The Bail Circus in India
If you feel that your dowry case is bad and is causing you to make an unfair number of trips to various courts, have a look at the Jaganmohan Reddy case. God only knows how many bail applications he was forced to make before he finally got bail. Thrice his bail was rejected by the apex court   . So we can rightly conclude that he approached the SC four times just to get bail. There was one bail application made by him in the Supreme Court in which 13 lawyers were representing him, with 4 lawyers against. Many of these lawyers are heavyweight lawyers. Still his application was rejected. Many high profile cases have similar histories. Look at the Gopal Kanda    case for example, or the slowly unfolding Asaram Bapu case   .
The principle of res judicata is broadly speaking not applicable to bail applications. This is to say that judicial precedent cannot be used as a tool by a bail applicant to get bail. Every bail application is deemed to have its own fresh set of facts and circumstances which need to be examined by the presiding judge before he gives his considered opinion in the form of a decision one way or the other. An applicant is free to apply for bail at a higher court if his application is rejected by a lower court. Often higher courts tell accused persons to go back to the lower court whence they came, and the accused is forced to make a fresh application (including modifications determined by the higher court order) at the lower court.
If the lower court rejects his application, he goes to a higher court. If it is rejected again at this level, then he goes to the local high court. If the application Is rejected here too, he has to apply at the Supreme Court. The applicant may be told to go back to the immediately lower court or to the lowest court to make a fresh and modified application at each of the successive higher stages. This makes for possibly an innumerable quantity of bail applications, and would be sufficient to clog up any legal system.
But our system is not satisfied with this amount of litigation. This whole exercise may produce only an interim bail order at its end. Interim bail is not final bail, as is clear from its name. A final bail order will require another bail application which will need to travel from the bottom to the top of the court system. This is enough fodder for another vexing round of lucrative litigation, which the accused person has no option but to initiate in case he loves his freedom. It needs to be mentioned just to make things clear that the litigation is vexing for one person, and lucrative for another person. This round of applications may finally end in a bail order. For the purpose of this write-up we better assume that it does, lest we keep going around in circles.
However, this is not the end of it. The bail order obtained by the accused is not final. There is in fact no concept of finality in bail orders. The prosecution is free to start appealing for cancellation of bail now. They can start with the court which granted bail, and go right up to the Supreme Court. It is not unheard of that a prosecution filed its petition for cancellation of bail at a court other than the court which had granted bail, only to be told to appeal at the correct forum. Sometimes incompetent or careless or less than alert lawyers file petitions in courts which do not have jurisdiction, and are told to approach the court which has jurisdiction over the matter at hand. This causes further mental torture and wasted time for all concerned. However, applying at the right court does not guarantee a favourable order. This much is axiomatic in litigation. Then the aggrieved party has no other option than either to give up or to approach a higher authority. This shooting match can continue right up to the Supreme Court.
It must be mentioned here that often a higher court including and up to the Supreme Court puts an embargo on further bail applications for a limited period bounded by specific events like the filing of a chargesheet, or completion of investigation, or until a certain date defined by the performance or non-performance of a specific action or act. When the time comes, the litigant starts the whole circus all over again, in the process benefitting criminal lawyers by fattening their pension fund. If the investigating agency drags its feet and does not complete the investigation within a reasonable amount of time, the litigant makes a fresh application regardless of and without waiting for such completion.
If a person gets convicted then he has the right to apply for stay of his sentence or for bail pending the decision on his appeal in a higher court. Such persons usually file bail applications, and this phenomenon is especially widespread in 498a cases. This is done under a different section of the CrPC than the original bail application. Incidentally, even anticipatory bail and regular bail are applied for and granted under separate sections of the CrPC. If an accused person files bail applications under different sections of the CrPC then he has to litigate anew at each stage with the same rigmarole ahead of him. I forgot to mention that even notice bail applications are eligible to be litigated till the highest level, and are treated as a different bail application, even though they are filed under the same section of the CrPC which is applicable to anticipatory bail.
Transit bail and interim bail are two kinds of bail which guarantee the need for further bail applications. Yes, sometimes an accused files specifically for interim bail, surprising as it may sound. All bail applications are heard on an urgent basis by all courts. This is a priority which is not even granted to writ petitions, except some specific types of writ petitions, like a habeas corpus petition for example. This includes interim bail extension applications too. All this is done in the name of protecting the accused person's right to life guaranteed by Article 21 of the Constitution. It is very interesting that the state is not bothered about the violation of the right to life which is suffered by people who are trapped in unhappy marriages or are held to ransom by rogue tenants sitting on property purchased with lawfully earned money, in the sense that people who belong to these categories are commonly forced to litigate for 20 years, 30 years, or more. Is it possible that this is happening because bail applications are a lucrative business for the legal community? Bail applications make up the major part of the practice of most criminal lawyers, and each bail application is more often than not paid for by the client separately from the main criminal trial case.
Compare this with the English system where only a maximum of two bail applications can be made by any accused. The Australian system permits only one bail application. The exception in both these countries is where there is a material change in circumstances, including the emergence of fresh facts. A similar provision is there in India also, but it is observed often more in the breach than in compliance. For example, can even a VIP hope to be heard four times within the space of a year and a half by the SC in any sort of matter except a bail matter, like Jagan Reddy managed?
Written by Manish Udar
Published by Manish Udar
Page created on 7th October 2013
Last updated on 15th January 2017