Why Arvind choose Jail over Bail
Harassment of accused persons in criminal cases is incredible. They have to keep on appearing in courts again and again after signing a bond for their continued appearance. The proceedings keep on getting adjourned again and again for different reasons. Is this at all required under the procedure laid down in the code of criminal procedure? Most certainly Not.
The CrPC permits an accused person to be represented by a lawyer of his choice. The code also permits the court to exempt the personal appearance of an accused represented by a lawyer. The Supreme Court has held that even for framing charges against an accused, his presence is not required and the lawyer’s presence is enough. The code provides that if the personal attendance of an accused is required on a particular date, like for his identification, the court can pass an order to require such personal attendance on that specific date. In summons cases, Sec 317 also permits the questioning of the accused being dispensed with.
Thus an entire trial can be completed without requiring the presence of an accused on a single date. In fact it is only the lawyer who plays a role in the proceedings and the accused remains just a spectator.
The question needs to be asked as to why in such situations, the magistrates insist on the personal presence of all accused persons on every date and get bond’s signed by the accused persons with or without sureties for their appearance on every date.
It is true that this practice is in the interest of the members of the bar like me, because when the accused has to personally come on every date, he is bound to bring fee every time.
One consequence of this practice is that each magistrate has to waste several hours of his time every day in deciding applications for exemption from appearance of a particular accused on a specific date for special reasons to be shown in an application. On the grant of such exemption, the matter gets adjourned to some other date. If an accused, in spite of the bond does not turn up on a particular date, the court has to issue a non bailable warrant for his arrest and production apart from initiating proceedings for the forfeiture of the bail amount. If an accused happens to be in jail and not on bail, the magistrate has to issue a production warrant and the jail staff has to bring the accused to the court.
All this is totally unnecessary and the Bombay High Court has delivered a judgment giving a direction to all subordinate courts to exempt the personal appearance of all accused persons in all criminal cases. If however the personal presence of any particular accused is required on a specific date for a specific purposes the court can always make an order requiring a particular accused person to appear in person on a specific date. I am sure that this one simple directive must have doubled the disposal ofcases by each magistrate. What is however even more important is that the accused persons will be saved from the immense harassment of having to appear before the courts again and again. Their trauma of Tareekh pe Tareekh will be a thing of the past.
If Arvind Kejriwal’s decision not to execute a bond for appearance and to go to jail instead secures a general directive from the supreme court to all criminal courts in the country on the lines of the directive given by the Bombay high court, it will bring enormous relief to millions of accused persons in the country. Then Arvind Kejriwals stay in jail will not be in vain.
Even though Sec 88 of CrPC give a discretion to the magistrate to require or not to require the execution of a bond by accused persons, few magistrates are willing to exercise this discretion. Some magistrates do not even understand that it is Sec 88 which applies to such situations and not Sec 436, which applies only to an arrested person who applies for his release by furnishing a bail bond.
Shanti Bhushan more
The CrPC permits an accused person to be represented by a lawyer of his choice. The code also permits the court to exempt the personal appearance of an accused represented by a lawyer. The Supreme Court has held that even for framing charges against an accused, his presence is not required and the lawyer’s presence is enough. The code provides that if the personal attendance of an accused is required on a particular date, like for his identification, the court can pass an order to require such personal attendance on that specific date. In summons cases, Sec 317 also permits the questioning of the accused being dispensed with.
Thus an entire trial can be completed without requiring the presence of an accused on a single date. In fact it is only the lawyer who plays a role in the proceedings and the accused remains just a spectator.
The question needs to be asked as to why in such situations, the magistrates insist on the personal presence of all accused persons on every date and get bond’s signed by the accused persons with or without sureties for their appearance on every date.
It is true that this practice is in the interest of the members of the bar like me, because when the accused has to personally come on every date, he is bound to bring fee every time.
One consequence of this practice is that each magistrate has to waste several hours of his time every day in deciding applications for exemption from appearance of a particular accused on a specific date for special reasons to be shown in an application. On the grant of such exemption, the matter gets adjourned to some other date. If an accused, in spite of the bond does not turn up on a particular date, the court has to issue a non bailable warrant for his arrest and production apart from initiating proceedings for the forfeiture of the bail amount. If an accused happens to be in jail and not on bail, the magistrate has to issue a production warrant and the jail staff has to bring the accused to the court.
All this is totally unnecessary and the Bombay High Court has delivered a judgment giving a direction to all subordinate courts to exempt the personal appearance of all accused persons in all criminal cases. If however the personal presence of any particular accused is required on a specific date for a specific purposes the court can always make an order requiring a particular accused person to appear in person on a specific date. I am sure that this one simple directive must have doubled the disposal ofcases by each magistrate. What is however even more important is that the accused persons will be saved from the immense harassment of having to appear before the courts again and again. Their trauma of Tareekh pe Tareekh will be a thing of the past.
If Arvind Kejriwal’s decision not to execute a bond for appearance and to go to jail instead secures a general directive from the supreme court to all criminal courts in the country on the lines of the directive given by the Bombay high court, it will bring enormous relief to millions of accused persons in the country. Then Arvind Kejriwals stay in jail will not be in vain.
Even though Sec 88 of CrPC give a discretion to the magistrate to require or not to require the execution of a bond by accused persons, few magistrates are willing to exercise this discretion. Some magistrates do not even understand that it is Sec 88 which applies to such situations and not Sec 436, which applies only to an arrested person who applies for his release by furnishing a bail bond.
Shanti Bhushan more
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Whatever, in the end AAP always ends up making a fool of itself. I think Arvind Kejriwal should change the people who advice him. more
Jul 01
it is surprising that how Magistrate has taken such decision if Law is settled that No Bail is required . more
May 27
Dear Mr. Shanti Bhushan, Thanks for expressing your view point on leagalities. In case you are right then you should have moved the High Court by now and got AK released. AK has already, in a impulsive monent, politisized the issue, now you are only trying to justify his action more
May 27
All agreed Madam Seema Shah, but if all these had to be taken up personally by AK how much time AAP may need to correct as there may be thousands of issues like that. As terrorists us suicide bombers, use others shoulder and shoot! Be available for priorities. Pay under protest, add to your list of pending things, act when the time comes. Or it should be a team or group in AAP and not only AK in the forefront so that any can take up other priorities. Today you feel about something but tomorrow your vies can change. mistakes can happen but decisions could be changed. now the priority may be something but it may not be same if any other crops up. more
May 26
