The curious case of jail-bail calculus

Lord Denning noted in the celebrated case Goriet v Union Postal Workers - ‘Be you ever so high, the law is above you’.

By adding a proviso, ‘except if you are resourceful enough’, the Indian juridical system seems to have adopted a modified version of this doctrine. Conviction at 2 pm and interim bail at 4 pm is not a routine exercise, especially if the ground claimed and allowed was merely that a copy of the order was not supplied.

The Bomaby High Court (HC) instead of declining the petition and ordering the trial court to make the copy available free of cost immediately, allowed it. It is not arcane knowledge that a bail petition should be allowed in appeal only after carefully ascertaining the grounds of conviction. Here, without the copy of the order, an interim bail was granted straightaway. A direction could have been issued alternatively to continue the custody till a copy was given with conviction to follow thereafter.

As of now, the conviction stands suspended till the disposal of appellate proceedings which is usually done to make the appeal meaningful with certain exceptions(Bhagwan Rama Shinde Gosai & Ors v State of Gujarat).  Nevertheless, in a country where litigants largely suffer from the ‘tareekh pe tareekh’ defect, we have amongst us a citizen who, through integrated investment in lawyers, successfully evaded punishment completely even after 13 years of trial within 2 hours of conviction.

Whether he was driving the vehicle (affirmed, Para – 128), whether he was holding a valid Driving Licence (denied, Para - 388), whether he was under influence of alcohol (affirmed, Para – 376,377) and acceptance of the tyre burst theory (declined, Para - 284) are the four main pillars on which para 417 of the trial court judgment found him guilty after intense scrutiny beginning right from Para 65. When a competent court of law adjudicates a case with such depth, the power (read – limited powers) of appellate court at the post conviction stage including the power to suspend the sentence u/s 389(3) of CrPC, have to be exercised with greatest caution to avoid transformation of appeal into fresh trial.

In Atul Tripathi v State of UP, the Supreme Court held that if the appellate court is inclined to suspend the sentence, it shall  judiciously consider all the relevant factors like gravity of offence, nature  of  the crime,  age,  criminal  antecedents  of  the  convict,  impact on public confidence in court, etc, before passing an order for release.

Serious offences

The Supreme Court further held in Navjot Singh Sidhu v State of Punjab that the person seeking suspension of the conviction should specifically draw the attention of the appellate court to the consequences which may arise if the conviction was not stayed, without which, stay cannot be granted. In Masood Ali Khan v State of UP, it was held by the Apex Court that the courts will suspend an accused's sentence only in exceptional cases and such a relief should not be extended in serious offences like murder, attempt to murder, rape and dacoity.

On a comparative analysis of the two orders, first being a thorough conviction order on merits and the other one suspending the first and posting it for re-adjudication, firstly, non availability of a copy of the full order did not create an inevitable ground for interim bail and secondly, the gravity of offences, criminal antecedents and conduct of the offender undeniably called for jail. Without going into detailed reasoning by the fact finding court, an interim bail should not have been granted.

Further, generally, mere suspension of the sentence does not craft anything in favour of an offender but it plays a major role where doubts have been registered against the findings of the trial court. The HC order, while registering doubts on the applicability of correct charges, has made it abundantly clear that it will re-appreciate the evidence including relevancy of non-examination of Kamaal Khan. Most importantly, application of Sec 304-II instead of Sec 304A will be looked into for re-evaluating the vital aspect of ‘knowledge’. 

George Orwell wrote in Animal Farm, ‘All animals are equal, but some animals are more equal than the others’. Our constitution commands that all citizens are equal before law. However, as we have witnessed over the years, this ductile equality doctrine has been exactly stretched to what Orwell pointed out. It is important to highlight that this case attracts attention to how the influential can evade punishment. A petition is pending before the Supreme Court seeking guidelines for speedy and influence free trial against the resourceful in Virendra Kr Ohri v Union of India. We, as pen-pushers, expect receiving a set of binding rule book in it to avoid such instances in future.

Hoping for the best, fingers crossed!

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