By Dr Swati Jindal Garg
No matter how strong, connected or powerful a person is, all are equal before the courts of law. The former Chief Secretary of the Andaman and Nicobar Islands, Jitendra Narain, was granted conditional bail by the Port Blair Circuit Bench of the Calcutta High Court on February 20 in a rape case filed by a 21-year-old woman who had allegedly gone to him for seeking a job.
Narain has been implicated in offence(s) punishable under Sections 376(C), 376 (D), 201, 506, 120(B) IPC along with three others for which a chargesheet has already been filed. Two of the co-accused have been discharged in the chargesheet.
While allowing the bail application, the division bench held: “This case being a first case in the life of the petitioner and he being not a history-sheeter, there is no likelihood of the offence being repeated by him. The petitioner being an officer of the Union of India and he being still in service there is also no chance of his absconding. We do not find materials to satisfy us that release of the petitioner on bail shall be a liberty to the petitioner to influence the witnesses or there is any danger of justice being thwarted by such order being passed.” Earlier, Narain was extended transit bail (interim) protection by Delhi High Court and also was granted interim protection by the Principal Bench of the Calcutta High Court.
The Court, however, while granting bail has also observed that there is a prima facie case against Narain on the basis of police reports and that the offence is grave and it attracts stringent punishment if proved. Clarifying its stance, the Court also noted: “It is not the law that on finding of a prima facie case of involvement of an accused in a grave offence attracting severe punishment, the bail sought for, should be rejected and the accused should be left to be incarcerated in complete derogation of his fundamental or basic right of liberty.” The case was listed before the bench of Justices Chitta Ranjan Dash and Md. Nizamuddin and the rape survivor’s counsel was reportedly heard saying that he is moving the Supreme Court against the bail order.
Legally speaking, bail is a set of restrictions imposed on suspects to ensure they comply with a police investigation of the court process. It is the conditional release of a suspect with the promise to later appear at the police station or court. Both the court or the police could issue bail to a suspect or defendant, depending upon the nature and gravity of the offence. Bail can take different forms and depends on each individual case. One is conditional bail wherein the court might grant bail to a defendant with certain conditions attached if it is believed that there are substantial grounds to do so, such as the chance of a repeated offence. The conditions can include:
- Reporting to a police station: This condition may be imposed where there are concerns that the defendant is not going to remain at his/her address or where he/she is considered a flight risk i.e. there is a risk that the defendant will try to leave the jurisdiction without finalising the charges;
- Electronic tagging: Sureties (someone who guarantees payment of money to the court if the defendant does not attend at the next hearing);
- Residence (requires the defendant to stay at a specified address): If the address proposed is the residence of another person, such as a partner or parent, that person’s consent will generally need to be obtained.
- Curfew: A bail condition that is sometimes considered appropriate, particularly where the defendant is a juvenile and the alleged offence occurred in a public place at night. Being required to observe a curfew is seen as reducing the opportunity for further offence and is often imposed in conjunction with a condition that the police may attend the residence at random to ensure the person is complying with the curfew.
- Not consuming alcohol or drugs: Where the alleged offence is drug or alcohol related, the defendant may be required to abstain from alcohol or drugs while on bail. The defendant may be required to comply with breath or urine tests to verify compliance with this condition.
- Restrictions from entering a specified area or communicating with specified people: A condition that the defendant must not contact specified persons is common where there is a concern for the safety of the alleged victim or where the offence is alleged to have occurred in company with co-offenders. The defendant may be required not to contact the alleged victim or the alleged co-offenders while on bail. This may be to minimise the chances of a repeat offence or to minimize the chances of interfering with witnesses.
- Not attending certain places at certain times: Where the defendant is alleged to have committed the offence at a particular place, he/she may be asked, subject to a bail condition, to refrain from attending that place while on bail. For example, a particular pub or a nightclub.
- Surrender of passport: Where the defendant is considered a flight risk, he/she may be required to surrender his/her passport while on bail. This is because the defendant may have strong ties with other countries or has the financial power to escape.
Then, there are also cases where financial bail conditions are imposed. These are bail conditions that require an accused or a suitable person (often a family member) to agree to forfeit a specified amount of money if the accused person does not attend court as required. Financial bail conditions may be imposed with or without conduct conditions. In such cases, however, the court must have regard to the accused person’s means (or the means of the person putting up the bail surety) while considering whether to impose a financial bail condition at all, as well as the amount. If the person does not have sufficient means to satisfy a financial condition, the court must consider whether any other condition would achieve the same purpose.
Another peculiar case for imposing special conditions on bail is when the person applying for bail is a juvenile. In this case, the children’s court may consider it appropriate to impose more restrictive bail conditions than it would for an adult. These may include conditions such as attending school every day, obeying a curfew and not drinking alcohol.
Even though the number of bail conditions that can be imposed on an accused is not limited to a specific number, consideration should be given to ensure that the objectives of the bail are met, but not exceeded. The conditions imposed on a defendant, hence, should be necessary, reasonable and proportionate. At the same time, being proportionate to the aim of a condition should not prevent it from becoming a difficult one.
All these conditions are incredibly onerous on a person’s life. They essentially control where a person has to be and where a person cannot be at any given time. In the above conditions, for example, a person’s work life is likely to be affected by having to sign on during the middle of the working day, the family life may be affected by having to reside at a certain address or not being allowed to enter a certain place. The combination of these conditions essentially places a person under many constraints. This sort of combination is not unusual in certain cases and a higher number of conditions are more likely in more severe cases. While these conditions affect a person’s life pre-trial, if convicted, they do not account for any reduction in sentence or consideration when sentencing.
In the case of Narain, conditional bail has been given. Among the conditions imposed are that he cannot enter Andaman and Nicobar Islands unless called for, he will not use officers to influence the witness, he cannot make phone calls to any officers and the victim party, and he will deposit his passport and cannot leave India.
A Special Investigation Team that has filed a 935-page chargesheet in the case earlier this month is probing the allegations that the woman was lured to the chief secretary’s residence on the promise of a government job and then allegedly raped by multiple persons, including Narain. The Court in Narain’s case has also stated that “…the petitioner is an I.A.S officer and has already been transferred from here. Some of the witnesses having been declared to be protected as submitted by learned counsel for the State, and this being an island, if some stringent conditions are put, we are of the view that the petitioner shall not be in a position to influence any of the witnesses in these Islands.”
All said and done, it appears that the Court has taken ample precautions to ensure that both the aggrieved and the accused’s rights are considered while granting bail to the IAS officer, and it is only time that will tell if justice has been done or not.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi