SC upholds ‘bail over jail’ principle, but entire arrest-and-trial ecosystem needs to be transformed

One can’t expect transformative justice even after this latest SC ruling. The mindset of the entire lot of trial courts countrywide needs a transformation as much as that of the investigating agencies

Supreme Court
Supreme Court
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Sushil Kutty

India’s well-lit prisons are home to lakhs of under-trials languishing in them for years on end because the courts of the land have no time to spare for the mountains of cases they are saddled with. And because investigating agencies challenge all bail requests, as also all bail orders. To the defence lawyers and the families of the accused, it is frustrating, to say the least, but to the under-trials, it is more days and nights in the stifling jail conditions.

But now, there may be a ray of hope. The Supreme Court on April 8 took exception to the manner in which the country’s investigating agencies took the system for granted and challenged all bail orders. The top-court dismissed an appeal of the Serious Fraud Investigation Office (SFIO) that challenged the anticipatory bail granted to an accused in a financial fraud case.

When dismissing the appeal, the apex court asked a most important question — when will you stop thinking that all accused need to be jailed during the probe? The bench of justices Sanjay Kishan Kaul and MM Sundresh had previously expressed reservations over the perfunctory manner in which people are arrested and locked up.

Don’t forget that under the Modi dispensation, Central investigative agencies have been on their toes from day one, forever investigating politicians of rival political parties, with quite a few of them ending up behind bars with no hope of getting bail in a hurry.

“Do you want everybody behind bars? Stop thinking that everybody should be behind bars. Somebody has been granted bail and stringent conditions have been put on him while granting bail. Why do you want to keep swords hanging over them? How is the impugned judgment (passed by Allahabad High Court) wrong?” the court asked.

The government sought time to reply, think up excuses, but the court said ‘no’ and dismissed the SFIO appeal.

This particular case involved a corporate entity and the Ministry of Corporate Affairs (MCA). The Allahabad HC had granted anticipatory bail to one of the accused against whom the SFIO had knocked on the doors of the Supreme Court.

Some may think the apex court’s observation, and order, as a breakthrough. That it might be, but not for the tens of thousands of under-trials languishing behind bars in jails countrywide. For them, nothing but a bar-splitting earthquake will come to their rescue. Judges and justices are not always easily moved by the plight of under-trials.

As per a set of guidelines passed in 2021 by SC, if an accused is cooperating with the investigating agency and had not been arrested, that accused should be left free even after the chargesheet is filed. And the trial court should not refuse a charge sheet just because the accused was not behind bars, or hadn’t been produced in court.


But the reality is that despite the SC's many observations on this issue, trial courts don’t display any alacrity in following the top court’s directions to “encourage bail”. The mindset of the entire lot of trial courts countrywide needs a transformation as much as that of the investigating agencies. Come to think of it, the entire arrest-and-trial ecosystem needs to be stood on its head.

Ordinary folks cannot expect transformative justice even after this latest ruling from the Supreme Court. Right-wing journalist Arnab Goswami had got bail with the Supreme Court letting it be known that bail is the rule, and jail the exception. Arnab drove out of Taloja Jail in a blaze of self-congratulatory glory.

But did “bail is rule” apply in the case of Anil Deshmukh, and/or Nawab Malik subsequently? Sure, Aryan Khan got bail, but one of the same set of Central investigating agencies is against bail for Deshmukh, and Nawab Malik.

Yet, defence lawyers now have one more precedent to cite though not all judicial officers stand by precedents when pronouncing judgement.

The SC’s April 8 ruling, while dismissing the SFIO appeal, didn’t forget to mention that investigations are long drawn affairs and that it would be a travesty of justice if under-trials have to languish in crowded jails for years on end.

(IPA Service)

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