In socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of absconding not within country but beyond country is more probable.
By Chongtham Victor
The court needs sound reasoning while using the parameters for granting of bail/anticipatory bail in serious socio-economic offences. In short, bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been implicated in the crime and would not misuse his liberty.
Economic Offences: Power under Section- 438 Code of Criminal Procedure being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences as the same stands in a different class as they affect the economic fabric of the society. Generally, in economic offences, the accused is not entitled to anticipatory bail.
It had been argued that in early times, crimes were committed by “un-socialised or mal-socialised or improperly socialised persons”. Criminologists of the past had been of the opinion that they belonged to lower economic classes and most of the known crimes were committed in an unorganised manner without proper planning or completely in an un-planned manner. These criminals used crude modus operandi leaving clues on crime scene. To prove that they committed the crimes, the courts used traditional evidences like eye witnesses. Crimes were committed to satisfy needs and necessity or enmity or jealousy or lust. To deal such crimes simple and general measures of criminal justice was efficient. Simple investigating agency and its investigation procedure; traditional prosecution and prosecution measures were effective, traditional sentencing and its infliction was sufficient to tackle problem of traditional criminality.
However, crimes are now committed by influential persons belonging to upper classes in an organised manner after well planning by use of modern gadgets in course of performance of their official, professional, business activities in which they have expertise. Criminal acts committed by professionals, businessmen and public servants, it is very difficult to identify whether sober and civilised activity was committed or criminal act was committed. Such criminals have no criminal self-image. Further by societal members there is no labelling which affect seriously pursuits to cope with crime and criminality.
Economic offenders are only concerned with their personal gain even at the cost of irreparable and serious loss to society which provided socialization and made him a human being, provided status and position, provided respect and reputation, provided stature and means. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national/ interest. To gain more and more profit, to become rich quick such criminal even has no problem to cause problem for the whole society, affect safety and security of life of societal members, misappropriation of public exchequer and ultimately affect completely wellbeing of society at large.
In the way to accumulate money and to get physical commodities, life, property and well-being of common persons have no value. Criminal acts committed by such persons are creating a serious challenge before criminal justice system; It is difficult to identify whether crime was committed, when it is identified that crime was committed, it is difficult to find out clues and thereby evidences; when evidences are available, nature of evidences is completely different as not possible to be collected by simple investigating, presented by prosecution agency and ultimately to convict and sentence; when sentenced, simple sentence is not effective to deal with such modern criminals and their criminality. A criminal of such modern criminality are respected and influential persons with position, status, standing and means thereby they are always in situation to influence proceeding in investigation and prosecution, tamper with the evidences and pressurize witnesses.
Socio-economic criminals are economically sound and belong to elite class. Furthermore, they commit crime to get more and more money. They are in possession of large amount of proceed of crime. When a person has money earned by honesty and labour, they think again in spending the money but when money is obtained by corrupt means, such person may not have any problem spending. A criminal of economic offences has larger amount of proceed of crime, he may use it and affect the investigation and win over witnesses.
In one of the case from the state of Gujarat of the year 2006 SC, the accused was one of the Directors of a Bank and together with other Directors and Managing Director of Bank siphoned off crores and crores rupees fund of the Bank by bogus loans and fictitious letters of credit in the name of their friends, relatives, associates and name-lender companies either without any securities or with wholly inadequate security. The Court of Sessions and the High Court rejected bail and then the accused moved the Hon’ble Supreme Court. The accused was remaining in custody for longer period since his surrender. The Hon’ble Supreme Court decided that having regard to huge amounts involved in the systematic fraud, there is danger of the accused person absconding, if released on bail, or attempting to tamper with the evidences by pressurizing witnesses. The Hon’ble Supreme Court of India refused to grant bail.
In socio-economic offences, the court always considers monetary position of the accused and amount involved in criminal case. Moreover, the accused is economically sound and more the amount involved in criminal case; it cause more the chance of affecting the requirements of criminal justice, more the accused is unfit for bail, thereby, more the chance of refusal to grant bail.
In socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of absconding not within country but beyond country is more probable. Usually socio-economic offenders abscond to some other country and after that it becomes difficult to bring them back and complete the criminal proceeding against them. Further, their monetary sound condition particularly proceed of crime obtained not by honest working but by deceiving others causes more prone situation for influencing witnesses and other evidences. Furthermore, status and position of offender provides opportunity to influence investigation and prosecution. On the stated premises the bail or anticipatory bail is generally rejected by the court in case of the offences involving the socio-economic offences.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
(Chongtham Victor is an advocate based in Imphal)