Law on Bail

Supreme Court of India

SUPREME COURT IN Sanjay Chandra vs Cbi on 23 November, 2011

Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused [Sharad Kumar Vs. CBI (supra)] and, therefore, there is no reason or change in the circumstance to take a different view in the case of the appellants who are also charge- sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions.

The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read 2 with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice.

In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if  left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is `the seriousness of the charge’. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in  support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather recalibration of the scales of justice. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.

This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan– (2005) 2 SCC 42, observed that under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the  Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so.

This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight (17) In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus: What, then, is judicial discretion in this bail context? In the elegant words of Benjamin Cardozo:

The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains Even so it is useful to notice the tart terms of Lord Camden that  the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst,  it is every vice, folly and passion to which human nature is liable Perhaps, this is an overly simplistic statement and we must remember the  constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest  magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:

I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial …. It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death

It is thus obvious that the nature of the charge is the vital  factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance.

Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has  been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, this Court took the view:. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.

Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of  jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out

 In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined: The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial 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. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right. …

Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice–to the individual involved and society affected.

We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, community roots of the applicant are stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man  and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal

In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held: The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.

The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus: Bail remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression bail denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb bailer; which means to give or to deliver, although another view is that its derivation is from the Latin term baiul are, meaning to bear a burden;. Bail is a conditional liberty. Stroud’s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those  which have authority to bail him, which sureties are bound for him to the King’s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed–that is to say, set at liberty until the day appointed for his appearance Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.

Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged  to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras)

The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that just as liberty is precious to an individual, so is the society’s interest in maintenance of  peace, law and order. Both are equally important This Court further observed : Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].

The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus: The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt

In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11) The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas

 While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary) Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the  same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.

 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, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.

When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the  documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated:  In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille

 In `Bihar Fodder Scam’, this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.

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Are judges under media pressure in high profile cases- while deciding on Bail?

Supreme Court of India

DECCAN CHRONICLE

Are the trial court judges in high profile case like 2G scam working under media pressure to deny bail to the accused?

This question was raised on Tuesday in the Supreme Court, which agreed to go into the bail principles afresh in the wake of such assertions being made by some senior advocates.

A three-judge bench, headed by Justice Altamas Kabir, the senior most judge after CJI, though pointed out that the Supreme Court had laid down the guidelines for courts below for granting bail, still the issue would be examined afresh in the light of the assertions made by the senior counsel.While fixing January 18 for fresh assessment of the guidelines, the bench also having Justices S.S. Nijjar and J. Chelameswar as the other two judges further explained that fresh guidelines had been recently laid on grant of bail by the top court in excise and income tax cases and the issue of bail in other general cases would be considered in the light of those norms.

The assurance from the top court came after senior advocates Ranjit Kumar and Mukul Rohtagi without specifically mentioning the 2G case, made an apparent reference to it with Kumar stating that the trial court judges were working under “tremendous media pressure” and fearing that any adverse publicity to their orders in high profile cases might affect their “annual confidential report (ACR)”.

Due to such a pressure, the basic principle that “bail is a rule and jail an exception” as laid down by the Supreme Court was being given a go by.

“The bail is even denied in cases where maximum punishment is only five or seven years,” Kumar said while arguing for the bail of Vikas Kumar Sinha, an alleged front man of former Jharkhand Chief Minister Madhu Koda, facing charges of corruption. Kumar said Sinha had been chargesheeted by the CBI with offences carrying minimum sentence of 3 years and maximum seven years almost a year back and he was in jail for two years now.

“I don’t know when trial will begin. He has already undergone two years of sentence. Why should the accused suffer such a long incarceration before the conviction? Judges refuse to grant bail as they are afraid of their ACR. A message should go to the trial courts that the accused also have the right under the constitution,” Kumar asserted.

His views were supplemented by Rohtagi.

http://www.deccanchronicle.com/channels/nation/north/are-judges-under-media-pressure-high-profile-cases-761

Bill to cleanse politics of criminals in winter session

Nov 4, 2011, 03.51AM IST TNN[ Dhananjay Mahapatra ]

NEW DELHI: The government is proposing radical reforms to ensure decriminalization of politics and intends to table a bill in the winter session of Parliament proposing to debar candidates facing trial in serious and heinous offences. At present, under the Representation of People Act, only persons convicted by a trial court and sentenced to more than two years imprisonment are debarred from elections for a period of six years, which commences from the date of completion of the prison term. This allows persons facing multiple murder charges to contest elections. Moreover, even if a sitting MP or an MLA is convicted of an offence and sentenced to more than two years jail midway through his term, he continues to be a people’s representative and can attend Parliament or assembly if he files an appeal in the higher court and gets a stay on the conviction. The proposed legislation, first reported by TOI on June 17, is going to be strict on such exigencies and says those who are chargesheeted by police, CBI or other investigating agencies for murder, acts of terrorism, rape, dacoity and similar serious and heinous offences would be debarred from contesting elections till the trial court acquits them. The legislation is part of the larger bouquet of anti-corruption measures government has embarked upon to blunt the attacks it has faced from Team Anna as well as political opponents over the issue of corruption. Government plans to pass three legislations: Lokpal Bill, Judicial Standards and Accountability Bill and Whistleblowers Protection Bill in the winter session. Besides, it has also planned to introduce Grievance Redressal Bill which, while ensuring smooth delivery of services, will also tackle corruption in providing the same. Conceived as an alternative to Team Anna’s insistence that the proposed Lokpal should be tasked with tackling corruption among lower bureaucracy as well, the Grievance Redressal Bill is being projected as a better way of fighting “cutting edge graft”. Government sources point out that under the Lokpal bill, failure to deliver a service is proposed to be treated as an act of corruption. They say this could only delay the delivery of government services since establishing a criminal charge could take time. As against this, the Grievances Redressal Bill provides to separate corruption from failure to deliver a public service/good and, thus ensuring that the grievance for the failure of delivery of service is redressed within a fortnight. During the discussion on stricter measures to decriminalize politics last week in the Cabinet Committee on Political Affairs, law minister Salman Khurshid argued strongly for the bill. These proposals on electoral reforms were firmed up during the tenure of Khurshid’s predecessor M Veerappa Moily, who had constituted a Committee on Electoral Reforms to recommend to the government concrete ways in which the electoral system could be strengthened through legislative means. Khurshid also laid stress on amending the existing provisions of RP Act to make filing of false affidavits by candidates along with nomination papers to declare their assets and criminal antecedents a serious offence which could attract a permanent ban on contesting elections. By this way, disclosure of criminal background would be made non-negotiable.

It means, if a candidate deliberately conceals his criminal antecedents and is found guilty, then he will be forced to abandon a career in electoral politics. The proposed amendments, discussed in the CCPA, also include withdrawing immunity to sitting MPs and MLAs from continuing with their tenure after being held guilty and sentenced to more than two years imprisonment even if they get the conviction stayed by a higher court on appeal. By this, the government intends to force an elected representative to resign from his membership from Parliament or assembly the moment a trial court finds him guilty of an offence and sentences him to more than two years imprisonment.

dhananjay.mahapatra@timesgroup.com

A public interest litigation petition filed in the Supreme Court by members of the India Rejuvenation Initiative, for fast-tracking criminal cases pending against MPs and MLAs, said: “Given a situation in which ‘winnability’ is the sole criterion for selection of candidates and those with deep pockets alone can hope to win elections, a criminal who has amassed money and influence through a ‘mix of terror and patronage’, has greater chances of winning than a clean and decent individual without such’ capabilities’. And most often criminals do win, which is why they are increasingly present in the country’s representative institutions.” The consequences of this trend “are seen in the increasing criminalisation of the process of governance with ministers, legislators, bureaucrats and unscrupulous businessmen combining to plunder public funds and prey on the public.” Criminal cases against politicians pending before courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing special courts, the petition said. A Bench of Justices P. Sathasivam and Jasti Chelameswar issued notice to the Centre, all States and the Election Commission after hearing senior counsel Rajeev Dhavan.

Juvenile officer at every police station must: court

J VENKATESAN IN THE HINDU

“He shall take care of safety, food and basic amenities of the child”

The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”

According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.

He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.

Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.

Monitoring to continue

The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.

http://www.thehindu.com/news/national/article2562888.ece

Khurshid remains consistent on Bail for 2G Scam Accused

Bail is rule, jail exception”, Khurshid reminds SC

In a balancing act, Union Law Minister Salman Khurshid said that while it was for the courts to decide as to who should be locked up, the dictum of bail being the rule and jail an exception has been laid down by the Supreme Court itself. Elaborating on his controversial statement that the judiciary needs to understand the ‘political economy’ in the country, Mr. Khurshid told PTI on Tuesday night that “it is not for me to lock up people, it is for the courts to decide”.

At the same time, he recalled that the Supreme Court had laid down the law “bail is the rule, jail is an exception”. The Law Minister was speaking in the backdrop of his comment, “if you lock up top businessmen, will investment come”, which was termed as “disturbing” by the Supreme Court on Wednesday.

Mr. Khurshid said his comments had nothing to do with the 2G case but agreed with the questioner that a lot of people think that many of those long detained in the scam had been deprived of their liberty.

In a changing society every institution has to respond to the demands of changing time and the courts had done that in the case of protection of environment for which they needed to be complimented.

Similarly, “the demands of our time are that we must appreciate what dissent is”, the minister said adding that it was the Supreme Court that had given bail to Maoist sympathiser Binayak Sen without saying that he was guiltless.

“They (the apex court) said he will be tried. If he is wrong he will be punished. But that is no no reason to keep him in prison. They gave him bail,” Mr. Khurshid said describing the order as “brilliant“. He went on to ask, “But when economic issues come does the Supreme Court pay the same attention to developing economic issues as the rest of us do”.

http://www.thehindu.com/news/national/article2531547.ece

If you lock up businessmen, will investment come: Law Minister

INDIAN EXPRESS

At a time when the judiciary is seized with cases concerning corruption, black money and the 2G spectrum scam, Law Minister Salman Khurshid has said that the judiciary needs to understand the “political economy” in the country.

Speaking to The Indian Express, he said: “What will affect the functioning of the government is if other institutions do not understand the kind of political economy we are faced with today: what is needed to encourage growth and investment? If you lock up top businessmen, will investment come? What optimal structure should be put in place for investment to come?”

Asked if he meant the judiciary when referring to “other institutions”, he replied: “Yes, judiciary is as important a player in the entire effort. Each of the three wings — judiciary, legislature and executive — has to understand the political economy and respond to it. The judiciary can’t be immune to the demands of society in changing times. The judiciary has been making positive interventions in the field of environment, fight against corruption, protection of human rights and social welfare, but it also has to understand the political economy.”

On why the UPA government has been increasingly facing flak from the judiciary, Khurshid said, “It’s not the entire judiciary. There are some judges who have felt that things need to be set right. Sometimes, we may not agree. For instance, we did not agree on the black money verdict and hence sought its recall. Two judges disagreed among themselves. These are difficult issues of political economy. We don’t blame the judges for getting it wrong. On certain things, the executive and the legislature also get it wrong.”

Asked about the controversial Finance Ministry’s note regarding Home Minister P Chidambaram’s stand on the 2G spectrum allocation issue when he was the Finance Minister, Khurshid said, “Even the worst interpretation of that document does not drag in the then FM.”

http://www.indianexpress.com/news/if-you-lock-up-businessmen-will-investment-come-law-minister/857840/0

 

A thousand deaths

T R ANDHYURUJINA IN HINDU

Procrastination on mercy petitions is inhumane to death-convicts.

An inordinate delay of 11 years occurred in considering the mercy pleas of the three death-convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, with their pleas being ultimately rejected on August 11, 2011 by the President of India. This is only one instance of the inhuman, unconscionable and arbitrary manner in which mercy pleas of convicts condemned to death are kept pending by the government for years on end.

Simultaneous with the rejection of the pleas of these three convicts, the Home Ministry has recommended to the President to reject the mercy plea of Afzal Guru. He was sentenced to death by the Supreme Court on August 5, 2005 and the government has not taken a decision on his clemency petition for six years now.

These are some of the prominent cases among pending mercy petitions, but not the only ones. Eighteen mercy pleas are pending with the President as on August 16, 2011, the earliest among them dating back to 2005. The government seems to be totally indifferent to the pathetic plight of such convicts who are kept in suspense for many years. Courts in all civilised states, including India’s Supreme Court, have recognised that any prolonged delay in executing a death sentence can make the punishment, when it comes, inhuman and degrading. The trauma and psychological stress, coupled with solitary confinement, creating a conflict known as the “death row phenomenon,” in themselves amount to a cruel punishment. The prolonged anguish of alternating between hope and despair, the agony of uncertainty and the consequence of such suffering on the mental, emotional and physical integrity and health of not only the convict but also his family members should never be allowed in a civilised society.

In a leading case from Jamaica decided by the Privy Council in 1993, the court said: “There is an instinctive revulsion against the prospect of hanging a man after he had been under sentence of death for many years. What gives rise to this revulsion? The answer can only be our humanity. We regard it as inhuman to keep a man facing the agony of execution for a long extended period of time. To execute these men now after holding them in custody in agony of suspense of so many years would be inhuman punishment.”

In 1983, the Supreme Court of India observed that a self-imposed rule should be followed by the executive authorities that every such petition should be disposed of within a period of three months from the date it is received. In other cases, the Supreme Court has commuted the death sentence to life imprisonment because of the unconscionable delay and suspense involved for the convict. As recently as on September 18, 2009, the Supreme Court specifically reminded the government of its obligations with regard to the 26 mercy petitions that were then pending with the President. The Government of India has been not only oblivious of the inhuman aspect of the procrastination but has disregarded the repeated directions of the Supreme Court.

The case of Afzal Guru has been a gross instance of political considerations coming in the way of deciding a mercy plea. Afzal Guru has been a political pawn, with the Bharatiya Janata Party in an unseemly manner demanding his immediate execution and making it an election issue. Meanwhile, for political considerations the government has delayed taking a decision, giving flimsy grounds such as that the file was not returned by the Delhi Government for four years.

As a matter of fact, it was revealed by the Delhi Chief Minister that the previous Home Minister had deliberately instructed the Delhi Government not to take action promptly on Afzal Guru’s file. Afzal Guru’s mental agony can be seen from a pathetic statement he made in June 2010. He said: “I really wish L.K. Advani becomes the next Prime Minister as he is the only one who can take a decision and hang me. At least my pain and daily suffering will ease then.” On the United Progressive Alliance government’s ambivalent attitude, he said: “I don’t think the UPA government can reach a decision. The Congress party has two mouths and is playing a double game.” Whatever his crime, surely Afzal Guru does not deserve this agony.

On September 30, 2009, Home Minister P. Chidambaram said he would consider afresh the cases of the 26 convicts awaiting the death sentence whose mercy petitions had been lying with the President for several years. He said the Home Ministry would examine each case turn by turn — as if deciding petitions submitted to the President was an act of grace or mercy.

It is a fallacy to believe that the power of granting pardon given to the President and the Governor under the Constitution is an act of grace or mercy. The power conferred on the President and the Governor is a part of India’s constitutional scheme and is an integral part of the criminal justice system in the public interest. The convict has a constitutional right to have his or her petition considered by the President or the Governor on relevant grounds, including miscarriage of justice. And it should be decided expeditiously. To use the felicitous words of a U.S. Supreme Court judge: “When granted the pardoning power is the determination of the ultimate authority that public welfare would be better served by inflicting less punishment than what the judgment has fixed.”

It appears that the Home Ministry has now fast-tracked death penalty cases because of petitions filed in courts. On June 12, 2011, the Gauhati High Court issued notice for the delay of 12 years in the case of Mahendra Nath Das. In July this year, the Supreme Court issued notice to the government in the case of Devender Singh Bhullar, forcing it to speed up the rejection of his mercy petition. On July 8, 2011, in a Public Interest Litigation petition moved by a non-governmental organisation against the government’s inhuman and arbitrary practice of keeping such petitions pending, the Supreme Court issued notice to the government.

It is time the entire system of disposal of the so-called mercy petitions was set right once and for all by an authoritative pronouncement and correction by the Supreme Court. Individual cases such as those of the convicts in the Rajiv Gandhi assassination case that are now in court would raise the larger question of the working of the pardoning system by the government, and why cases of the other convicts on death row who are kept in similar suspense should not be simultaneously considered. This can only be done if the present system is examined and corrected by the Supreme Court for the benefit of all mercy plea petitioners.

(The writer is a senior advocate of the Supreme Court, and former Solicitor General of India and Advocate-General of Maharashtra.)

http://www.thehindu.com/opinion/lead/article2418776.ece

Police/SJPU – how they can choose to be an adversary or a friend of Children in Need of Care & Protection and Juvenile in Conflict with Law

Delhi Police Juvenile Unit
Delhi Police Juvenile Unit

SUMAN NALWA , ADDL DCP / SPUWC -DELHI POLICE

For any social and reformative legislation to be successful, it requires not just the good law but dedicated and motivated functionaries of the criminal justice system as well as the administrative wings of the govt in addition to responsive and responsible society. In the absence of these prerequisite, the law is but just a piece of paper and can never hope to make the impact it was intended to make.

The same stands true for our Juvenile Justice system as well. the object of juvenile justice system is prevention (ensuring that children do not come in conflict with the law), diversion (that children are kept away from formal criminal justice system and into community based and restorative processes to prevent repeat delinquency), protection ( of CICL from human rights violations and the children from exploitation and abuse). the mission being to not to simply punish the violators but to help the young violators of law to get back in the society on the right path. The focus being to look into the complexity of the life situation of the child and thus offering commensurate rehab program in the best interest of the child. Further, in case of CNCP, to reach out to them and ensure their proper care and rehabilitation. Thus ensuring aftercare and reintegration of all the children who have been left out, back into the society.

Considering these objectives, it was felt that the existing machinery was not in sync with the need of the children and that it requires a separate juvenile justice system which will cater to the specific needs of the children through a sensitive police, informal and flexible judiciary ready to intervene in the best interest of the child and institutions who are well equipped to design and implement the individual rehab and reintegration programs.

At the police level, a separate system of Juvenile Welfare Officers at the Police Station level, Special Juvenile Police Units at the District levels and State Nodal Unit at the state level were set up to upgrade the treatment meted out to the children at the hands of police to a more humane and sensitive approach. The Child Welfare Committees and Juvenile Justice Boards were also set up to look into the best interest of the child. However it has to be understood that the Juvenile Justice Act is a social legislation, aimed at changing the way our children get treated in the society and the system, and just putting the administrative structure alone is not enough to reach the goals set up by the JJ Legislation, it requires corresponding change in behavior as well as mindset at all levels to make a real impact in the life of a child.

From the police perspective, the JJ act lays down the groundwork of what police is expected to do or work in a given set of  circumstance relating to children who are in need of care and protection as well as those in conflict of law, that they are specially instructed and trained and have an aptitude to handle the children. The rules go further and extols the police agency to be proactive. the rules bring out the proactive approach by making SJPUs the watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile and to take serious cognizance of adult perpetrators of crimes against children in addition to other duties mentioned thereof.

 Role of police under the JJ Act

Police plays a substantial role in the juvenile justice system be it vis a vis the child in need of care and protection (CNCP) or the child in conflict with law (CICL). How it plays this role i.e., by taking the child along , in his best interest or considering him as any regular criminal or a victim depends on their level of sensitivity and commitment. In almost all the cases of CNCP as well as CICL, the police are usually the first point of contact with the child. This is indeed an important role as it means that the police officer, invariably the first contact point, now determines whether the child becomes the part of the juvenile justice system to begin with or not. And what kind of intervention the officer is going to make in the situation vis a vis the child often determines the future of this child.

The jj act and the modal rules lays specific duties for the police especially SJPUs vis a vis children such as to upgrade the police treatment of all juveniles and the children (Section 63), to coordinate and function as a watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile (rule 84(5)), to take serious cognizance of adult perpetrators of crimes against children and to see to it that they are without delay apprehended and booked under the appropriate provisions of the law (rule 84(6)), identifying CICL and CNCP in association with civil society(rule 84(7)) to name the few.

Child in Need of Care and Prptection: The specific role of police in how to address the situation when a child victim comes within their jurisdiction, is laid down in CrPC as well as JJ Act. This is more the procedural part which at best is but a skeletal and has to be augmented by the right attitude and inclination to do whatever is required in the best interest of the child. The police however, has historically and from the nature if its work profile is more inclined towards law and order and has more of crime criminal orientation. The change from crime and criminal orientation to victim orientation needs loads of efforts, interest and dedication in addition to a sensitized and dedicated police force. Whether it’s a case of physical, emotional or sexual abuse of the child, whether the child has been exploited for his work, whether the child is a street child with nowhere to go, a beggar, whether this child who is in need of care and protection of the law comes within the purview of law requires a sensitive citizen who is ready to intervene as well as a sensitive police force which is duty bound to take such children within its cudgels so that the JJ system becomes operational . These children invariably cannot stand up for themselves and need all the support possible to access to the services available to them under the law. The children being children are afraid of the formal system be it the police which goes to rescue them or the judicial system and the children homes where they are taken. At that point a soft and sensitive approach wherein the child can trust and find a friend and a guide in police will definitely mean a new life for the child and give him courage to break out of the shackles and rise towards a better destiny in addition to helping the police to nail the culprits.

There have been instances where in the children were so afraid of police with stories as well as image of police brutality that it often took lot of time to allay their fears and establish a congenial rapport with them, remove that hostility and build a confidence that police is acting in their best interest.

Child in Conflict with Law

First of all it has to be realized that any interaction with a juvenile delinquent is an opportunity to prevent him from committing the crime again. This missed opportunity often leads to juveniles downslide into involvement in repeated, serious and often violent crimes.

The jj act gives lot of discretion to police while dealing with children. The very concept of giving the discretion is so that the police person can act responsibly in the best interest of the child. As stated earlier, the police at the first point of contact with CICL and decides whether the child will be a part of criminal justice system at all or not. Thus the most important decisions in law enforcement are made by the police officers. At this point of contact is required the most balanced and appropriate response.

Under the JJ Act there are three categories of juvenile offenders, firstly those involved in petty offences where in the police officer has been given the discretion to sort the matter at the PS itself without resorting to any procedural requirements. The second category is of juveniles involved in non serious offences i.e. those entailing punishment of less than 7 years under the IPC. In this category the police officer can apprehend the juvenile only when it is in his best interest and then also can state that the child be treated as CNCP rather than the one in conflict with law. In serious offences wherein the punishment is more than 7 years, the police officer again has discretion on how he wants to treat the child.  Thus the discretion comes with a responsibility to see to it that the police child encounter results in a positive intervention.

What is required to fulfill the objectives of JJ Act is sensitive, proactive and dedicated policing wherein the theory can be converted into practice because on the police interaction lies the outcome of a situation as well as the future of the child. Now the question that arises is how to make the force proactive? what are the kind of officers who are becoming JWOs? what is there orientation and interest? what are the perks and resources available with the commensurate challenges in handling  juveniles?

Till these questions are dealt with, we have to make do with getting the job done through administrative directions and strict supervision. Thus we need to develop code of conduct for police personal in the lines of SOPs while dealing with children in different situations. Next step is involving the society at large. We need to rope in NGOs, other public spirited individuals, RWAs and other institutions like state legal service authorities which not only help the police agencies but also act as checks through their feedback mechanisms.

In Delhi Police, the SJPUs were created in each and every district. To bring about attitudinal and behavioral changes, training and sensitization programs were conducted for police officers at two level i.e., the police station level for all the functionaries at all level who are working in the field and at State level for all the JWOs of the Police stations. The idea was to have a sensitized police force at all levels including the field staff that invariably were the first point of contact with the child. The unique part of the police station sensitization programs is that it is being done by the NGOs working in the field of child rights. The NGOs resource persons visit the police stations regularly and interact with the police staff at all levels thus bringing in an outsiders perspective on how Delhi police is responding to children issues.

In addition to this we have an excellent networking with governmental as well as nongovernmental organizations working on child rights. It is a kind of symbiotic relationship wherein both are working for a common goal in an atmosphere of trust, support and mutual respect.  The end result is that NGOs and other organizations now work hand in hand with police in the best interest of the child.

 

PROBLEMS FACED BY POLICE in performing their duties vis a vis children

One of the major problem faced is that there is still no separate exclusive JWO or SJPU in the distt. Role conflict and lack of time as well as lack of logistic support affect the expectations from the police as the time and patience required to deal with the child is seldom there. Some of the other problems faced are

  1. the need for specialized training for appropriate handling of children
  2. the role conflict experienced by the police officer in solving a crime and helping the child.
  3. low community participation in addressing juvenile delinquency.
  4. poor police image and perception makes it difficult to establish a rapport with the child and to work within the community with mutual trust and goals.
  5. police has very little intervention or say when it comes to the orders for release or incarcerations  given by the JJBs. police rarely has any role in the after release processes that too when rules state that juvenile delinquency prevention is also one of the role of the JWO. Infect some of the orders of JJB have criticized the police officer from visiting the juvenile offender.
  6. the important point is that the positive efforts of the police do not get reflected in their output as it is measured more on crime and law and order data thus the stakes or value additions for taking on this additional work is not there in our tangible goal oriented organization as well as society.

Need of the hour is to deal with juvenile delinquency and cncp in a holistic manner, addressing at risk families so that preventive strategy can be put in place. At present there are not enough institutions and programs to help the delinquents to re-integrate in society and lead the life without crime. At times the trust that they can indeed successfully do so is also missing. Recently prayas has taken up this initiative and have started a program “yuva connect” in this regard.

Police actions have to be accompanied by actions from other institutions. Police has a limited role and cannot make any promises vis a vis resources, professional counseling and reintegration and on its own has nothing much to offer. What is required is a holistic interdepartmental approach in dealing with the delinquent and preventing them in future. In the absence of any concrete and effective rehab program and liberal courts and the fact that the repeat offenders are ever increasing, forming gangs, becoming hardened and getting involved in heinous crimes, there is chronic frustration in the police and thus the whole JJ system appears to be more symbolic than actually addressing the issue of juvenile delinquency.

Also we need to inculcate responsibility in the juvenile for his acts and omissions, the intervention of JWO should be encouraged to ensure that juveniles do not return to crime. The community service should be encouraged for reparation of their wrongs and last but not the least there is a need to develop competencies to develop the delinquents as productive citizens.

http://dpjju.com/index.php?option=com_content&view=article&id=374:p&catid=25:the-project

Paper delivered by Ms. Suman Nalwa, Addl.DCP/SPUW&C, Nanak Pura, New Delhi to National Seminar on Access to Justice-What it means to a child on 9th & 10th July, 2011 at Hall No. 6, Vigyan Bhawan, New Delhi