Bail, no jail: Salman case puts question mark over legal process

  • Satya Prakash, Hindustan Times, New Delhi
  • Updated: May 09, 2015 14:04 IST

The Bombay High Court’s order suspending the five-year imprisonment given to the 2002 hit-and-run case convict actor Salman Khan is bound to raise many eyebrows.

It’s an irony that the trial court took 13 long years to nail the culprit and the High Court freed the convicted actor within hours .

"Not only must Justice be done; it must also be seen to be done." The HC’s order saving Khan from incarceration appears to go against this age-old principle followed by courts.

While admitting the actor’s appeal, Justice Abhay Thipsay said it would be proper to suspend the sentence during the pendency of the convict’s appeal as it raised “arguable points needing consideration”.

Read: Salman Khan is home: Gets bail, suspended sentence in hit-and-run case

While the HC may be right in concluding that Khan’s appeal did raise such questions, it would be difficult to find one that doesn’t.

Suspension of sentence is not that common in India. Even high profile politicians such as RJD chief Lalu Prasad or AIADMK supremo J Jayalalithaa had to cool their heels behind bars before being granted bail in the fodder scam and the disproportionate assets cases respectively. Convicted of corruption in teachers recruitment scam, even 80-year-old INLD leader Om Prakash Chautala didn’t get fast-track bail during hearing of his appeal by the Delhi High Court.

According the National Crime Records Bureau (NCRB), over 2.78 lakh undertrials, many of them charged with not so serious crimes, continue to languish in various jails across India. Maharasthra alone has about 20,000 undertrial prisoners.

While lakhs of undertrials - who can be legitimately presumed innocent till proven guilty – are kept like sardines in overcrowded barracks, a man convicted of culpable homicide not amounting to murder for running over poor people sleeping on a pavement roams free.

The trial court found that Khan did not have a driving licence; was drunk; and was on the wheel on the fateful night. This was sufficient to conclude that he had knowledge that his act could put innocent lives at risk.

"Once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both," the Supreme Court said converting the 1999 BMW hit-and-run case convict Sanjeev Nanda’s from rash and negligent act (Section 304A IPC) to culpabale homicide not amounting to murder (Section 304 Part-II).

Going by Khan’s conduct of running away from the accident site and attempting to shift the blame on to his driver Ashok Singh, he should have been given harsher punishment.

Those comparing Khan’s case with that of Alistair Pereira are not factoring in that State never sought enhancement of three-year sentence given to the convict. Had they done so, Pereira would have got a longer jail term.

"For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred from the State, we refrain from considering the matter of enhancement (of sentence)," the SC had said in Pereira’s case that had claimed seven lives.

Courts decide cases on the basis of evidence and evidence alone. They don’t go by public perception and they must not do so. What they must take into account is the fact that the rule of law also implies equal treatment before law lest public confidence in the judiciary is undermined.


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