NEED FOR A MORE HUMANISTIC APPROACH BY THE LEGISLATURE IN SPECIAL STATUTES IN MATTER OF GRANT OF BAIL.

NEED FOR A MORE HUMANISTIC APPROACH BY THE LEGISLATURE IN SPECIAL STATUTES IN MATTER OF GRANT OF BAIL.
BY- ADV. AABAD PONDA, PRACTICING ON THE CRIMINAL SIDE OF THE BOMBAY HIGH COURT.
With the alarming rise in the number of under trial prisoners in the entire Country there is a need for the Legislature to rethink and make suitable Amendments in various statutes relating to the provisions governing Bail and Bail Bonds. The need for the same arises because crime only multiplies by the association of criminals in jails for long durations of time. This unhealthy association of under trials leads to crime increasing and conspiracy is being hatched in jails by these under trials whose idle minds act as devils workshops.
In special statutes like the Narcotic Drugs and Psychotropic Substances Act 1985, Unlawful Activities Prevention Act, 1967, Maharashtra Control of Organized Crime Act, 1999 and similar statutes which are made applicable in other parts of the country, grant of bail on humanitarian grounds like sickness, infirmity, being under sixteen years of age and being a woman is not permissible. In a case of a murder or even multiple murders for that matter be it by an individual or even pursuant to a conspiracy, on humanitarian grounds referred to above even Magistrates who are in the lowest rung of the Criminal Judiciary are empowered to grant bail. However even the High Court much less the Sessions Court are virtually disempowered on these humanitarian grounds from granting bail to such persons by virtue of the requirement of stringent conditions to be fulfilled in such special statutes to grant bail, which statutes do not admit or provide for provisions analogous to those under the Criminal Procedure Code like the first proviso to Section 437(1) of the said Code which empowers Magistrates to grant bail as stated above.
The Legislature needs to incorporate provisions analogous to the said provision under the Criminal Procedure Code in all statutes where ordinarily a person is required to fulfill special conditions to avail of bail on merits. Surprisingly in the present century while enacting the Prevention of Money Laundering Act, 2002, the Legislature has made a provision for grant of bail to such money launderers on the above humanitarian grounds by virtue of Section 45 of the said Act. If the Legislature can provide for such humanitarian grounds while amending the draft of the said Act before it was incorporated,  then there is no reason why persons who are genuinely entitled to bail on such humanitarian grounds and who are framed in false cases, should languish in jail for years only  because the dockets of the trial courts are bursting at their seams!!
Such an approach will be welcomed by the States also since they will be relieved of the burden of keeping and maintaining under-trials. Further crime mushrooms and grows infectiously in jails particularly when there is an unholy association of under-trials who are already victims of their own peculiar follies and further frustrated by the delay in trying them. It is never heard of that public prosecutors have granted no objection to release persons on bail covered under special statutes as they fear the repercussions of their actions would be wholly misunderstood and therefore they fail to rise to the occasion even when there is a dire need for the same. The courts cannot be helpless in such situations. After all courts of law are meant for dispensation of justice which must not only be done but also seem to be done. Pondering on this issue  is the dire need of the hour. Repercussions  of the same can have important consequences directly upholding the rights of under-trials enshrined in Article 21 of the Constitution of India.


Comments

Post a Comment

Popular posts from this blog

Why Aires Rodrigues v. Vishwajeet P. Rane (2017 SCC OnLine SC 219) may need to be relooked at by the Supreme Court of India

Why Aires Rodrigues v. Vishwajeet P. Rane (2017 SCC OnLine SC 219) may need to be relooked at by the Supreme Court of India By -Advocate Aabad Ponda B. A. LL.B (Practicing in the Bombay High Court on the Criminal Side) "Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, though outspoken, comments of ordinary men." (vide Andre Paul Terence Ambard Versus The Attorney-General of Trinidad and Tobago AIR 1936 PC 141) While I have the highest respect which cannot be described by mere words for the Hon'ble Supreme Court of India I feel that the above Judgement may be required to be reconsidered at some stage by the Hon'ble Apex Court and I attempt to pen down my reasons for the same as under. The issue which arose in the above Judgment was with reference to a notification issued prior to the coming into force of the Criminal Procedure Code, 1973, by virtue of Section 10 of the Criminal Law Amendment Act, 1932. The ...
Read more

SECTION 50 OF THE PREVENTION OF MONEY LAUNDERING ACT AS IT IS WORDED IS BEING MISUSED IN VIOLATION OF THE FUNDAMENTAL RIGHT AGAINST SELF INCRIMINATION UNDER ARTICLE 20(3) OF THE CONSTITUTION OF INDIA.

SECTION 50 OF THE PREVENTION OF MONEY LAUNDERING ACT AS IT IS WORDED  IS BEING MISUSED IN VIOLATION OF THE FUNDAMENTAL RIGHT AGAINST SELF INCRIMINATION UNDER ARTICLE 20(3) OF THE CONSTITUTION OF INDIA. By:- Aabad Ponda advocate Bombay High Court practicing on the Criminal side.  The scheme of the Prevention of Money Laundering Act is such that unless an offence is a scheduled offence and falling in parts A, B or C of the Schedule it would not attract the provisions of the Money Laundering Act. This is clear from the definition of money laundering  defined under Section 3 of the said Act which requires there to be proceeds of crime as defined under Section 2(u)  and which in turn relates to a scheduled offence. In other words the offence of money laundering is only in respect of offences found under the schedule to the Act which is located after Section 75 of the Act and has offences under various statutes which constitute the essential ingredient for an offence...
Read more

NEED FOR AMENDMENT TO SECTION 378 OF THE CRIMINAL PROCEDURE CODE 1973.

NEED FOR AMENDMENT TO SECTION 378 OF THE CRIMINAL PROCEDURE CODE 1973. By -Advocate Aabad Ponda B. A. LL.B (Practicing in the Bombay High Court on the Criminal Side) Chapter XXIX Of The Criminal Procedure Code 1973 deals with appeals. An appeal is a creature of the statute and no appeal lies from any judgment or order unless it is expressly provided for. Such a provision that permits the filing of an appeal must find a place either in the Criminal Procedure Code itself or in any other law for the time being in force by virtue of Section 372 of the Criminal Procedure Code 1973. This means that there must be a specific provision that permits a party to file an appeal against an appealable order from any judgment or order of a criminal court which is sub-ordinate to the court hearing an appeal. Section 378 of the Criminal Procedure Code deals with appeal against acquittals whether on a private complaint or on a police report. Section 378 of the Criminal Procedure Code is the princ...
Read more