ARVIND KEJRIWAL, BAIL AND CRIMINAL JUSTICE FRAMEWORK IN INDIA
Grant of bail by the Trial Court to Arvind Kejriwal and staying of the same by the High Court with electrifying speed has raised several questions regarding criminal jurisprudence in India. This article examines critical aspects of criminal justice framework.
CRIME AND THE STATE
The most primary function of state is to prevent crime and to defend the country against external aggression. The remaining all functions of state are optional. Every crime is supposed to be crime against State and State investigates cases of cognizable offences at its expense. The Core of Criminal Justice system is investigation and trial. The investigation is conducted by Police and subsequent to filing of chargesheet, trial is conducted by Court. Bail is not core of Criminal Justice Framework.
POOR INVESTIGATION FRAMEWORK
Investigation conducted by police is outdated and extremely slow. Investigation is dependent on testimonies of witnesses. It is difficult of bring witnesses to court as Police has made such reputation over hundreds of years that nobody wants to get involved in matters related to police. Custodial interrogation has also become irrelevant as Article 20 (3) mandates that nobody can be forced to be a witness against himself . Further the Supreme Court has held in several cases that custodial violence is in violation of Article 21. Thus, the Police has now to be smart and has to develop capability to collect evidence without any custodial interrogation of an accused person.
SLUGGISH TRIAL FRAMEWORK
Although a reasonable judicial framework is in existence, this framework is so sluggish that trial takes years and years. Many of cases are decided after more than ten years. Adjournment has become rule and trail an exception.
If Criminal Justice Framework has to remain meaningful and to have deterrent effect no trial should take more than a year.
BAIL NOT JAIL
Justice Krishna Iyer had observed that basic rule is bail not jail. During pendency of investigation or trail an accused cannot be expected to be in Jail particularly when the investigation and the trail can take years and years. Only after conclusion of trail can an accused person can be convicted or acquitted. If an accused is acquitted after ten years and those ten years are spent in jail, who will be responsible for it ? Is there any compensation which will be sufficient enough ?
Some Acts including PMLA has made grating bail to the accused difficult putting stringent restrictions on granting of bail. These restrictions are misplaced. These interventions attempt to resolve symptoms of disease and not the disease itself. The real issue is faster and quality investigation and swift trail. Putting restrictions on bail cannot be replacement of poor investigation or unending trial.
Further the reasons for keeping accused in jail during investigation or trail is getting weaker and weaker over the years. Custodial interrogation is becoming irrelevant as an accused can not be forced to answer any questions which can implicate him. No custodial violence can be inflicted on him. Investigators have to develop capability to collect evidence de hors the accused.
BAIL TO ARVIND KEJRIWAL BY TRIAL COURT
The bail granted to Arvind Kejriwal by Trial Court by order dated 20.06.2024 was perfectly correct. At the time of granting bail a Court does not need to go through all the materials as it is not conducting trial and acquitting the accused. Many puritans are expecting a Chief Minister to resign after registration of a criminal case against him but reverse is also true. A chief minister who is responsible for running administration of a state can not be infinitely kept in jail during investigation or trial which can take years and years. Suppose Mr Arvind Kejriwal remains in jail for five more years and after that he is acquitted, who will pay compensation for long drawn imprisonment and loss of governance to Delhi ? No body has stopped the ED to do faster investigation or a trial court to conduct faster trial. Why should an accused suffer from inefficiency of investigating agency or trial court ?
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.