Anticipatory bail and justice

THE SUPREME COURT observed recently that the mere filing of a chargesheet by an investigating agency or cognisance of a complaint by a court cannot in itself be a ground for declining anticipatory bail to the accused. In January this year, it noted that denial of bail should not be read as a licence for detentions. In 2002, it ruled that the question of granting bail did not arise in the case of those who absconded from the normal judicial process. There is a clear message in all of these observations for the lower judiciary, the police and the investigating agencies. Each of these arms of justice and law enforcement has a distinctive and well demarcated domain. The National Police Commission underscored the need for greater independence of the different departments. Two landmark judgments of the Supreme Court in the 1990s also held that the functional autonomy of different wings of the criminal justice administration was of paramount importance for a humane system of justice delivery. But the reality on the ground is quite different: illegal detention, intimidation of the accused, extraordinary delays in securing bail, and rampant corruption at various levels.

In a more conducive environment, the high courts and the courts of sessions should have been able to apply the Criminal Procedure Code (Cr.P.C.) far more effectively. For the Cr.P.C. is categorical that bail should be denied where there is reasonable ground to believe that the accused is guilty of offences punishable with a sentence for life or the death penalty. Those who have been previously convicted on two or more occasions of non-bailable and cognisable offence also do not qualify. At the same time, the need for identification of the accused by witnesses during investigation cannot be a ground for denying bail. Thus the overall accent in the Cr.P.C. is clearly on preventing undue harassment of the accused without compromising the interests of justice. Despite these explicit provisions, the lower judiciary has singularly failed to discharge its responsibilities under the law to protect the interests of the accused. On the contrary, in failing to issue timely bail, the courts may be objectively aiding the powerful and the mighty. The lower courts should be sensitive to the fact that the use of the power of arrest and detention is, to begin with, far too extensive. It should then not be difficult to recognise that the practice of persons apprehending arrest approaching the courts with a plea for anticipatory bail is but a natural corollary.

In the 1980s, the National Police Commission found that well over 60 per cent of arrests in the country were unnecessary and unjustified. It also noted that about 40 per cent of the expenditure on prisons was on those who should not have been detained in the first place. The reality of abuse of the power of arrest and detention without trial needs no further proof. At the root of this state of affairs is the total lack of accountability on the part of the police administration. Although these issues have been highlighted from time to time, successive governments have done little to implement the Commission's enlightened recommendations. Foremost among these was the need to insulate the investigative wing of the police from the executive, leaving the preventive and service-based functions under the superintendence of State Governments. The overall impact of such a separation would be considerable in terms of greater efficiency and transparency in the police administration. That however seems a remote prospect.

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