There's An Element Of Truth In Allegation That Courts Aren't Granting Bail In Deserving Cases : Justice Abhay S Oka

Justice Abhay Oka, Judge of the Supreme Court, said that there was an element of truth in the public criticism that the Courts are not granting bail to deserving persons.

Talking about the issue of granting bail, Justice Oka remarked that bail hearing was earlier simple but now the culture of "reply, rejoinder, sur-rejoinder" introduced in bail jurisprudence, is consuming time. He stated that since special enactments like NDPS place the burden on the accused, regular bail matters get a back seat. The judge added that the new and special enactments like the PMLA, etc mandate a judge to make prima facie findings regarding the merits of the case.

A judge cannot take any decision based on their own perceptions or the pressure mounted by the society, the media or even the political leaders as a conviction based on perception, which usually can be said to be a 'moral conviction' has no place in our criminal jurisprudence, said Justice Abhay Oka.

The judge also emphasised that the time has come for the courts to send out a strong message to the media and particularly the political leaders in the country that whether to convict someone or not is the prerogative of the courts alone.

"A judge dealing with a criminal cases cannot take decision on the basis of his perception. His job is not to decide whether a person has committed the offence but his duty is to see the legally admissible evidence on record and appreciate it and record whether the guilt of the person is proved beyond reasonable doubt. We as a judge cannot go by our perceptions or what social media says or what victim says. Our duty is to grant conviction only when legally admissible evidence proves the guilt. If you grant conviction only on the basis of perception, it is moral conviction. Such convictions have no place in our criminal jurisprudence," Justice Oka said. 

The judge further pointed out that the perception about the job of the judges is often 'misunderstood' by the common man and the media and political leaders. 

"We see so many heinous offences these days. Then we see political leaders who go on platforms and say they will ensure the accused is arrested and hanged and it is echoed in social media and even common man thinks the same way. Some day we will have to tell these leaders that look it is the prerogative only of the courts to decide what punishment is to be given. But all this affects the minds of the common man," Justice Oka emphasised. 

Speaking about media trial, the judges said the concept is no longer limited to media alone but has expanded to trial by social media and other platforms too, where judges are criticised for their judgments.

"I always say every citizen of the country has to right to criticise our judgments but the criticism must be constructive. But this media trial and social media trial is different. All this happens because even educated people in media, they lack elementary knowledge of the basic concepts of our criminal jurisprudence. They don't understand the difference between bail and acquittal," the judge said. 

On Needless Arrests

Further, the judge referred to Section 41 CrPC, and pointed out that the provision doesn't mandate that every accused must be arrested and said that the presence of accused can be secured by issuing summons. Noting that in some cases police may only arrest due to the pressure from political leaders or the media, the judge commented that this is a “sad reflection of retributive tendencies still present in society.”

Justice Oka was delivering a lecture on the topic “What ails our criminal justice system: Some thoughts” at the 3rd Ashok Desai Memorial Lecture organised by the Bombay Bar Association (BBA).

Problems faced by victims and witnesses

Justice Oka commented that there are many ailments for the criminal judicial system in India, which he said begins with the 'difficulty' citizens face to lodge an FIR in a police station. He pointed out even the challenges faced by police authorities, who have other duties beyond investigating into offences. It involves maintaining law and order, controlling agitations, natural calamities and even face political pressure. He also mentioned that a third of police constables live in slum, hindering their performance.

Talking about the manner of investigation in criminal case, Justice Oka observed that a complainant has no control over the manner in which the probe is carried out. He noted that while some approach the High Court seeking transfer of investigation to other authority, some cannot afford to go to court. He remarked, “This is one area where we need to have a solution or create a mechanism wherein a victim can go to the authority and request to look into the manner in which probe is carried out.”

He further highlighted the need for victim and witness protection, noting that it may take many years for a trial to begin without any protection to victim or witnesses. He commented that a delay in taking witness statements has negative consequences such as non recollection of facts, and thus he opined that a change in the statute is required.. 

According to Justice Oka, the problem of piling backlog of criminal cases across the country cannot be resolved merely by recruiting more judges but a robust court infrastructure along with adequate number of judges and support staff is needed for the same. 

The judge further cited the rising number of cases of such as those arising from the Negotiable Instruments (NI) Act and matrimonial disputes, which he remarked, have “destroyed our criminal courts.”

On S.498A IPC
On Section 498A IPC, he opined “Of course there is criticism that sec 498A is misused. But there is an other side of it. Some cases may be frivolous. But we must understand, who advises the wife to file 498A cases? It is members of our fraternity. But in villages, and remote places, genuine cases of 498A can be seen. Women are silently suffering domestic violence. This is unfortunate even after 75 years of our Constitution.”

Justice Oka further talked about the issue of people being framed in criminal matters, especially in cases where an accused undergoes a sentence of 10 or 20 years jail term but are later acquitted by the higher courts.

"The delay is working against a fair system. Everyday, we grant acquittal to people undergone 10 yrs or even 20 yrs jail term. What happens to such an accused? We are hardly aware about the social consequence of branding a person as an accused or arresting him and putting him in jail. These prisoners have one concern, how to get their daughters married? Stigma is attached to entire family. Their children don't get jobs. This is going to create serious issues," Justice Oka said. 

The judge further emphasised the need to recognise the trial and sessions courts as 'constitutional courts' since they are the 'courts of the common men' and can no longer be 'neglected' the way they have been since the last 75 years.

To conclude, the judge said that the legislature, the judiciary, the judges, law enforcing agencies and the advocates must 'come together' to resolve the issues which are ailing the criminal justice system.

(Compiled by Sanjana Dadmi)