NEGLECTED CARDINAL PRINCIPLES…?

May 19, 2018 vikash

While the nation is striving to provide the best justice delivery system to its people, it is
an irony that certain fundamental principles of jurisprudence seem to be unjustly eroded
mostly due to the negligence of those concerned with administration of the justice
system especially the criminal justice system.

It was in this regard that Madras High Court in a case before it expressed concern over
the two oft-neglected cardinal principles, namely that ‘bail is the rule and jail is the
exception’, and ‘persons accused of having committed a crime are presumed to be
innocent unless proved guilty’, being mostly neglected while administering the criminal
justice.

In the instant case Justice MS Ramesh strongly reiterated these principles while
allowing a bail plea moved by a person arrested for having gotten into an argument with
the complainant.

The judge quite rightly came down upon the authorities reprimanding them for casually
pressing for the detention of accused persons, even in respect of petty offences. It is a
fact that the trial Courts have, of late, lost insight of two cardinal principles of criminal
jurisprudence, while dealing with applications for grant of bail. It is really an irony that
despite the Supreme Court having time and again reiterated these cardinal principles,
even in petty offences, matrimonial disputes, criminal and commercial disputes, etc., the
police have been invoking their powers vested to them during the pre-independence era
and unnecessarily seeking remand of these persons.

The Madras High Court rightly stated that even the jurisdictional trial Courts have been
mechanically remanding such persons, overlooking these cardinal principles. As per the
principles of criminal jurisprudence, the detention of the accused would be justified
when the crime in question is a serious one or when the accused is a habitual offender
but unfortunately, instead of confining the use of this measure to such cases, even
those accused of petty crimes were being detained routinely.

The same stands substantiated by the observation made by Justice MS Ramesh that
the persons, who are alleged to have been involved for offences under Sections 294(b)
and 506(i) of IPC and other petty offences are being produced by the Investigating
Officers before the jurisdictional Magistrates for remanding them and most of the time,
such an action is taken even on the same day, on which the complaint is received and
the FIR is registered.

Nowadays cases pertaining to matrimonial disputes, civil disputes, and other

commercial disputes are being veiled with a criminal colour and indiscriminate arrests
are being made across the nation. Today there is a dire need for the authorities dealing
with the criminal justice system to remind themselves of the aforesaid cardinal principles
to restrict the cases in which jailing of the accused is insisted upon. It is hoped that
taking the observations of the Madras High Court seriously, the Investigating Officers as
well as the trial Courts reappraise themselves about these cardinal principles and
cautiously refrain from remanding the persons involved.

The need for arrest should arise only when the Investigating Officer comes to the
conclusion that such an arrest is imminent and absolutely necessary. Demanding
remand in almost each and every case by the investigation officer and granting of the
same denies the presumed to be innocent (accused) the freedom to which he or she is
legally entitled to.

So let the basic principles regarding bail laid down by the then Justice Krishna Aiyar
asserting that ‘bail not jail should be the rule’ be applied in true letter and spirit by those
dealing with the criminal justice system.

May 18, 2018

Bail is the rule, Jail the exception: Madras HCreprimands
authorities
In an order passed yesterday, the Madras High Court made a note
to highlight the two oft-neglected cardinal principles, namely
that bail is the rule and jail is the exception, and persons accused
of having committed a crime are presumed to be innocent unless
proved guilty.

Justice MS Ramesh was constrained to reiterate these principles while allowing a bail
plea moved by a person arrested for having gotten into an argument with the
complainant.

The judge reprimanded the authorities for casually pressing for the detention of
accused persons, even in respect of petty offences. It was observed,

“…the trial Courts have, of late, lost insight of two cardinal principles of criminal
jurisprudence, while dealing with an application for grant of bail or anticipatory bail.

Though the Honourable Supreme Court has time and again reiterated these cardinal
principles… even in petty offences, matrimonial disputes, criminal and commercial
disputes, etc., the police have been invoking their powers vested to them during the
pre-independence era and seeking for remand of these persons.
Likewise, the jurisdictional trial Courts have also been mechanically remanding such
persons, overlooking these cardinal principles.”

The Court observed that the detention of the accused would be justified when the
crime in question is a serious one or when the accused is a habitual offender.
However, instead of confining the use of this measure to such cases, even those
accused of petty crimes were being detained routinely. As observed in the order,

“It is common knowledge that the persons, who are alleged to have been involved for
offences under Sections 294(b) and 506(i) of IPC and other petty offences are being
produced by the Investigating Officer before the jurisdictional Magistrate for
remanding them and most of the time, such an action is taken even on the same day,
on which the complaint is received and the FIR is registered.

Likewise, matrimonial disputes, civil disputes, and other commercial disputes are
being veiled with a criminal color and indiscriminate arrests are being made.”

The Court, therefore, emphasized that it is time that the authorities remind themselves
of the above mentioned cardinal principles to restrict the cases in which jail time is
insisted on.

“In view of the aforesaid well established cardinal principles, it would be appropriate
that the Investigating Officer as well as the trial Court reappraise themselves about
these cardinal principles and cautiously refrain from remanding the persons involved.

The averments made in a complaint may not be of such a serious nature, which might
require arrest of the accused, unless and until the Investigating Officer comes to the
conclusion that such an arrest is imminent and absolutely necessary.”

Bail is rule, jail exception, observes

Madras HC
TNN | Updated: May 18, 2018,
CHENNAI: Police invoke pre-Independence era powers vested with them to
make casual arrests, said Madras high court, cautioning the subordinate
judiciary to refrain from remanding persons held for petty offences,
matrimonial and commercial disputes.
Noting that bail is the rule and jail is exception, and that persons accused of
having committed a crime are presumed to be innocent unless proved guilty,
Justice M S Ramesh said: “In view of this well established cardinal principles,
it would be appropriate that the investigating officer as well as the trial court
reappraise themselves about these cardinal principles and cautiously refrain
from remanding the persons involved in such petty offences.”

Allegations made in a complaint may not be of such a serious nature requiring

the arrest of the accused, unless and until the investigating officer came to a
conclusion that such an arrest was imminent and absolutely necessary, the
judge said in the judgment delivered at Madurai bench of the court.

Asserting that it would not be out of place to mention that trial courts have, of
late, lost sight of the two cardinal principles of criminal jurisprudence while
dealing with bail and anticipatory bail applications, Justice Ramesh said:
“Though the Supreme Court has time and again reiterated these cardinal
principles — ‘bail is the rule and jail is an exception’ as well as ‘persons
accused of having committed a crime are presumed to be innocent, unless
proved guilty’— it is heart rending to note that even in petty offences,
matrimonial disputes, criminal and commercial disputes, police have been
invoking their powers vested with them during the pre-Independence era and
seeking remand of these persons. The jurisdictional trial courts have been
mechanically remanding such persons, overlooking the cardinal principles.”

Justice Ramesh made the observations while hearing an anticipatory bail

application moved by R Ramesh of Sivagangai district apprehending arrest in
connection with a criminal case registered against him for allegedly scolding
the complainant in filthy language and attacked him and his father and
threatened them.

Bases on the complaint, Kandavarayanpatti police registered FIR under

sections 294(b) (sings, recites or utters any obscene song, ballad or words, in
or near any public place), 324 (Voluntarily causing hurt by dangerous
weapons or means) and 506(ii) (criminal intimidation) of IPC.

The petitioner contended that he had not committed any offence as alleged by
the prosecution and that he had been falsely implicated in the case. The
prosecution opposed the application saying investigation was still pending.

The court then allowed the application and ordered release of the petitioner on
bail in the event of arrest on the condition that he shall appear before the
investigating officer daily for two weeks.