Why Bail? Are not bails lingering litigations? Supreme Court should issue a Whitepaper

Subhas Chandra Pattanayak
Orissa High Court has enlarged suspended BJD legislator Pravat Kumar Tripathy on bail. He has been released from the jail to extravaganza of a reception by his sycophants, posing as if the appropriate Court was wrong in remanding him to jail. Tripathy was arrested by the CBI on 31 October 2014 on charges of involvement with chit fund Artha Tattva. His bail application was opposed by the CBI on the ground that, once enlarged on bail, he being a political heavyweight, the witnesses may be influenced and evidences may be tampered. But, bail was granted by the Orissa High Court. It has given birth to speculations that the bail granted to him may open up the gates to freedom of other politicians presently in the jail under chit fund related charges.

Every offense in India is bailable. The word “non-bailable” does not extinguish the provision of bail. It means, if the offense is non-bailable only higher echelon of judiciary can grant the bail. So, there is no wrong in granting the bail to Tripathy by the High Court.

But, can the High Court obstruct any cleaver and clandestine attempts to tackle the witnesses or evidences? Has anywhere at any time the judiciary has acted a secret police to catch and thwart any act in action to tamper with the evidences by the accused released on bail?

On the other hand, bails are helping the culprits linger the litigations everywhere. And, in many cases, it is seen that the under trial offenders on bail are getting acquittals ultimately. Whether or not the freedom given to them through bails foils the prosecution is never studied.

It is time, the Supreme Court of India should publish a Whitepaper on bails so that the people can know how bails affect the litigation time and can study the final verdicts in matters of culprits enlarged on bail.
Judicial discretion in matter of bail should not be factors to foil prosecution.

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  1. I quite share the concern of Subhas Chandra Pattanayak. But there is a reverse argument too. In a country which has an acquittal rate of anything between 85% to 90%, keeping a person in prison for an elongated period without trial will be against the basic Indian jurisprudence. How tragic will it be if a person is kept in prison for six or seven years and ultimately declared not guilty? Who is going to compensate him or her? As far as the other concern of delay in trial is concerned, I don’t believe that it can be entirely attributed to the granting of bail.There are other contributory reasons as well, like shortage of manpower in the courts and, above all, shortage of quality lawyers and judges. You may appreciate that in many courts, about 80% of the cases are adjourned on a daily basis because the court is not able to attend to them.

    • Dear Sri Mishra,
      Thanks for perusing the post and sharing your well considered views. The points you have raised are very important and pertinent. But, when a lawmaker brakes the law and patronizes swindlers and appropriates the swindled money should be shown no judicial mercy. Bail to such scoundrels makes mockery of judicial discretion. Memory does not fail to recall how fire made ashes of vital records of Banki Central Co-operative Bank even shen Tripathy was in jail. To what the bail now lead in absence of any police character of judiciary is a matter of speculation.

      The argument that everybody is innocent till found guilty is a wrong notion developed in the pro-crime climate. To eliminate crime or criminal conduct, it needs to change into the concept that every accused is guilty till found innocent. Otherwise crime shall not end, particularly when criminals are grabbing political power. Let the highest judiciary react on this. In a separate earlier article I have discussed this point and sent the same to the Supreme Court, where it is either gathering dust or has been discarded. Our lawyers, who have patriotic concern for our people, should deeply cogitate this issue and prevail upon the Supreme Court to pay attention to this concept. Biju Patnaik is now a posthumous encroacher on Orissa’s political consciousness, because he was not punished for his treason against India during the Chinese aggression and many other heinous crimes against the people. Our judiciary and jurists should not shy at this reality. CBI has framed prima-facie charges against Tripathy. CBI is to frame the charges completely and to prove the charges so framed. If it would have failed,Tripathy should have come out as not guilty. Instead of granting bail to him, it should have been better had the Court put a time tag on completion of prosecution beyond which a no-prosecution award should have been pronounced.

      However, to general views of yours, the solution, in my opinion, lies not in bail, but speedy and unbiased prosecution and provision of vigorous punishment against the sleuth who investigates into an allegation, frames charges and pushes the accused into false/untenable prosecution. The second solution lies in stoppage of political appointment of sub-standard lawyers as public prosecutors. The third solution lies in tagging a time for the accused to prove himself/herself innocent during that time-tag failing which he/she should be awarded with punishment as provided under the law, which conversely makes the accused entitled to “No-Prosecution” award after expiry of the time-tag, with further entitlement to compensation for concocted/false prosecution.

      Let us loud think over this and welcome views, if any, in furtherance of the debate.

      Thanks.
      Subhas Chandra Pattanayak

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