DailyPost 2785

Arrest, bail, jail, police custody, judicial custody, interim bail, bail arguments, bail conditions, prosecution, defence, SG, ASG et al have become the narrative of the nation. Bail is the norm and jail an exception is the legal convention, but what we see and hear seems to give a totally different feeling. The country hangs in the political balance of a legal tussle between bail and jail. It has impacted every political party and a large number of leaders. A person accused of a crime entailing maximum punishment of seven years should not be arrested “mechanically.”

Are we even mature enough to use that discretion? The legal interpretation can only be one, that in such cases arrests need to be made in rare cases, if the express situation literally forces you to do that, to fulfil your legal / investigative responsibilities. Historically, the situation is naturally titled towards arrest. Far from the legal proposition that arrest is done to facilitate investigation and keep a criminal of heinous crimes in geographical check. The accused should not be able to destroy evidence or play around with witnesses. In a large number of cases the accused is required for custodial interrogation leading to clues, searches and seizures, leading to achieving major investigative milestones in the case. Terrorists, organised crimes, large scale trafficking and now even hacking gangs need to be put under arrest and the law provides for it.

When arrest is treated as punishment both by the agencies and more so by the people, the actual operation of law becomes totally different as has been the case in the country for a long time. Sections of law are applied for the non-bailability quotient quite a few times and not based on the true ingredients of the crime. Getting the accused arrested is a victory for the victim, complainant, investigative agencies and even the government. For everyone it is a punishment delivered. At times even laws are enacted with provisions that literally do not allow for bail. How constitutional are those is a debate for another day.

If you arrested in any of those laws, even Gods will not be able to save you. The legal fight against bail becomes the single most important pre-occupation of the government. The battery of government lawyers arguing against bail with dedication, very rarely found at the time of the trial. Still, whether the accused for investigation purposes or would he hamper investigation if left outside, is barely the cornerstone of the debate. The lower judiciary in its wisdom keeps rejecting bail petitions, some being finally granted by the Supreme Court, with remarks which do not speak highly of arrest and bail regime. Timing of arrest is suspect at times, in many other cases accused’s positioning decides arrest or otherwise or how seriously the investigative agency would fight against the bail application. At times, even with the best of government legal eagles in operation, bail is granted. Where we have lost the legal dictum, justice should not only be done, it should seem to be done as well. The former itself is in doubt.

Sanjay Sahay

Have a nice evening.

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