The Dimapur Bar Association, while taking strong exception, however without prejudice would like to discourse in brief about the topic on the provisions of law with special reference to ‘Bail’ vis-à-vis the press statement dated 11th September 2019 “However, to our utter dismay, it is found that, while the executive force perform their duties by apprehending criminals, the Judiciary grants bail to the criminals without any difficulty. This has greatly demoralized the Police forces (executive) to effectively and sincerely perform their duty” (Sic) which was addressed to the Chief Minister of Nagaland by the Public Action Committee (PAC) under the aegis of the Naga Council vide its representation dated 09.09.2019.
It is no doubt that the society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the individual and the society with no exception to the crime of ‘Extortion’ in our Naga Society. The law of bails dovetails two conflicting interests. On the one hand, the requirement of shielding the society from hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of personal liberty in a democratic society governed by rule of law as guaranteed by our Constitution under Article 21.
Coming to the provisions of bail under section 436 to 439 Cr.P.C, the courts exercises its jurisdiction for granting of bail to arrested accused persons under section 437 and 439 of the Cr.P.C. Section 437 of the Cr.P.C. provides that, ‘When bail may be taken in case of non- bailable offence;
(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do or for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.’
On perusal of the clause (i) & (ii) of sub-section (1) of section 437 Cr.P.C. the Courts have ample of jurisdiction to release the accused on bail, if the offences involved are not offences punishable with death or imprisonment for life as per clause (i), also the antecedents of the accused persons are taken into consideration as per clause (ii) wherein the accused persons may be released by the courts on bail if he had not been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions. Moreso, the courts are also fettered with powers to even release the accused persons referred in clause (i) or clause (ii) as provided in the provisos of section 437.
The scheme of the legislature is clear that the law of bail is an indefeasible right provided to its citizens and jail comes only after conviction. So also the Hon’ble Supreme Court in State of Rajasthan, Jaipur Vs Balchand @ Bailay, Justice Krishnaiyer held that, ‘the basic rule may perhaps be tersely put as bail, not jail’
Even in a bench led by Justice Madan B Lokur suggested to make bail a rule and jail an exception, the Bench also emphasized that “a fundamental postulate of criminal jurisprudence is then presumption of innocence”. “Another important fact of our criminal jurisprudence is that the grant of bail is the general rule and putting person in jail or in a prison or in a correction home is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.”
The courts while exercising the powers for granting or refusing bail under section 437 or 439 Cr.P.C., firstly hear the parties i.e. both the defense counsel for the accused person and the prosecution on behalf of the law enforcing agency and also the records and evidences gathered by the police personnel are all perused, examined and on satisfaction either refuse or allow the bail. Also while allowing bail, the court takes into consideration of the terms and conditions as laid down vis-à-vis the principles laid down in catena of judgments which are as follows: whether the presence of the accused could be secured during the trial; or whether there is chance that the accused would tamper with the evidences or intimidate the witnesses; after considering all these, the court grants bail. The granting of bail to the accused persons are either during pendency of investigation or pendency of trial and does not mean that the accused persons are absolved of all the charges. It is only after the conclusion of the trial, the accused person is either acquitted or convicted depending on the evidence adduced by the trial court.
To sum up, in order to convict or acquit the accused persons in general or accused persons charged for offence of extortion in particular solely depends upon the quality of evidence gathered during the investigation and appreciating of the evidences after the trial. So also, releasing the accused persons on bail is the discretion of the courts guided by the procedural laws and guidelines laid down by the Apex Court. One of the reasons for punishing the accused persons by imprisonment is to deter that person and also the society from indulging in such criminal acts which if committed the accused would serve the punishment after all the evidences are gathered and a proper trial is carried out. However, the PAC of the the Naga Council statement on the Judiciary granting bail to the criminals without any difficulty is an unfortunate, irresponsible and ignorant statement put forward without checking into the process and procedure that is already laid down by the Apex Court and the legislature. And the accused persons, in particular the accused persons charged with the offence of extortion being granted bail should in no way be a reason to demoralize the Police forces to effectively and sincerely perform their duties as the greater duty is on the investigating agency to investigate and bring evidences to court so as to convict the accused persons if they have actually committed the crime of extortion.
Imti Imsong
President, Dimapur Bar Association
Hukavi Zhimomi
Secretary, Dimapur Bar Association
