NORM SHOULD BE BAIL ON APPEAL, NOT ON ANTICIPATION

Subhas Chandra Pattanayak

Laws of the land have made all triable offenses bailable. Offenses shown as non-bailable are also bailable at certain stages if the appropriate courts are moved by the accused person(s). So in granting bails to the alleged looters of Orissa mines, the concerned judge of Orissa High Court cannot be said to have acted ultra vires.

But when bails are granted to a gang of suspected scamsters, who, in Vigilance Director’s informed opinion, are involved in loot of Orissa mines, it somehow looks bizarre and makes one feel that there should be restriction on grant of bail on anticipation in the Higher Courts.

The issue at the crux is that the High Court of Orissa has granted bails to a gang of eight persons – seven officials and one private operator – all accused by the State Vigilance Police of involvement in loot of Orissa mines and remanded to judicial custody by an interim order of a Chief Judicial Magistrate, over and above anticipatory bail granted earlier to a private operator and de facto bail granted later to the Director of Mines.

According to the Director of Vigilance Sri Aup Patnaik, his sleuths have got materials that are indicative of involvement of these fellows in the mines scam.

This accusation is so very severe and the loot of Orissa’s mines is so very discernible that peoples feel, had the High Court not granted bails before at least the designated vigilance court goes through the charge-sheet(s) and cogitates if grant or denial of bail would be fair and proper, it would not have been violative of justice or detrimental to the dignity of the Higher Judiciary.

The Jails are overcrowded with under-trial prisoners simply because, bails are denied to so many accused persons in this land.

Denial of bail to the accused for very long time in appropriate courts, even in the High Courts as well as in the Supreme Court of India is not rare.

Not rare even instances of quashing of bails granted in lower courts when appealed in the higher courts.

The Orissa High Court has umpteen times refused to grant bails, even on appeals, holding the concerned cases “grievous”. Are the offenses against the State perpetrated allegedly by the gang that the Vigilance Police has spotted to have committed loot of Orissa mines not grievous?

How should one read the prompt grant of bails to the said gang that has obviously acted against the State by being involved in loot of Orissa mines, in the words at least of a man who heads the Vigilance Police of the Province, is something that baffles the public.

Silence of Chief Minister Navin Patnaik of Orissa over enlargement of these accused persons on bail has made the matter murkier.

His government is marked as a habitual litigant for having no hesitation in dragging the poor employees to the Supreme Court as and when any of them gets an award in his / her favour in the Administrative Tribunal or in the High Court.

So the Government’s silence over grant of bails to all the accused looters of Orissa mines makes one suspect that the government was clandestinely in favor of the bails so granted.

This, when read with the bails really granted by a judge of Orissa High Court, makes one wish that there should not be any scope for any judge of any high court or of the supreme court to allow any accused or suspected offender any anticipatory bail till the alleged offender exhausts the appropriate lower court in the matter of application for bail.

If allegations are so apparently motivated and the accusing authorities are so discernibly prejudiced or set to cook up the allegations that, unless promptly protected, an innocent person may be injured due to time consuming adjudication in the lower stair, then only the higher court should step in and allow bails with a speaking order as to why it thought it prudent to grant the bails bypassing the designated court of hearing. Otherwise, peoples privileged with power and position and purses and resources to engage wielders of legal jargon in their support, will always succeed in hoodwinking the State.

In the instant case the bailed out persons are obviously enjoying Chief Minister Navin Patnaik’s patronage. Otherwise, the State Government would certainly have gone to the Supreme Court seeking quashing of the bails granted to the gang.

So, it can be said that the bailed out persons are such well connected persons that, if they like, they can tamper with documents yet to be relied upon by the Vigilance Police and tame the time to their own advantage in such a way that prosecution may ultimately fail to prove the points.

On the other hand, as is natural, the Vigilance Police, if not making a drama of raids and raising of accusations against the gang to keep the real culprit out of public gaze, would feel demoralized over the grant of bails to the accused gang inasmuch as this action is capable of being read as judicial rejection of the Vigilance claim of prima facie proof of involvement of the gang in the mines scam.

It is a serious phenomenon the judiciary should ponder over.

It would be better if the Orissa High Court or the Supreme Court make a review of the bail-orders that have set free the mines scamsters, as the Vigilance Police, if it is not acting as the CM desires but working as ethics dictate, may be feeling demoralized over the debacle at the beginning of the case and the same feeling may continue to affect the sleuths who so painstakingly have unearthed the scam so far.

The accused gang whose involvement in the crime against the peoples of Orissa in particular and of India in general has prima facie been seen by the Vigilance Police through perusal of documents seized and on spot visit and verification, should be subjected to the jurisdiction of Vigilance Courts and if bails are denied to them there, then only let them come in appeal for bail afresh. Unless the accusation seems cooked up and the accusing investigators appear infested with ill motive and the judge in the appropriate lower court looks vitiated with prejudice against the said offenders, the High Court should not grant bails to the offenders.

The higher judiciary should appreciate that it is too precious to be used by officially located offenders to obtain anticipatory bails in any case. In the interest of the sovereignty of the peoples, justice system should not be allowed to make mockery of justice at any point of time, anywhere by imposing its orders on lower courts before they even peruse the charges.

Bail on appeal, not on anticipation should be the guiding norm.

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  1. ‘Half Of The Last 16 Chief Justices Were Corrupt’

    The decision to declare assets is a big victory. Supreme Court lawyer Prashant Bhushan tells SHOMA CHAUDHURY what else is rotting in our judiciary

    In public interest Prashant Bhushan has championed the fight for judicial accountability

    It’s great judges have agreed to declare assets. But will it really help? Politicians do it too.
    This decision is very welcome, even if it’s only happened under public pressure. It is proof of the power of public opinion. And even though declaring assets is a relatively minor aspect of judicial accountability, it will help. If a judge misdeclares his assets, there’s a chance someone might know he has particular properties he hasn’t declared, and may point it out. One could then examine if these can be explained within their legal income.

    The debate around judicial accountability has got really hot. Are there watershed events that triggered this?
    Not in my own perception, but I think for the public there were two watershed events – the Chief Justice Sabharwal case (where there was an allegation that Chief Justice YS Sabharwal’s orders to demolish commercial outlets in Delhi directly benefited his sons, who were partners with some mall developers) and the Ghaziabad Provident Fund scam. Both these cases got wide media attention. A 2006 Transparency International report said the judiciary in India is the second most corrupt institution after the police.

    You’ve been at the forefront of the judicial accountability campaign. Why?
    I have been witness to judicial corruption in the courts for a very long time. I know decisions are passed for extraneous considerations, but it’s difficult to get hard evidence of this. There have been highprofile impeachment attempts, for instance, on Justice Ramaswamy, Justice Punchi and Justice Anand. Yet, they all went on to become chief justices. In my view, out of the last 16 to 17 chief justices, half have been corrupt. I can’t prove this, though we had evidence against Punchi, Anand and Sabharwal on the basis of which we sought their impeachment.

    What is the root cause of judicial corruption then, and what are your key demands?
    Our key demand is an institutional mechanism for entertaining complaints and taking action against the judiciary. Nothing exists today. Everyone realises impeachment is impractical. To move an impeachment motion you need the signatures of 100 MPS, but you can’t get them because many MPs have pending individual or party cases in these judges’ courts. In the impeachment proceeding against Justice Bhalla, the BJP declined to sign because LK Advani had been acquitted by him in the Babri Masjid demolition case. Such political considerations prevail all the time. An in-house procedure was set up in 1999, post a chief justices’ conference in 1997, but that too is activated only selectively. For example, the complaint against Justice Bhalla was that he had purchased land worth Rs 4 crore at Rs 4 lakh — approximately — from land mafia in Noida. This was based on a report from the DM and SSP of Noida. This land mafia had several cases pending in courts subordinate to Justice Bhalla. Another complaint was that in the Reliance Power matter, though his son was the lawyer for Reliance Power, Justice Bhalla constituted a special bench while he was the presiding judge in Lucknow. He sat in the house of one the judges at 11pm at night to hear their case and pass an injunction in their favour. We asked Chief Justice Sabharwal to initiate proceedings against Bhalla, but he refused.
    Similarly, Justice Vijender Jain decided the case of a person whose granddaughter had been married out of his own house. He was a close friend but he still heard and decided the case in this person’s favour. The point is, in these cases though very specific complaints were made to the then Chief Justice of India (CJI), he didn’t do anything to activate the in-house procedure. All these judges have gone on to become chief justices. Bhalla is still chief justice of Rajasthan; Virendra Jain became chief justice of Punjab and Haryana.

    What’s the answer?
    The first problem is that there is no independent institution for entertaining complaints and taking action against judges. There has to be a National Judicial Complaints Commission — independent of the government and judiciary. It should have five members and an investigating machinery under them. The second problem lies in the Veeraswamy judgment, which ordered no criminal investigation can be done against a judge without prior written permission of the CJI. That’s what happened in Karnataka. There was a complaint against several judges visiting a motel and misbehaving with women. When the police officer came, the judges threatened him and said no FIR could be filed against them because they were judges. This happened in the Ghaziabad Provident Fund case as well. The investigation is stumped because the CJI hasn’t given permission. We have to get rid of this injunction.
    The third problem is the Contempt of Court Act. Today, even if you expose a judge with evidence, you run the risk of contempt. Judges are even seeking to insulate themselves from the RTI. We have to get rid of the Contempt of Court Act – not the whole Act. Disobeying the orders of the court is civil contempt – that should remain. Interfering with the administration of justice is criminal contempt – that too should remain. What needs to be deleted is the clause about scandalising or lowering the dignity of the court, for which Arundhati Roy was sent to jail. Finally, there is the problem of appointments. Earlier, judicial appointments were made by the government, which was bad enough. Now, by a sleight of hand, the Supreme Court has taken the power of appointments to itself. Earlier there were political considerations; now there are nepotistic ones.

    Again, what’s the answer to that?
    We need an independent Judicial Appointments Commission, which is independent and works full time, and follows some systems and procedures. Eligibility lists should be prepared and comparative merits debated and evaluated. You can’t just pick judges arbitrarily, and let people know about it only after the deed is done.
    There is still no independent body to process complaints and action against judges

    What are the best practices and conventions elsewhere?
    We should at least have Public Confirmation hearings like in the US. In the Senate Judicial Committee, you have hearings where any public citizen can give evidence about the background of a judge that has bearing on their appointment. This is being fiercely resisted here.

    Do any counter arguments hold?
    None that I can see. The judges say all this will compromise their independence. Unfortunately, they are equating the independence of the judiciary with independence from accountability. Independence of the judiciary was meant to be independence from the political establishment, not from all accountability.

    Are there other ways in which judicial corruption manifests itself?
    There are so many. There is Justice Kapadia who decided on the Niyamgiri mining lease case in Orissa. He said Vedanta can’t be given the lease because it’s been blacklisted by the Norwegian government; but its subsidiary company Sterlite can get the lease because it is a publicly listed company. Justice Kapadia said it’s publicly listed because he had shares in it and yet he passed an order in favour of Sterlite! There is a law against judges hearing cases where there is a conflict of interest, but they just bypass it and you can’t complain because that would be contempt.

  2. Dear Subhas Babu,

    I have gone through your nice article “NORM SHOULD BE BAIL ON APPEAL, NOT ON ANTICIPATION”. All the points raised by you are extremely logical. I would request the logal experts to come forward to place counter arguements against the points raised by you or else to move at the appropritae forum to ensure
    ” bail on appeal and not on anticipation” which has made a mockery of Indian legal system and is helping
    the criminals and offenders of law.

  3. Pingback: Exclusive Election Tribunals Essential | Orissa Matters

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