If you are Salman Khan, getting instant bail after conviction is your...

If you are Salman Khan, getting instant bail after conviction is your right


In a criminal case, the trial court pronounces the sentence to the accused at 1.15 pm, after holding him guilty of the offence of culpable homicide. It is claimed that the judgment is still not handed over to the accused. But, an appeal is immediately prepared and filed in the high court without having a copy of the judgment. A bail application is also prepared and filed. The appeal is immediately given the regular Criminal Appeal number by the high court registry. Similarly, bail application is also numbered immediately. No defects are notified in the appeal and/or the bail application by the registry (apparently so, since otherwise regular number would not be given). The matter is mentioned in the high court. The high court agrees to hear the appeal and/or bail application at 4 pm. And, at 4 pm, the high court hears the application and grants interim bail to the accused without full hearing on the ground that there is no time for hearing since the high court time was getting over and that the accused was throughout on bail during trial. Notwithstanding the fact that during trial, he was merely an accused (presumed to be innocent until proved guilty) and now he is a convicted person (having already been proved guilty and handed down sentence of 5 years in jail), due to which considerations of grant of bail are entirely different. Copy of the bail order is prepared and signed immediately and sent to the trial Court. Within an hour or so, the accused is out on bail. And, before you think that the above story is a figment of imagination, let me reassure that this is a real incident and that too happening in India and not in Singapore or some other country which are well-known for fast justice delivery system. I bow down to the Indian judiciary for such fast delivery of justice. Alas! Our judiciary does not always give such an opportunity to bow down, it is only when the accused is a person called Salman Khan (or the like) and/or if he represented by an advocate called Harish Salve (or someone of his class). Welcome to the ground reality of Indian justice system.

Salman Khan

Moreover, even for a Salman Khan, such faster justice delivery becomes available only after he is convicted so that he is not made to sleep in a dirty Indian jail even for a single night. During trial, when Salman Khan was supposed to be innocent, our justice system will not show the same urgency and the trial may get delayed as much as is possible (in this case, the trial took 13 years). One noticed a similar approach in Ms. J. Jayalalithaa case. Trial took 19 years allowing her to occupy the chair of chief minister of Tamil Nadu for a long duration during that period. And, when she got convicted and was dethroned, suddenly the wheels of justice started moving very fast – from the Supreme Court to the High Court – and the decision in her appeal is likely to be delivered on 12 May 2015 (i.e., next week), i.e., in less than a year. Salman Khan and Ms. Jayalalithaa are not alone, but the members of this exclusive club are not too many when considered in the light of 125 crore population of the country.

Ironically, it is the judiciary itself that makes us believe that the justice system in India has two different standards. Well, let me again come back to Salman Khan issue.

Can you file a criminal appeal in a case without having a copy of the judgment of the trial court? Will it be heard without that? Can you prepare and file such appeal in about one hour of the trial court judgment, and that too in the case of a celebrity where the stakes are very high and where the appeal should be prepared with sufficient caution and with full details and by best legal brains? In an ordinary case, if you file the appeal in the high court, you may not even get the diary number (called lodging number in Bombay high court) in such a short time, but here you are getting even the regular Criminal Appeal number and the regular Bail Application number in an hour or so, which normally may take at least a couple of days if there are no defects in the filing. It is done here in an hour even though there might have been several defects in filing (the biggest defect being that even the order challenged is itself not available). Then, can you mention a matter and get the listing done and get the matter heard, all within a period of a couple of hours from the time of pronouncement of order by the trial court? Can you say that getting bail is an urgent matter? May be, but then there are thousands of other persons getting convicted every day and the same urgency is not noticed in those cases by our system.

Well, let me now turn to the legal provisions. Bail during investigation and trial is governed by Sections 436 to 439 of Cr.P.C. when the person who has allegedly committed the offence is called an “accused”, who is presumed to be innocent until proved guilty. But, after conviction, guilt is already proved and the “accused” now becomes a “convicted person”. Bail provision after conviction is contained in Section 389 of Cr.P.C., sub-section (1) of which is reproduced below:

“(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond: …” (Emphasis supplied)

This provision makes it clear that specific reasons have to be recorded in writing for granting bail after conviction. And, these reasons have to relate to the merits of the case and not some perfunctory reasons.

It may be mentioned that in the case of Kishori Lal v. Rupa, (2004) 7 SCC 638 at p. 639 [also see: Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 at p. 283 : 2005 Cri LJ 2531], the Supreme Court held that Section 389 of the Criminal Procedure Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

Likewise, in the case of State of Haryana v. Hasmat, (2004) 6 SCC 175 at p. 177 : AIR 2004 SC 3936 : 2004 Cri LJ 3840, the Supreme Court held that the appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail.

In the case of Salman Khan, the interim bail has been granted to him by an order of the Bombay High Court (see the order, here), mainly, only on two reasons which are contained in para 4 of the order reproduced below:

“4. Since the applicant/appellant was on bail throughout the trial, and since a copy of the impugned judgment of conviction has not yet been furnished to him, it would be proper to protect the appellant for some time in the interest of justice.”

So, the first reason is that Salman Khan was on bail throughout the trial. However, this reason is not valid. During trial (when he was presumed to be innocent), the considerations for grant of bail are different from those during appeal against conviction when his guilt has been proved. The second reason is that copy of the judgment has not been furnished to him. This cannot be a ground for release on bail during appeal. His appeal and bail application were filed within an hour of the judgment of the trial court; naturally, it will take at least some time for giving him a copy of the judgment.

No reasons are given on the basis of the merits of the case while granting him bail, which could have justified the grant of bail with so much of urgency.

Let me clarify that I am personally in favour of bail being granted liberally wherever possible. Therefore, I may not object to the bail being granted to Salman Khan if it was granted after hearing merits of the case which would have shown that the order granting bail was passed in an ordinary and impartial manner. In fact, I may not object even to the above order of granting bail to Salman Khan in a summary way without giving any valid reasons, provided lakhs of other “convicted persons” are also granted bail in a similar manner within 2 hours of the judgment of conviction by the trial court, showing the same urgency. Alas! All those lakhs of “convicted persons” are not “Salman Khan”; moreover, the advocates representing them are not “Harish Salve”. And, this is precisely my objection, i.e., at two different standards being used by our system. I feel that it may perhaps be better to amend sub-section (1) of Section 389 Cr.P.C. by adding a Proviso (with emphasis) as shown below:

“(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:

Provided that if the convicted person happens to be Salman Khan or a person of a similar celebrity status and/or if the advocate representing such convicted person happens to Harish Salve or an advocate having a similar face value, such convicted person shall be released on bail or on his own bond forthwith without recording any reasons.

When will Article 14 of the Constitution guaranteeing a fundamental right to equality will translate into reality? And, can the judiciary blame any one else if people start losing faith in its actions in cases involving high and mighty?

[Note: Dr. Ashok Dhamija is the author of, inter alia, a 1600+ page book “Law of Bail, Bonds, Arrest and Custody”, published by LexisNexis Buterworths Wadhwa.]

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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