Although it says that bail is a rule and jail is an exception, the Special Court’s judgment against police officers accused in Darfur case show the opposite<br>KESHAB POUDEL

July 24, 2011, 5:45 p.m. Published in Magazine Issue: Vol.: 05 No.-3 July 22-2011 (Shrawan 06,2068)<BR>

Former Inspector General of Police (IGP) Hem Bahadur Gurung spent a few days in jail as he failed to furnish the bank guarantee demanded by the Special Court (SC) for his bail. The SC set his bail amount at Rs 500 million for his connection with the multi-million rupee Darfur scam. Court asked whopping amount of Rs.700 million from former police chief Ramesh Chand Thakuri who spent one night in judicial custody failing to bail the amount.

Similarly, the Special Court demanded Rs. 10 million from former Additional Inspector General of Police (AIGP) Deependra Bahadur Bista, who spent a night in jail when he failed to deposit the money. DSP Dinesh KC spent a night in jail when he failed to deposit the bail amount of Rs 3.5 million. SSP Shyam Bahadur Thapa too was released after a day in jail.Under the verdict of a full bench of judges Gauri Bahadur Karki, Om Prakash Mishra and Kedar Chalise in the cases filed by the Commission for the Investigation of Abuse of Authority (CIAA), many more police officers will have to go to jail. The CIAA had charge sheeted 34 police officials — 24 incumbent and 10 ex-policemen — and two supplier companies on the corruption charges on June 8.

If one looks at the verdicts of the Special Court, it appears to be setting precedents that bail is jail in Nepal. Demanding a huge amount of money ranging from Rs. 2 million to Rs. 700 million from the accused former police officers, who spent their entire career to restore the law and order and to maintain pace in the country, the Special Court did not look at their contribution and their past position. Nepal’s constitution also guarantees certain rights. According to article 24(5) of the Interim Constitution of Nepal 2007, no person accused of any offence shall be assumed to be an offender until proven guilty. However, the special court presumed as if all the accused were proven guilty.

However, SC seems to have its own jurisprudence which is even against the spirit of the interim constitution. “Nobody cares about the guarantees given by the constitution. The sanctity of bail has always been ruthlessly used in the Nepalese court,” said a constitutional lawyer. “We have a bail system because of two reasons. Our laws are based on old English Common Law which allowed bail. Secondly, a person is innocent until proven guilty.”

What is the bail system?

The bail system is a way to insure that the defendant will show up for a court hearing. Since the person has only been arrested and he/she is not guilty of committing a crime, so he/she can only be kept in jail as a way of assuring their appearance at any future hearing. They can, in effect, buy their freedom again by posting what is known as bail. Generally they can put up actually money, or, in some cases they can put up real property, e.g., a house or piece of ground.

Although the court needs to consider certain basis to decide the bail such as the ability of the accused to give bail, nature of offense, penalty for the offense charged, character and reputation of the accused, health of the accused, character and strength of the evidence, probability of the accused appearing at trial, forfeiture of other bonds, and whether the accused was a fugitive from justice when arrested.

Conditions for Bail

In determining the amount of bail, voluntary surrender may be considered as an indication that the defendant has no intention of absconding from justice. It is also proper, in setting a higher bail figure, to take into consideration the fact that at the time of arrest the accused was a fugitive from justice, or the fact that the defendant has previously absconded while under indictment.A court should give some regard to the prisoner's pecuniary circumstances, since what is reasonable bail to a man of wealth may be equivalent to a denial of the right to bail if exacted of a poor man charged with a like offense.

An accused cannot be denied release from detention because of indigence, but is constitutionally entitled to be released on his personal recognizance where other relevant factors make it reasonable to believe that he will comply with the orders of the court. In a country where the government withdraws cases against more than10,000 criminals and persons accused in murder cases and they even hold positions of minister and CA member, police officers are forced to spend time in jail without being proven guilty.

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