Why Pulsar Suni’s bail highlights a broken justice system

Pulsar Suni — the prime accused in the Kerala actor assault case will soon walk out of the Ernakulam District Jail. The Supreme Court, on September 17, 2024, granted him bail saying that “the trial is not likely to be concluded within a reasonable time”. And with that, all the accused in the 2017 actor abduction and sexual assault case will be out on bail. Seven years ago, on February 17, 2017 Pulsar Suni and five others abducted a top female actor in Kochi. He was arrested on February 23, 2017. He has never denied his crime to the police or the court. Actor Dileep is accused of hiring and orchestrating this entire crime. Dileep, who spent 80 days in jail, was granted bail in October 2017. In the seven years since his arrest, Suni has approached the Kerala High Court 10 times and the top court thrice with his bail plea. Section 437(6) of the CrPC notes that “if the trial of a person accused of any non-bailable offence is not concluded” within a period of sixty days from the time the evidence is taken, then he can be released on bail to the satisfaction of the Magistrate..Senior Supreme Court advocate Rebecca John explained that in principle, there is nothing wrong with Pulsar Suni being granted bail. “The issue is not with what the Supreme Court has done, the problem is bigger,” she said questioning why the trial was taking so long in such a high-profile case. In fact, Suni’s bail order comes just a day after the Kerala government accused Dileep of obstructing and delaying the trial. ‘Torturous legal process’ In January 2022, the survivor said in an interview that the process of seeking justice had entirely eroded her faith in the system and the abuse she faced from Dileep supporters has often made her feel like dropping the case. Rajesh Menon (name changed), the survivor’s brother, said that the news of Suni’s bail has been really painful. He holds the ‘shocking delay’ in the trial process responsible for this pain. “We just can’t seem to understand where and when we will get any relief,” he told TNM. He pointed out the dangerous precedent that such delays might set. “Why will women or girls come out and complain about rape? If the process becomes so torturous for a woman, what is the incentive to even report such crimes?” Pulsar Suni's sister Priya (name changed), who spoke to him after the bail hearing, told TNM that even Suni was surprised with the court’s order. “He is happy but surprised,” she said and added, “Just two days ago when I spoke to him, he sounded hopeless and told me that I should just forget him, that nothing is going to come of this case,” she said. She herself expressed a restrained sense of relief. “I know what he did, it’s wrong…he’s my brother. I don’t know how to explain what I feel…” In the seven years of his incarceration, Suni has been granted temporary bail once in April 2023 when his father passed away. He stepped out of jail for four hours to perform his father’s last rites. Priya, his sister explained that after their father’s death, their aged mother’s health has deteriorated. She herself works in Chennai as a housekeeping manager in a hotel. Her mother and her daughter live together in Kerala. “My father was not a very useful man. But it was only after his death that we realised how important it is to have a man in the house, even if it's just a useless male body,” she said. Priya doesn’t deny her brother’s crime. “What he did is absolutely wrong. There’s not a single day when we think that what Suni did is okay. I have lost my cool with him many times. I’ve asked him myself, ‘Am I not a woman?’” Ten bail pleas at HC, three at SC The most peculiar aspect about the bail granted to Suni is the sheer number of times he had to ask for it — 10 times in the Kerala High Court and three in the Supreme Court. In 2017, during his very first year of incarceration, Suni had filed four bail applications in the high court, of which the court made sharp remarks on one. In one of his bail application, Suni tried to claim that the case merely pertains to “outrage of modesty… or at the best, only a case of attempted rape”. The court slammed him and said that this was a “clear case of rape by a gang”. The court also accused him of trying to escape and destroying scientific evidence. After his failed attempts at the High Court, Suni approached the Supreme Court for the first time in April 2022. The top court dismissed and redirected him back to the High Court with a caveat which said that Suni would have a right to a bail release “ “if the trial is not concluded within a reasonable time.” Based on this observation, after six years of incarceration, Suni once again approached the High Court in January 2023. The court turned him away and insisted that given “the peculiar facts and circumstances of this case” he should be in custody during the time of the trial. Advocate Sriram Parakkat who represented Suni at the Supreme Court said that this High Court order is "severely problematic" and goes against legal jurisprudence and the right to life of an undertrial. "In actuality, it sets the wrong precedent. I saw this order being used to justify the incarceration of an undertrial in other cases." A year later, Suni again turned to the Supreme Court in April 2024, which refused to interfere with the HC order. After three more bail applications, in June 2024 the High Court lost its patience. It slapped a fine of Rs 25,000 on Suni for repeatedly filing bail petitions. Once more, he approached the Supreme Court and argued that the extended incarceration was a violation of Article 21 (right to life and personal liberty) under the Indian Constitution. The court finally granted him bail on September 17, 2024, considering the length of his incarceration as an undertrial. The court also said that there was “no possibility” of Suni influencing the prosecution witnesses. The two-judge bench also said that the state government is free to insist on “stringent terms and conditions.” The Supreme Court asked for Suni to be produced at the trial court where he will be told his bail terms and conditions. Justice Madan Lokur, retired Supreme Court judge said that while Suni’s bail is “not surprising”, he called his bail trajectory bizarre. He questioned why the Supreme Court couldn’t decide on Suni’s initial bail plea. “Nobody can be kept an undertrial prisoner for years together. When will the High Courts and trial courts realise this?” he said. “I am afraid this case suggests a collapse of the criminal justice system. The judiciary needs to wake up,” he said. While granting bail, the Supreme Court acknowledged that this fine of Rs 25,000 should not have been imposed. However, it said that “as the costs will go to the Kerala Legal Services Authority, we are not interfering with the same.” . Delay in process In the bail order, the apex court also pointed out that Dileep’s legal team had cross examined Baiju Paulose, the investigating officer of his case for seven months from February 2024 to September 2024. The deposition of this cross examination alone runs into 1800 pages. “Why was Dileep’s team being granted so much time to cross examine witnesses?” asked senior advocate Rebecca John. “This actually reflects the trial court’s complete absence of control exercised in this case. Why has this case gone on for so long?” She also raised the question of why the prosecution, that is the survivor’s legal team, has listed so many witnesses. “It shows a lack of tightness, a lack of robustness and a lack of urgency by the prosecution team,” she said. Rebecca was pointing to the fact that the prosecution had listed 261 witnesses in the case. Advocate TB Mini, the survivor’s lawyer, expressed unhappiness over the release of Pulsar Suni on bail. “He has confessed to committing the sexual assault. Now, if he is released, there are also chances that he might commit a similar crime,” she said. Regarding the delay in trial, she said that the trial is ongoing and a major part of it is over. Advocate Harish Vasudevan who has closely followed this case for the last seven years echoed Rebecca John in saying that the bail granted to is justified. Justice Madan Lokur also pointed out that it is shocking that while Suni has been granted bail, many others have not been extended this right to life as an undertrial. “We have the classic case of Umar Khalid, Gulfisha Fatima and others who are undertrials in jail for more than four years with no hope of the trial starting soon. When will they get bail?” he asked..An orchestrated nightmare: A sexual assault that unmasked Malayalam cinema