Why should arguments on bail applications consume days together? Thereafter, why can’t the judge pronounce orders forthwith? And why should the judge keep adjourning such matters? These are frequent questions from knowledgeable but bewildered public. I — who spent more than four decades in black robes — keep wondering about the same, and that too with the knowledge that in India at any given time the number of undertrial prisoners exceeds that of the convicts.
Codified law on criminal procedure dealing with arrest and bail, among others, was in existence in India since the year 1852. The consolidated uniform procedure code for the whole of British India came to be enacted in 1882. Notwithstanding many amendments to the code and statutorily prescribing several guidelines, granting or refusing bail is within the discretion of the court — or is left to the “hunch of the Bench” — to borrow Justice Krishna Iyer’s phrase. During these 150 years of administration of criminal justice system the broad criteria for refusing bail to an accused have been crystallised in a system that presumes everyone innocent until proved guilty, and pre-trial jail should be an exception; hence bail should be a matter of course. Accordingly, the accused merely has to petition the court to set him free. Criteria for granting bail have not been attempted, except to the extent laid down in the code.
The judge has to ask himself three broad questions. First, is there a likelihood of the accused fleeing the country to escape conviction and punishment? The judge has to take a prima facie view of allegations and if the offence alleged carries the sentence of death or imprisonment for life, a conclusion that the accused may flee may be justified. Hence bail may be refused. The second part of the same question is about the personal safety of the accused once he is outside the jail. The powerful “behind the scene” culprits may eliminate the front man, thus putting an abrupt end to the process of justice.
Way back in 1977, Justice Krishna Iyer as a judge of the apex court declared: “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.” This law still holds the field.
Will the worthy accused like B.S. Yeddyurappa and A. Raja flee the country? None of them will be sentenced to death and anything less should be manageable for them in India. And their personal safety may not be particularly in jeopardy.
Just in case any of them flees, so be it — good riddance. However, the case of Suresh Kalmadi may be different until the whole truth about his dealings is unearthed.
The second question is: will the accused misuse the court granted liberty and influence witnesses or otherwise tamper with evidence? None of our worthies do such dirty jobs with their own hands. They get them done through others. Hence, it matters little if they are inside the jail.
The third question facing a judge is about the likelihood of the accused on bail committing more crimes. Instances of an accused on bail facing serious charges getting hired to eliminate a business rival or an enemy for a big enough incentive are not unknown. This aspect is wholly inapplicable to the cases of illegal mining in Karnataka or 2G spectrum scam or the Commonwealth Games scams as they commit crime only while in office. These considerations are common to all countries under the common law system but the process is quicker.
Rajat Gupta, the US-based businessman of Indian origin with a potential to be sentenced for 100 years in jail for the alleged offence of insider trading, was released on a bail bond of $10 million, which is a pittance from his point of view. Dominique Strauss-Kahn, the former chief of International Monetary Fund and accused of sexual offence against a hotel maid, was through a quick process put to house arrest. However, the continental system is notorious for long periods of pre-trial, preventive detention or remand — and, as a rule, no bail is granted, though occasional release on parole is possible. Under any system the court has no power to covert pre-trial detention in to an advance installment of punishment by pre-judging the offence at the stage of bail hearing .
The Karnataka Lokayukta conducted its investigation that was more suited to the continental system with no participation by the accused. The documents and evidence relied upon would have been good enough in the continental system to go into a dossier and then form the basis of conviction.
However, in India, the witnesses who deposed in private before the agencies of the Lokayukta will be subject to cross-examination. The documents relied upon are yet to pass the test prescribed by the Indian Evidence Act. The entire burden of proof of the guilt — even with the special prescriptions under the Prevention of Corruption Act that puts greater burden on the accused — is on the prosecution.
The fundamental principles of proof beyond reasonable doubt will still hold the field and chances of Mr Yeddyurappa or for that matter, Mr Raja escaping conviction cannot be ruled out. The case of Sudheendra Kulkarni and company — an accused in cash-for-vote scam — deserves a place in future textbooks.
How long is long enough pre-trial detention? Mr Yeddyurappa has suffered loss of office on account of a report by a former judge, though it is comparable only to an investigation report of a police officer; but Lalu Prasad Yadav who not only had a police report against him but also was indicted by the court, could in the meanwhile enjoy long enough tenure as a Union Cabinet minister. These are indicative of systemic deficiencies. But a discretionary power of a magistrate to extend pre-trial detention is a curable malady.
To the question “why unending court hearings in bail petitions?” where the accused need say nothing except pray for release and the prosecution cannot always have any unusual grounds to oppose the prayer, the answer is “some judges do take control and decide fast — though missing media attention”.

The writer, a senior advocate in the Supreme Court, was formerly additional solicitor-general of India.
He can be contacted knbhat1@gmail.com