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How can two strong bail candidates have cases which are so diametrically opposed On Monday evening, the Court cause list for the following day didn't show the Subrata Roy Sahara case. It sent shockwaves because the Court itself had decided that March 11 would be the next designated date for the hearing. The bottom line was that Subrata Roy was to stay in Jail Number 3 of Tihar indefinitely. On India's western coast a similar story, only much longer, has been playing out. Journalist Tarun Tejpal remains incarcerated for close to three months now. His bail pleas rejected, Tejpal is currently lodged at the Sada sub-jail in the port town of Vasco, 35 km from Panjim, as prisoner number 624. On March 4, senior criminal lawyer Ram Jethmalani strongly protested as a bench of Justice K S Radhakrishnan and J S Kehar ordered that Sahara Chief Subrata Roy be taken back to custody and sent to Tihar Jail saying, "This is sheer injustice your lordships. My client is being sent to prison in a contempt case even without hearing arguments on the point of sentencing which is a right of every citizen and prescribed by the rule book. "He was only arrested by the police to ensure his presence in the court and that has been done. Now he is entitled to be freed". The judges did not react. They simply got up and walked away showing complete disgust. My mind switched on rewind to mid November, 2011, when in an extremely significant move, the Supreme Court agreed to examine whether bail can be denied on grounds of gravity of offence. The counsels complained that courts in recent times have been routinely rejecting bail in violation of the Fundamental Right of Life and Personal Liberty guaranteed under Article 21 of the Constitution. The apex court decided to examine whether trial courts or High Courts could deny bail in high profile cases simply on the ground of "gravity of offence," contrary to the earlier maxim "bail is the rule, jail is an exception." At the core of this debate remains the same underlying credo - bail is the norm and jail an exception. But as we saw in the 2G spectrum case, all the accused were sent to jail. It shook the foundations of civil society in the country for these accused were in jail pending trial. The mood of indignation and anger that had enveloped the country at that particular juncture, owing to a catalogue of high profile corruption cases, ensured that the accused were packed off to jail cells. Senior counsels Ranjit Kumar and Mukul Rohatgi arguing on behalf of Ashok Kumar Sinha, a known associate of ex-Jharkhand CM Madhu Koda, charged for offences to the tune of Rs 1,200 crore under PMLA and IPC, convinced the bench of Justices Altamas Kabir, S S Nijjar and Jasti Chelameswar that the law needed to be more lenient. Kumar averred his client had been in jail for two years and his right to liberty had been denied. Citing high profile cases which according to him were - "media-driven and judges are afraid of their confidential reports needed for promotion," Kumar wanted a liberal view to be taken. "All principles hitherto followed in grant of bail in cases involving up to five or seven years' imprisonment are not being followed by the trial judges. A serious situation has arisen as a result of denial of bail to the accused, who also have fundamental rights." He went on to say, "Whether it is a serious crime, whether it is the Money Laundering Act or any other law, the principles to be followed in grant of bail are one and the same as per the Criminal Procedure Code." Both Kumar and Rohatgi said that the rights of the accused were being trampled upon. Rohatgi using the template of Section 437 CRPC 1973 stated that trial courts driven by media frenzy were not following the ruling accurately. Section 437 CRPC allows bail following basic provisions where an accused is entitled to be released on bail if the maximum punishment is up to seven years. Immediately thereafter the floodgates opened and bail was granted to all the 2G accused in tranches. Since then the Supreme Court has shown a lenient way of dealing with this complicated subject of bail. In Subrata Roy's case, it is the court's majesty which was trifled with. Given a specific date to appear before it, Roy chose to ignore the call citing his mother's illness while in Tejpal's case, though the chargesheet is in place, bail seems to be far distant on the horizon. The two cases are diametrically opposite and have nothing in common, though both are strong bail candidates. Last month in a dramatic order, the same SC granted permanent bail nearly two-and-a-half years after the controversial arrest of tribal school teacher Soni Sori, accused of acting as a conduit between a steel giant and the Maoists. Sori, 36, was allowed to visit her home in Dantewada, Chhattisgarh. This was a major relief to the politician who was behind bars for two months after being awarded a fiveyear jail term. A bench headed by Chief Justice P. Sathasivam granted bail after noting that several other similarly placed convicts have already been granted bail in the case.

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