An AAP member speaks: Why Arvind Kejriwal is in jail

By Ajit Joy Arvind Kejriwal is in jail for the sixth day now because of a principled stand taken by him. Kejriwal told the court that – he has done nothing wrong and therefore will not be taking bail. For this, the court sent him to prison which is a punishment – a punishment meted out without being proven guilty. This is the plight not just of Kejriwal, but of lakhs of poor Indians who are unable to negotiate the complexities of the Indian judicial system that asks for financial bond, sureties, lawyers and all. This is why we have close to 2.5 lakh undertrials languishing in overflowing jails all over the country and a good number of them are due to inability to secure bail. The brief facts of the case on which Arvind Kejrival was sent to jail are this. On 31 January 2014, Kejriwal released a list of most corrupt politicians in the country and this list included the name of Nitin Gadkari of BJP. Aggrieved by this, a criminal defamation case was filed by Gadkari in Delhi against Kejriwal. The present case was filed by Gadkari as a private complaint in court for defamation which is an offence under Section 500 of the Indian Penal Code. Defamation incidentally is a case, which is bailable and non-cognisable. This means that it is one of those minor offences with a maximum punishment of 2 years in which the police cannot register an FIR since it is too petty a case and it is bailable unlike a serious offence like rape or murder which is cognizable and non-bailable. In other words defamation is a simple, light, criminal infraction. Thus bail should be given as a matter of routine and from the police station itself even if a case is registered with permission of the court. [caption id=“attachment_1532407” align=“alignleft” width=“380”] Arvind Kejriwal in this file photo. PTI [/caption] Bail ordinarily means securing release from custody by payment of some security. This security could be in the form of a bond (personal, financial or with sureties) which means a binding promise or an obligation. The intention here is that the person securing bail should be available in court for future judicial processes including trial. The jurisprudence of bail even after so many years of decision making is not conclusive. Almost on a daily basis the court seems to be expanding and simplifying the scope of bail provisions as - refusal of bail is considered to be a human rights violation and also a negation of Article 21 of the Constitution which guarantees the fundamental right to life and personal liberty. Further, bail is refused when it is felt that the accused will abscond or is likely to tamper with evidence or intimidate the witnesses. However, the principle of bail from antiquity to the modern times remains the same – which is to secure the attendance of the accused for trial. Another well-established principle is that bail should never be withheld so as to inflict a punishment of imprisonment. On 23 May, Arvind Kejriwal appeared in court. Normally in criminal matters when the accused appears in court, the magistrate should in the usual course and especially in bailable cases enhance the accused on bail. In this case, the magistrate asked Arvind to furnish a bond of Rs 10,000 with an additional condition of having a surety for a similar amount as condition in order to secure bail. Though the magistrate is legally correct to do so, this could be termed as a ‘tough’ condition and unwanted in a case like this wherein there is no chance of Kejriwal absconding or tampering with witnesses. Kejriwal refused this offer saying he has not done any wrong and therefore there is no need for him to seek bail. The Magistrate then gave the option to Kejriwal of executing a personal bond of appearance. Arvind refused this too for the same reason and offered a ‘personal commitment’ for appearance at the trial. However, the court did not accept this and remanded him to prison. If the intention of enhancing a person on bail and taking a bond from him is to secure his attendance at trial, then the contention of Kejriwal that his personal commitment should have been sufficient is valid. Surprisingly, the judge failed to appreciate that - she was dealing with a simple bailable offence - one of a political nature. Once a prominent person, well known throughout the country and a former Chief Minister has given an undertaking – that should be taken as sufficient for bail purposes. Just like the judge has a discretion in deciding the bail conditions, the bond amount, sureties etc the court also has the discretion to accept a commitment in lieu of a bail bond. Section 59 of the Criminal Procedure Code supports this. The provision says, “No person who has been arrested by a police officer shall be discharged except on his own bond or on bail, or under the special order of a Magistrate.” Therefore, if the police arrests a person, for release, a bail or a bond is compulsory. However, if the person is produced in court, then the person can be released on the order of the magistrate and there is no mention here that a bail or bond is necessary. The law is wide enough to release an accused on personal commitment. When Kejriwal or any other person accused of a minor case refuses to execute a bond or secure bail, then it can be argued that the court should release the person forthwith with whatever assurance it can secure. In case, the accused later fails to appear, the court can then proceed against him criminally. Putting the person concerned in jail simply for lack of a bond is going overboard. So how is Kejriwal’s case different from that of the recent case of Yogendra Yadav and others who had executed a bail bond of Rs 5000 for their release? Yadav and some other AAP members were arrested for the charge of rioting, protesting against the jailing of Kejriwal and then produced before a magistrate under custody. Therefore, in this case in order to be released from this custody, bail needed to be taken. In the Kejriwal case, the position is different as there is no arrest. Kejriwal appeared in court on summons and hence is not in custody while in court. It would be useful to read what Section 88 of the Criminal Procedure Code that governs this case which states: “When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court…” The word ‘may’ in the section is crucial. Taking bond is not a requirement. If that was so as claimed by the magistrate, then the word ‘shall’ would have been used instead of ‘may’. Hence it is only optional to take a bond. It is high time we think of reform in our criminal procedure especially areas covering bails and bonds. We need to be liberal in cases of bail in the true sense. The trust issue that the British had with regard to Indians was incorporated in the penal laws of the country. Regressive bail provisions in our law flows from this. This needs to go away. Courts and the criminal justice system should not turn into instruments of harassing the people. This is the larger message the Arvind wants to give out through his personal sacrifice. The writer is an advocate in Kerala High Court and was the AAP candidate from Thiruvananthapuram for the 2104 Lok Sbaha Elections