Delhi Police Commissioner, the Station House Officers of Hazrat Nizamuddin and Sunlight Colony police stations and a policeman of Sunlight Colony as respondents alleging that Khairunisa was tortured in custody.
The High Court while ordering status reports into the allegations directed that the woman be released on her furnishing a personal bond.
On February 11, Sister Suma approached the magistrate for bail. Ms. Chauhan ordered that Khairunisa be released on furnishing a personal bond.
But the police can release Khairunisa only if her antecedents in the Damoh district of Madhya Pradesh can be traced so as to ensure her appearance in court to face trial. On February 12, the polygraph test on which the police pinned their hopes on — to nail Khairunisa’s alleged offences — failed.
Senior advocate Colin Gonsalves said there were thousands of cases where poor people are languishing in judicial custody, some for several years, because they can’t meet the bail requirements.
“They can’t even raise small amounts to pay for bail .There is a phobia in our system that people are going to run away from the law. May be 10 per cent might run away. But because of this fear, 90 per cent are languishing in jails.”
Advocate Pankaj Sinha said while rich people were getting bail for heinous offences, the same facility was not available for the poor.
“All the stakeholders must sit together and devise ways and means to address this problem that poor under-trial prisoners face. Way back in 1978, Justice V. R. Krishna Iyer had said the monetary bail system had flaws. Some mechanism has to be devised to strengthen the personal bond system so that more and more judges use it to grant bail,” he said.