What is the point of bail after conviction that too in a wildlife crime?
What is the point
of bail after conviction that too in a wildlife crime?
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| The black buck is listed as Schedule 1 species in India's Wildlife Protection Act 1972 - highlighting its critical conservation status © Pixabay |
By
Malini Shankar,
Digital Discourse Foundation
April 22nd 2018
22nd April every year
is being marked as World Earth Day for the past two decades or so. Some would
argue that it is another day for cynical lip service to causes like the
Environment. The ground reality hardly ever changes despite the unparalleled reach
and impact of electronic media that wires the entire world today.
Indian actor Salman Khan was
convicted on 4th April 2018 for hunting and killing two black bucks
back in 1998. But he secured bail barely 48 hours after conviction on 6th
April 2018.
Conservationists fear that it
sets a very bad precedent as it is a manifestation of the lack of political
will for execution of the stringent provisions of the Wildlife Protection Act
1972. Besides, it brazenly defeats the purpose of punishing those guilty of
wildlife crimes like hunting, poaching and smuggling wildlife derivatives.
When Media Moguls like film
actors set the wrong precedent by getting away with convictions in wildlife
crime what does the society infer? Media leaders have to set examples of
respect for law and lives of vulnerable sections of society instead of buying
their way out of punishment.
That the judge of the sessions
court who convicted Salman was among the 87 judges who were transferred that
very day spoke volumes for lack of political will in a government which is run
by Far Right political party whose primary constituency includes tradesmen and
women.
There are many stringent laws in
India like MCOCA - among others - with no bail provisions; but to invoke these,
the political class has to display political will to realise the import of the
law in letter and spirit.
In an email interview to Digital
Discourse Foundation DCP Crime in the Crime Branch in Delhi Dr. Joy Tirkey who
was instrumental in the arrest of wildlife trader Sansar Chand said “Non
Bailable Warrants and Bail after conviction are two separate issues”.
Non Bailable Warrants are issued
by the Courts to compel the presence of a person in Court. It does not mean
that the person arrested under a non bailable warrant is not entitled to bail.
It simply means that the person so arrested would be enlarged on bail only by
the Court and not by the police who arrest such person.
Whereas, bail after conviction by
Court may be given in the following circumstances.
1. If the accused was already on bail during
trial and has filed an appeal against conviction before a higher court.
2. If the convicted person has not absconded
during trial.
3. If the case is not of a heinous nature
and the maximum sentence imposed is of 5 years or less and the appeal process
is likely to be pending for a long time.
Now the requirements for
invoking MCOCA:
(i) Continuing unlawful activity -
It means an activity prohibited by law for the time being in force, which is a
cognizable offence punishable with imprisonment of three years or more,
undertaken either singly or jointly, as a member of an organised crime
syndicate or on behalf of such, syndicate in respect of which more than one
charge-sheets have been filed before a competent Court within the preceding
period of ten years and that Court has taken cognizance of such offence;
(ii) Organised crime means any
continuing unlawful activity by an individual, singly or jointly, either as a
member of an organised crime syndicate or on behalf of such syndicate, by use
of violence or threat of violence or intimidation or coercion, or other
unlawful means, with the objective of gaining pecuniary benefits, or gaining
undue economic or other advantage for himself or any person or promoting
insurgency;
(iii) Organised crime syndicate means a
group of two or more persons who, acting either singly or collectively, as a
syndicate of gang indulge in activities of organised crime.
So essentially we have to see 3
things before invoking MCOCA.
1. Whether the accused has 2 or more charge
sheets filed against him in the court in the last 10 years. Beyond last 10
years is not considered.
2. Whether the cases under which these 2
charge sheets were filed were of offences that are punishable with imprisonment
of 3 years or more.
3. Whether the competent Court has actually
taken cognizance of these 2 charge sheets filed before it.
So in cases registered under
the Wildlife Protection Act 1972, we can invoke MCOCA only if the following
conditions are fulfilled.
1. Two charge sheets have been filed in
Court against the accused in the last 10 years. Anything beyond the time limit
of 10 years is not considered.
2. The punishment of offence committed under
the sections invoked of the Wildlife Protection Act 1972 must be of 3 years or
more.
3. The competent Court must have taken
cognizance of the charge sheets that were filed before it.
“The case involving Sansar Chand
(notorious wildlife smuggler who was responsible for decimating scores of India’s
Royal Bengal Tigers) was a real challenge before us as there was no direct
evidence against him. We invoked the provisions of of Section 30 of the Indian
Evidence Actto use the extra judicial confession of the courier ( from whose
possession the panther skin was seized) . We got a special prosecutor appointed
for the case. Each and every detail revealed in the courier’s confession was
probed into and corroborative
circumstantial evidence was collected and presented before the court.
Necessary forensic evidence was obtained through expert examination , of the
seized skin, at Wildlife Institute Dehradun. The synergy of focussed
investigation, compliance of legal procedures, piecing the circumstantial
evidence backed up by services of special prosecutor nailed the case against
Sansar Chand. The judgement pronounced by the trial court was so speaking ,
detailed and legally sound that it withstood the legal scrutiny right upto
Supreme Court which upheld the conviction of Sansar Chand” says Hemanth
Priyadarshi, IPS who successfully booked a case against Sansar Chand and got
him sentenced. Sansar Chand was serving a prison term when he died of cancer in
2014.
Media must not conduct a parallel
trial, in the interest of fair play and justice, true. But wildlife lack human /
constitutional rights and voting rights. Who then will argue in case of
voiceless vote-less wildlife?
Consider the appalling media
reactions to Salman Khan’s conviction in early April 2018. Electronic and
Online Media went to town citing the amount of money riding (meaning invested)
on the actor pending productions. It was a ad day for the Indian Media which
spared no thought for the life of a precious endangered wild animal, although
it paid the ultimate price for the blood lust of a black moneyed spoilt brat.
It was the most opportune moment to teach a lesson to wildlife criminals and to
send a strong signal to anyone who harboured thoughts of hunting and poaching. I
don’t recall many media reports which could quantify the loss of two endangered
Schedule One listed species to blood sport of the rich and famous.
3. http://www.thehindu.com/news/national/other-states/black-buck-poaching-case-live-updates/article23440232.ece
http://indianexpress.com/article/entertainment/bollywood/blackbuck-poaching-case-bollywood-reactions-live-updates-5123996/
NDTV’s Rajasthan bureau Chief
Harsha Kumari Singh made it a point to stress that black bucks are Schedule one
species as they are the prey base of carnivores like tigers, leopards and lions
which are pyramid species indicative of the health of the ecosystem.
Trade publications can justify
quantifying the loss to film producers but certainly not mainstream national
media. When mainstream media succumbs to starry eyed sympathy for the bully of
Bollywood it bespeaks misplaced perspectives of national interest.
Speaking to Digital Discourse
Foundation Bhargav says “More worrisome than the granting of bail is the
abhorrent reaction of some famous Bollywood stars and public personalities not
to mention his fans openly celebrating his release on bail. Where is our
society headed?”
“This is not the first time that
Bollywood has closed ranks to back a convicted actor. And this certainly will
not be the last either. It is time for them to introspect on their – “we are
above the law”- attitude” says Praveen Bhargav Wildlife First, Former Member –
National Board for Wildlife speaking to Digital Discourse Foundation.
There are precedents in Bollywood
itself.
·
Mansur Ali Khan Pataudi a former cricketer
married to a Bollywood lead actress of yester years – Sharmilla Tagore and
father of Bollywood actors Saif Ali Khan Pataudi and Soha Ali Khan Pataudi, was
caught with cadavours of deer back in June 2005. Pataudi was convicted
posthumously in 2015 four years after his demise.
·
Sanjay Dutt earned notoriety not only for
hunting a deer but for illegally entering a forest guest house in Dandeli Tiger
Reserve in 1991 to cook the deer that he killed in blood sport one night in
Dandeli. It was only two years later that he was caught for smuggling arms when
the Mumbai Riots were being investigated.
·
Salman Khan himself was booked for drunken
driving which killed a pavement dweller. Actor Salman Khan was indeed convicted
in in 2016 in the hit and run case but his sentence was suspended.
Wildlife crime has to be made non
bailable because the blood sport has already taken a toll on India’s endangered
wildlife. What is the point of bail if convictions are suspended many prosecutors
have asked in Independent India.
Bail provisions are only an
eyewash to a fair trial. In the case of wildlife crime the very purpose of
conservation is defeated if wildlife crime is not punished. “This only shows
how a person with strong PR machinery can influence certain sections of the
media to project what s(he) wants. I was surprised that not one news story
countered this specious ‘money riding on him’ charade by highlighting the
plight of thousands of families whose only bread winner - a ordinary daily
wager - gets convicted or incarcerated as an under-trial with no legal
assistance even to bail?” questions a sceptical Praveen Bhargav.
Salman Khan has gotten away with
two nights of jail sentence on the three occasions he was convicted. “No, he has not gotten away with his crime.
He has been convicted albeit after twenty long years.
Notwithstanding the bravado, he
will indeed be a very worried man now. It is vitally important for the
prosecution to now ensure that his appeal is disposed of in the shortest
possible time by not allowing his defence lawyers to delay the process. In my
view this case is headed for multiple appeals right up to the last legal option
in our system which is a Curative petition” adds Bhargav.
When a person gets away with
crime he or she will only repeat it and will remain a threat to society at
large; the long arm of the law is made a mockery of. Thus bail is self-defeating
in law enforcement and criminal jurisprudence despite human rights and
democratic tenets.
So what more can be done?
“We do have a strong law
[Wildlife Protection Act] to curb illegal hunting. The problem is with respect
to implementation. A huge effort is required in training forest officials on
investigation and provisions of the Code of Criminal Procedure.
Even as the battle to prosecute
such offences continues in various court rooms, the most important challenge is
to prevent hunting to the best extent possible. For this, the only mantra is
‘eternal vigilance’.
I. A thorough crime review of all pending wildlife
offence cases must be carried out by Chief Wildlife Wardens of States and high priority cases identified for
investigation;
II.
ii. A competent Special Investigation Team (SIT)
comprising Authorized Officers to take up and complete investigations of
at-least identified high priority cases and file Complaints before the
Magistrate must be established;
III.
iii. Competent public prosecutors to be
identified and deputed to the Forest department to exclusively handle such
identified cases
IV.
iv. Establishment of a special fast track court
/ designated court at an appropriate location close to a large wildlife
landscape to clear the huge backlog of cases” adds Bhargav.
What is the point of bail after
conviction that too in a wildlife crime? Who speaks for the persecuted yet
innocent wildlife which paid the ultimate price for the blood soaked fantasies
of some black-moneyed brats in Bollywood where astronomical wages are the raison
de^etre for crimes against humanity and environment.
It takes political will to invoke
some very stringent laws that far sighted few from the political class have
legislated in India. It can be undone by corrupt and unscrupulous political
chicanery.
The National Forest Policy 2018
is being drafted. There is a need to appoint honorary tree wardens, honorary wildlife
wardens, honorary waste wardens, honorary environment wardens, honorary traffic
wardens and honorary energy wardens in National Green Tribunal to mitigate
environmental crime in the interest of environmental justice. There is also a need for a Special
Investigation Team in every state forest department to investigate and robustly
prosecute wildlife crimes.
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