'What Use Of Keeping Accused In Jail For Optics?' : Supreme Court Stresses Need For Effective Prosecution

During the hearing of a plea seeking cancellation of interim bail granted to businessman-Suryakant Tiwari in the Chhattisgarh Coal Levy 'Scam' case, the Supreme Court today lamented that accused these days are kept in jails only for the 'optics of prosecution', while states follow 'archaic' prosecution strategies and fail to prioritize protection of witnesses."We only send people to jail and feel that there is an optics, that criminal law is in motion", orally remarked Justice Joymalya Bagchi. Reiterating an earlier concern regarding prosecution agencies' laxity in witness protection, the judge added,"Only way of protecting witness is to keep an accused in jail. And knowing technology today, the physical and spatial distance is of little consequence in influence. There is hardly any state prosecuting agency which really invests its money, time, and energy to ensure an environment of safety and confidence in the witnesses. So what is the use of keeping an undertrial in jail and creating optics of prosecution?""You can ask your state how much money they have allocated for witness protection...None...rather jails have become havens to operate, they are (accused) operating from there, they (jails) are the safest place for them now", remarked Justice Surya Kant in a similar spirit.A bench of Justices Kant and Bagchi was dealing with two cases - one, filed by Tiwari seeking interim bail in the DMF 'scam' case, and second, filed by him in relation to the Coal Levy 'Scam' case, where State of Chhattisgarh has filed an application seeking cancellation of bail granted to him.After giving a substantial hearing to Senior Advocate Mukul Rohatgi (for Tiwari) and Senior Advocate Mahesh Jethmalani (for State), the bench indicated that it would pass the order in some time.Briefly put, the State seeks cancellation of Tiwari's bail on the alleged ground of his threatening co-accused Nikhil Chandrakar while in jail, and involvement in the DMF scam. He has been in jail for about 3 years following registration of 3 cases - the money laundering case related to Chhattisgarh Coal Levy 'scam', the EoW case related to the Coal Levy 'scam' and a case related to the DMF 'scam' (where co-accused Saumya Chaurasia and Ranu Sahu have been granted interim bail).During today's hearing, the bench orally noted that the trial in the subject case is likely to take substantial time, after Jethmalani informed that about 300 witnesses are sought to be examined. Although the senior counsel claimed that atleast half of the witnesses may end up getting dropped, the bench opined that even a trial with 50 witnesses would be time-consuming, considering lack of requisite judicial infrastructure across the country.Speaking on the state of investigations being conducted by investigating agencies, Justice Bagchi posed to Jethmalani,"You're talking of judge-to-population ratio, you're absolutely right, it should be ranked up. But do judges do justice vacuum? They require stakeholders like investigators, able prosecutors...till now, does your state have a dedicated investigation wing? You have an EoW department, you don't have forensic accountants, who are joined in investigation. You feel that in financial crimes like this are solved only through confessions. So wanting confession, [you put] someone in jail and try to prove case. Is this an archaic 19th century investigation? Look at the state of your investigation. Tomorrow, you will have offenses on the dark web, where transfer of funds will be through cryptocurrencies. Where is your capacity building in that area? Today, be thankful that the alleged bribe-takers took money in fiat currency."Justice Kant, on a similar note, added that most states do not have the financial capacity to constitute special, designated courts, which can carry on day-to-day trials."Most of the states nowadays are struggling every month to generate revenue and pay salary. On 31st or by 7th of next month, their pockets are empty. Then all state machinery collecting revenue here and there, they pay salary and [spend] on yojanas...they don't have money to spare...they absolutely don't have priority to establish special courts, dedicated courts, etc. for day-to-day trials", remarked Justice Kant.The judge further emphasized the need to conduct more scientific investigations, without relying heavily on witnesses to prove everything, and flagged the downsides of asking agencies/trial courts to complete trial/investigation in a "tearing hurry". "That can damage the case. The prosecutors and judges are then under tremendous pressure...if some witness does not come, he (prosecutor) will give up the witness and that might break the chain of the prosecution case", commented Justice Kant.The judge also conveyed to Jethmalani that in 2-3 matters, the Court has impressed upon the Union to constitute special courts which can conduct day-to-day trials. "For these kind of offenses, unless you have courts where day-to-day trials can take place, the ...

'What Use Of Keeping Accused In Jail For Optics?' : Supreme Court Stresses Need For Effective Prosecution

Debby Jain

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