-Mainul Hosein
The presumption in law one is innocent before trial to finding one guilty of an alleged offence. We have now liberty as fundamental right.
I find it totally unacceptable in law that in a criminal case without non-controversial evidence an arrested person can be made to suffer imprisonment.
An FIR is not an evidence. Even charge-sheet is not considered evidence but it gets special consideration for the reason it is produced by police after investigation. But by examining evidence has to be proved in light of the charge-sheet.
In the past it was a consideration for refusing bail that if one is out one might try to influence witnesses. That is a ground not any more in use. The main considerations are to be sure of one’s presence at the trial and if one is not socially dangerous. One’s presence is also not essential for trial and punishment. We have law to punish in absentia.
Because of easiness to keep a person in jail by an FIR criminal cases are proliferating. The courts are over-burdened with police cases and the arrested ones are desperate to get bail. Most cases are not about serious crimes.
Suddenly the banks are found busy to realise the loan money. The government is not concerned that many industries will be sold as land and not as industry. Many industries will close down and create unemployment. Some will be forced to sell at the lowest price in auction and the bank will sue for balance amount. The banks allowed plunderer to enjoy the stolen money. Now no interest is shown to save industries though a genuine financial crisis exists.
The troubled industries need cooperation of the government to survive the devastation of the pandemic. Governments of rich countries took special measures to save the industries. No such thinking is happening here. Finding no other way they come to court for payment by installments. The banks could also do it, but are reluctant to do so, unless clients are influential. Sorry to say, but our banks do not think how to encourage investment and help them prosper.
Getting bail is the hardest for the view the bail helps the criminals, though not granting bail is against the fundamental right of liberty. The people come to the highest court for bail which hardly happened earlier.
The courts are under too much pressure. First trial starts with police arrest and over getting bail. It is known to everybody that FIR is merely information about the occurrence of a crime. It has no evidentiary value.
The law says one is not guilty before he is proved so before a court of law. However frail its existence may be, we still have a Constitution and fundamental rights guaranteed by the Constitution. Everything cannot be purposeless and useless just because of an FIR.
After arrest a person must be produced in court for court’s protection.
The matter for consideration is what to do with the arrested person produced in the court. Whether he should be kept in jail custody or judicial custody (that is bail) for ensuring his presence in court for the trial. The purpose is to ensure his presence at the time of trial. But at FIR stage it has become a practice the arrested person has to make it reasonable to believe that the chances of finding him guilty is thin.
Thus the purpose is not to begin his punishment for the reason his name is mentioned in the FIR.
In a one-sided way it is almost impossible to convince that the information is not true. So FIR allegation is not sure to begin process for refusing bail. Allegation might be serious but that is no proof the arrested person has committed the offence.
It is also a fact of law that the accused cannot avoid trial and punishment by evading presence in the court. He can be tried and punished in absentia. Yet, the burden of the FIR allegation hangs heavily over question of getting bail. Are our police that trustworthy?
The police case is most easy in our country and thousands of people are in jail for months if not years before bail, though not found guilty. When bail is denied on police information, false cases are a good business. Our courts know it, yetbut are helpless. Two judges have to agree in High Court Division for granting bail.
The bail for judicial custody should be the logical thing to apply bail discretion when a person is produced before the court for the court’s protection. The priority should be judicial custody.
The government lawyers’ expectation is arrest should mean imprisonment. Things must not wait for the trial. This is the system of police justice.
We have been long habituated to the idea that arrest must follow imprisonment. There cannot be justice if social conditions are not a matter of importance. The police have no autonomy. They are not free as people’s police for giving protection of law. The law is an ass in the real sense in our country. Only the court is acting as moderator of the situation. Otherwise FIR should have sufficient ground for conviction.
Everybody knows drug is a big business of powerful people. The people in jail without trial are unemployed youths exploited for their poverty.
The courts’ time is consumed by bail matters in thousands of doubtful drug cases against young ones. But let ten powerful bosses knowingly engaged in drug business be arrested and sent to imprisonment, there will be drastic cut in drug cases. The small carriers of drugs for marketing will not be easy victims of poverty.
It must also be taken into consideration why safe jobs are not created for the young ones by the government. The question should also be kept in mind what the police and agencies are doing to prevent crimes.
The fact is crimes are increasing. Why the courts should take responsibility for keeping people in jail relying on FIR because of government’s failure to stop the lucrative business at a heavy cost to society. Serving in jail is not a matter of fun. Refusing bail is not working to prevent crime. There is something wrong in the policing system. Where police can be used for protecting big criminals, many others will be arrested except the drug lords.
The second stage of the trial begins years later when the court holds the hearing of witnesses. The responsibility of prosecution begins. Now the prosecution has to prove the accused is guilty. Here prosecution’s performance is dismal. For the long lapse, many witnesses cannot be traced. Some of them have been bought off. So conviction is more well-neigh difficult.
Thus an accused is punished in two ways. Punishment in jail by refusing bail before trial depending on FIR information. He is punished a second time if he is convicted after trial.
There is no easy way of dealing with crimes. Refusing bail reduces crime is not borne out by the facts.
For spreading corruption and crime no government is necessary.
Our criminal justice system is to be humanised by judges as a last hope. This is done elsewhere also where it is possible. The courts should grant bail as one’s fundamental right to liberty and for the legal presumption of innocence.
