Saturday, May 9, 2015

Reversing the Presumption of Innocence - Part III

Over the last two posts, I described the various provisions restricting grant of bail requiring the court to determine, to some degree, the guilt or innocence of an accused person. Here, such provisions are subjected to a more critical eye. Warning: this is a long post.

Constitutionally Correct
I remain baffled by how Section 437(1) of the Criminal Procedure Code 1973 [Cr.P.C.] was never challenged as violating the Constitution. The Supreme Court used this as a circumstance in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] to justify the validity of Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act 1987 [TADA], where according to the Court a "galaxy of senior lawyers [names omitted] made the most virulent fusillade against the constitutional validity of all the Acts in general and the various provisions of those Acts in particular ..." The Court also gave a moral lesson to Prosecutors hoping for a proper enforcement of the TADA, which seems to not have been always considered.

The Court in Kartar Singh provided little basis for its decision on holding Section 20(8) as constitutionally valid: the existence of Section 437(1) Cr.P.C., along with standard rhetoric on balancing individual liberty with state security is what we get. But it beggars belief that a possibly discriminatory can be considered valid merely because it also exists across across other laws at that time. There was no discussion of what "reasonable grounds" might be, or how the other condition of offences committed on bail would be interpreted, 

Reasonable Grounds with Unreasonable Consequences 
The first of these issues got a better treatment in cases involving Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS Act]. The Court consistently held that reasonable grounds mean "substantial probable causes for believing that the accused is not guilty of the offence he is charged with ... [which] in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty." [See e.g., Narcotics Control Bureau v. Dilip Pralhad Namade, (2004) 3 SCC 619; Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798; Union of India v. Rattan Malik, (2009) 2 SCC 624]. But how are these arrived at? For every determination, the court needs some material before it. This is determined by the stage at which a bail application is filed Basically, if I file for bail after filing of the charge-sheet the court would have all the materials relied upon by the police to consider the weight of allegations [as Section 173(5) Cr.P.C. requires these to be supplied to Court]. But if I file for bail immediately after arrest than all the court has is the FIR and an affidavit filed by the Station House Officer for the concerned Police Station.

Aware that a full-dress rehearsal of the trial to decide bail would spell the end of the presumption of innocence, the Court consistently held that such an inquiry is to be avoided. At this stage its not about determining guilt or innocence, but only whether there appears guilt or innocence to deny or grant bail [E.g., Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798]. This foolproof rhetoric has actually had rather oppressive consequences. How? In their refusal to have a mini-trial, courts exclude arguments on validity of materials collected during investigation [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528]. As a result, material which would be entirely inadmissible as evidence becomes useful to deny the grant of bail because the court refuses to consider potential inadmissibility to discard the material. So the prosecution relies upon confessions before police officers and co-accused persons (the former completely barred under Section 25 of the Evidence Act 1872 and the latter carrying little probative value under Section 30 of the same) to successfully get bail applications rejected. So while the police actually have nothing to prove my guilt, its enough to establish reasonable grounds of my guilt.

Look Ma, No Hands
This potential problem of using inadmissible materials arises if a bail application is filed later when materials have been collected. So why not file it earlier? After all, the Court would have lesser material before it to potentially prejudice the case giving bail a better chance right? Well, the court is not the only one with lesser material: the Cr.P.C. does not have any legal requirement for the accused to be given materials before filing of the charge-sheet during a pending investigation. Documents are supplied after taking cognizance as under Section 207 Cr.P.C [209-210 for a Sessions Trial]. Aside from being aware of the grounds for arrest [under Section 50 of the Cr.P.C.], the accused cannot see the materials used by the prosecution to rebut those claims. So those who get bail can say "Look Ma, no hands and I still got bail!"

There is an interesting thread of case law from the Gujarat High Court on this point. In 1976 the High Court considered the issue and accepted the argument that it would be unfair to not provide the accused with copies of materials relied upon by prosecution to oppose bail, and ordered for copies to be supplied [Kottam Raju v. State of Gujarat, (1977) 18 GLR 107]. In 1980, the High Court declined to supply copies noting this would start a mini-trial during a pending investigation thereby crippling it [Narsingh Revaji Ayachi v. State of Gujarat, (1981) 22 GLR 234]. Finally in 1992 the Court observed documents will not be present with the accused in a bail application before filing of the charge-sheet, so in the interests of justice the accused should have the liberty to file a fresh bail application after all materials have been supplied [Jitubhai Shanabhai Bhatt v. State of Gujarat, (19992) 2 GLR 832]. The inconsistency of opinion has meant most bail requests (unless for some urgency) are made after filing of the charge-sheet, which entails 2 months in custody are usually spent by persons accused of non-bailable offences, even for potentially bogus charges. And this is only for the seeking of bail; getting it is another question altogether as we saw above.

Guaranteeing a Completely Clean Future?
This is perhaps the only count where the Supreme Court interpreted the law in a manner protecting the accused. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294] the Court considered bail under Section 21(4) of the Maharashtra Control of Organised Crimes Act 1999 [MCOCA] which in clause (ii) requires the court to have reasonable grounds that an accused is unlikely to commit any offence will on bail. In the last post I discussed how this could not only be potentially invasive of privacy but also allow a technical easy route for rejecting bail applications. The Supreme Court however interpreted this requirement of any offence to mean any offence under that Act, making the arguments on the issue more pertinent but also realistic to address for the accused. 

Conclusion: Reversing the Presumption of Innocence?
Why do I use this phrase for this series of posts? Because I think that if my trial takes place before the court which decided to reject my bail because it harboured reasonable beliefs of my guilt, I'm fighting my case with one hand tied behind my back. This is after having fought my bail with both hands behind my back, or potentially with no hands at all. The suspension of sentence awarded to Mr Salman Khan within a hours has attracted a lot of attention over the seemingly anti-underprivileged bias in the criminal justice system. Given how difficult it is to secure bail in the conditions these posts have discussed, maybe its not so surprising that those accused of serious crimes are often members of the underprivileged class. Of course, individual liberty can and must have limits. But there is much that needs to be done to ensure that the bail-process is at least a balanced fight between the accused and the State, and not an account of David versus Goliath. 


  1. Pls nd da post wit d FULLSTOP and nt d comma bro..!!

    Peanfe out.

  2. Hi!

    Absolutely love the meticulousness of this series of your posts, though since you went all guns blazing with the criticism only in the third one, I found that best communicative of the ideas you were trying to convey.

    I do, however, have a doubt about your central suggestion here.

    Are you saying the need of the hour is to improve procedural and evidentiary requirements so that the grounds on which the court decides bail in non-bailable offences *actually* become "reasonable" as prescribed?
    (This would entail, inter alia, resolving the issues that you've pointed out: availability of prosecution materials to the accused at any stage if he decides to apply for bail; allowing for inadmissibility of materials to be a valid argument run by the accused even though bail is a pre-trial issue; not seeking assurance of "any future offences" - even those under the concerned Act - if the primary condition of reasonable grounds of believing the accused did not commit the crime is fulfilled, etc.)

    OR, are you saying that a provision such as Sec. 437(1), CrPC, that provides for a discretion on the court to decide if prima facie the accused committed the offence while deciding bail in non-bailable serious offences, is a wholly unconstitutional, unrequired provision?

    My guess is your suggestion isn't the latter.
    Since that would suggest having a system that grants bail in serious non-bailable offences on, well, no other ground other than simply presumption of innocence in its absolute sense? And presumption of innocence can't be stretched to a point where we don't factor in another presumption: that it is true that guilt, and crime, exists in society. Which necessitates in serious cases that the judge be allowed to use his/her discretion based on whatever materials are available at that point.

    (Might be an unwarranted doubt, but I thought I'll get it clarified anyway!)

  3. Hi Vibhor.

    I'm replying to your comments together here, the latter first. Who's Ambar? :)

    Now for the first comment. My suggestion is in fact to change the text of 437(1), but I don't think that directly leads to the result of granting bail becoming easier for non-bailable offences. Or, if we are to retain this provision, then have bail hearings before different judges for non-bailable matters to eliminate any possibility of bias. I know that these are rather difficult to realise, which is why at least (with an emphasis), we need to correct the procedural issues currently existing. Let me know what you think.