Bail basics: On Chidambaram case

The Supreme Court has restated the basic principles of granting bail while ordering the conditional release of former Union Minister P. Chidambaram in the INX Media ‘money-laundering’ case. That these principles required fresh iteration indicates a problem in the way courts have been handling certain applications for bail in recent times. In a case largely turning on documentary evidence — and one being probed by two agencies concerning the same transactions — it was quite astonishing that the former Minister was incarcerated for over 100 days, even after being subjected to prolonged custodial interrogation. As rightly pointed out by the three-judge Bench, bail remains the norm and its refusal the exception. The denial of bail is directly related to the possibility that a remand prisoner who has been released may not appear before the court to face trial. As securing the presence of a suspect is the primary ground for keeping a person in judicial custody prior to trial, there is no reason to jail someone who is unlikely to abscond. Another valid reason is the potential for a person to tamper with evidence or influence and threaten witnesses. Therefore, courts considering bail are required to conduct a triple test to find out if a person is likely to hinder the trial by fleeing from justice, tampering with evidence, or influencing witnesses. The apex court has conceded that sometimes the gravity of the offence may be an additional consideration, but underscored that it cannot be used to deny bail based on allegations yet to be tested in a trial.

A disconcerting trend in the superior judiciary has emerged in recent times, wherein material provided in ‘sealed covers’ has been relied upon for adjudication, despite the content not being available to all parties. The Supreme Court has now formally disapproved of courts using purported material contained in sealed cover to record one-sided findings. In a principled intervention, it has deprecated the High Court treating prosecution claims submitted in a sealed cover to make some observations on the merits of the case against Mr. Chidambaram. The allegations contained in the confidential material are indeed grave, but the onus remains on the prosecution to prove them. What the Supreme Court was concerned about was whether such untested material could be used as a ground to deny bail. It is a matter of concern that larger issues of due process have to be revisited each time a public figure is arrested in the course of investigation, giving rise to a perception of political vendetta. Investigative agencies would be better advised to focus on gathering relevant material and moving for an early trial. The legal system is already in place for expedited trial against political leaders through special courts. There is no necessity to vitiate the process through dramatic arrests and prolonged pre-trial imprisonment.

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Printable version | May 15, 2021 10:20:02 PM | https://www.thehindu.com/opinion/editorial/bail-basics/article30195231.ece

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