By Sandhya Jain on October 22, 2012
In the brief span of a year, the Supreme Court has established different norms for granting bail to minorities and other privileged members of society vis-à-vis Hindus arrested under draconian laws. The new Chief Justice Altamas Kabir reinforced this trend on October 19 when he headed a Bench that granted bail to journalist Syed Mohammad Ahmed Kazmi, arrested on March 6 in the Israeli diplomat car attack case. Syed Kazmi thus follows Kanimozhi and other accused in the 2G scam for whom the Apex Court upheld bail as a constitutional right, as opposed to denial of bail to Sadhvi Pragya and others, accused in the 2008 Malegaon blast case where the prosecution is hard-pressed to make a viable case.
Outgoing Chief Justice SH Kapadia upheld the view that bail, not jail, shall be the norm for accused. Hence, despite public anger against corruption in the wake of the 2G scam, the Apex Court began granting bail to the accused from November 2011. A Bench comprising Justices GS Singhvi and HL Dattu held that “refusal of bail is a restriction on the personal liberty of the individual guaranteed under the Constitution.” They added, “The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping him pending the trial, and at the same time to keep the accused constructively in the custody of the court. Right to bail is not to be denied merely because of the sentiments of the community against the accused.”
This follows a principle articulated by Justice VR Krishna Iyer, “Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system, that the crucial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community” (1977). He stressed, “The basic rule may perhaps be tersely put as bail not jail”.
In law, under Section 167 CrPC, the prosecution has to file a chargesheet within 60 to 90 days, depending on the case. If the chargesheet is not filed within the statutory period, the accused is entitled to statutory (or default) bail, where merits of the case are not relevant. But under the Prevention of Unlawful Activities Act, the prosecution can seek extension of time for 180 days. This was invoked in Kazmi’s case, and the police filed for an extension on July 20, which was granted the same day. The chargesheet in the case was ultimately filed on July 31.
Israeli diplomat Tal Yehoshua Koren, 42, wife of Defence Attaché Col Yossi Refaelov, and three others were injured when a magnetic bomb was stuck to her vehicle by a motorcycle-borne assailant on February 13, 2012. Kazmi, who worked for an Iranian publication, was arrested on March 6, after investigations showed him to be in touch with the person suspected of placing the bomb on the car. Police claimed he had helped the suspect to recce the Israeli Embassy before the incident. He applied for bail on March 13, which was denied by the Delhi High Court.
Since the Prevention of Unlawful Activities Act was invoked in his case, prima facie there should be no bail for the accused under Section 43D. But the Supreme Court sidestepped his aspect of the chargesheet while granting bail to Kazmi and ruled, “We are unable to appreciate the procedure adopted by the Chief Metropolitan Magistrate, which has been endorsed by the High Court and we are of the view that Kazmi acquired the right for grant of statutory bail on July 17, 2012, when his custody was held to be illegal by the Additional Sessions Judge.
But in the case of Sadhvi Pragya and others accused in the Malegaon blast case, Supreme Court Justices JM Panchal and HL Gokhale denied bail and asserted that the right to get default bail “is not an absolute and indefeasible right” (10 SSC 445, 2011). They said, “The said right would be lost if chargesheet is filed and would not survive the filing of the chargesheet”. In other words, once the chargesheet is filed, if the accused is to be released on bail, it can only be on merits (September 23, 2011).
The same Supreme Court granted bail as a constitutional right to the 2G scam accused in November 2011, and again ignored the merits standard while granting bail to Syed Kazmi after filing of the chargesheet in the Israeli diplomat attack case.
The Malegaon accused were again refused bail on October 4, 2012 by a bench of Justices HL Dattu and CK Prasad. Senior advocate UR Lalit, who appeared for the Sadhvi, argued that she was entitled for bail as Maharashtra’s Anti-terror Squad had failed to file a charge-sheet against her in a period of 90 days from her arrest, which was mandatory under Section 167(2) of the CrPC. She was arrested on October 23, 2008. The court also denied bail to Col Shrikant Purohit and other accused in the case. The lawyer contended that the accused have been behind bars for four years and their petitions are not being heard by the apex court. But the court adjourned the case for three weeks.
Sadhvi Pragya and her co-accused are victims of judicial amnesia. Far from receiving equal treatment under the law, they have been subjected to judicial temperament and secular India’s unique code of political correctness. It is time to call this bluff.