It is said that a man of courage never needs weapons, but he may need bail! No matter how strong, connected or powerful a man may think he is, all are equal before the courts of law and may at one point of time in their lives need to be bailed out. In a recent development, the former Chief Secretary of 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 the 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 chargesheet has has already been filed and two of the co-accused persons 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 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 papers and that the offence is grave and it attracts stringent punishment, if proved, and the same to be decided in the trial. Clarifying its stance though, the court also noted that-
“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 said case was listed before the bench of Justices Chittaranjan Dash and Justice 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 a suspect 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 against a suspect or defendant depending upon the nature and gravity of the offence . It can take different forms and depends on each individual case. One of the types of Bail Is Conditional bail wherein the court might grant bail to a defendant with certain conditions attached if it’s believed there are substantial grounds to do so, such as the chance of reoffending. These conditions are implemented to ensure that the defendant does or doesn’t do something as ordered by the court whilst on bail.
The said 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 their address or where they are considered a flight risk i.e. there is a risk they 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) – It is very common for a person’s bail conditions to specify the address they must live at. 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 curfew is a bail condition that is sometimes considered appropriate, particularly where the defendant is a juvenile and the alleged offending occurred in a public place at night. Being required to observe a curfew is seen as reducing the opportunity for further offending 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 offending is drug or alcohol related, the defendant may be required to abstain from alcohol or drugs while on bail. They may be required to comply with breath or urine tests to verify their compliance with this condition.
Restrictions from entering a specified area or communicating with specified people- A bail condition that the defendant is not to contact specified persons is common where there is a concern for the safety of the alleged victim or where the offending 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 re-offending or to minimize the chances of interfering with witnesses.
Not attending certain places at certain times- Where the defendant is alleged to have committed offences in a particular place, they may be made subject to a bail condition that they refrain from attending this place while on bail – for example, a particular pub or nightclub.
Surrender of passport- Where the defendant is considered a flight risk, they may be required to surrender their passport while on bail. This may be because they have strong ties to other countries, because they are a person who travels often or because they have significant financial means.
Then there are also cases where financial bail conditions are imposed. Financial conditions 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 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) whilst considering whether to impose a financial 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, 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 yet consideration should be given to ensure that the objectives of 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 does not prevent it from becoming a difficult one. All the above mentioned conditions for example 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, their 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.
Whilst 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 Jitender Narain, conditional bail has been given. Among the conditions imposed are he cannot enter Andaman and Nicobar Island unless called for, he will not use officers to influence the witness, he cannot make phone calls to any officers and the victim party, he will deposit his passport and cannot leave India. A Special Investigation Team (SIT) that has filed a 935 page charge-sheet 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 Mr. 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 a Islands, 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 of India, Delhi High Court and all District Courts and Tribunals in Delhi. She has done her Doctorate in Criminal Law and is the Legal Member in the Internal Complaints Committee of various private as well as Government Organizations. Email: [email protected])
