As a lawyer, let me share something regarding personal liberty
of under trial accused vs. public interest and fair trial in respect
of bail in this article.
Personal liberty is undoubtedly a right of a person since his birth. It is established principle of law that personal liberty of under trial prisoner is a fundamental right under Article 21 of continuation of India. However, the question is that whether this principle is applicable in respect of bail for non bailable offences , more particularly, in sessions triable cases where to grant bail is purely discretion of court and in the case where the accused threatens the witnesses and /or the complainant of the case for which the accused has asked for bail. Here there are two aspects: one is discretion of Sessions Judge and other is threatens given by the accused to the person/s related to the prosecution case. Now, right to liberty is played a vital role when an under trial prisoner is jail due to prolonged delayed in prosecuting the case from prosecution side. It is a relevant point to be considered to enlarge the under trial prisoner on bail under the circumstances where prosecution is dragging the case due to any reason. The Court should, on the basis of the principle of personal liberty, enlarge the bail to the accused in such type of cases.
Now the question is whether the principle of personal liberty of under trial prisoner can be applicable for bail when the prisoner/ accused threatens the persons of prosecutions case and tries his best to hurdle the fair trial of the case by tampering with evidence of the prosecution case and where such personal liberty becomes harmful to the society at large ? In another words whether fair trial is to be protected or personal liberty of such accused is protected is the pivotal issue in this article. Let's me discuss this issue with relevant judgments.
In the case of Talab Haji Hussain vs. Madhukar Purshottam Mondkar reported in AIR 1958 SC 376 , the issue to be decided before Hon'ble Supreme Court was that whether, in the case of a person accused of a bailable offence where bail has been granted to him under section 496 of the Code of Criminal Procedure, it can be cancelled in a proper case by the High Court in exercise of its inherent power under section 561A of the Code of Criminal Procedure? While adjudicating this issue, Hon'ble SC emphasizes on two material aspects of criminal trial. One is fair trial and the other is inherent power of the High Court while granting bail in non bailable or bailable offence by observing that " if a fair trial is the main objective of the criminal procedure, any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured; and this can be done, if necessary, by the exercise of inherent power." The SC also observed that "... the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused ; and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption ; but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent power of the High Courts to secure the ends of justice. There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked.'' Thus in this Case Hon'ble SC confirmed the Order passed by the Hon'ble Bombay High Court by emphasizing fair trail against the personal liberty of the accused appellant even in the case of bailable offence as it was not safe to release the accused on bail on the basis of material on record as it is possibility on the part of the accused to create disturbance in fair trial of the case.
In another case of Shahzad Hasan Khan vs. Ishtiaq Hasan Khan reported in 1987 (2) SCC 684, emphasizing on mass interest of the society, having come to know about the tempering the evidences on behalf of the accused person , the Hon'ble SC set aside the Order of granting bail passed by Hon'ble High Court of Allahabad, Lucknow Bench by observing that "No doubt liberty of a citizen meat be zealously safeguarded by court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the court. Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution."
In a case, before Hon'ble Supreme Court, Masroor v. State of U.P. reported in 2009 (14) SCC 286 , SC beautified that there should be a balancing approach between personal liberty of the accused and interest of public and a case of prosecution. Further, Hon'ble Supreme Court, in a case Neeru Yadav vs. State of Uttar Pradesh, reported in 2014(16) SCC 508 again ardently discussed the aspect of balancing two interests by observing that "The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."
In a case State of Bihar vs. Rajballabh Prasad reported in 2017(3) GLR 2012 Hon'ble SC in paragraph no. 26 observed that if it is found that "there is a possibility of interdicting fair by the accused if released on bail, this public interest of fair trail would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a far trial on the other hand."
To conclude let it be said that world history witnesses that there were many battles in the world for human liberty. The personal liberty is the grammar of the human life. It is the most precious right not only given by law but also given by Nature. Personal liberty is a gift of Almighty. Violation of such right is fatal to humanity. Everybody likes liberty. Nobody likes to be imprisoned and wishes to lose such a precious gem i.e. liberty of life. From right to personal liberty to right to privacy of human , Hon'ble SC has delivered its best verdicts. It is said that the man is a social animal. It means that a man is a pivotal part of society and society is the main part of the life of a man. A man has to follow that legal norms of the society. In the name of personal liberty, a person is not at all allowed to behave as if he likes to and such behaviour affects seriously on social and legal norms of society directly or indirectly. In the interest of society and to protect the prosecution case from the hurdles created by the accused, the uncivilized liberty of such accused must be restrained by not granting bail as the factor of justice must be played with the victimized persons and there should be great lesson to be learnt to the accused of the heinous crimes. The society at large must be safe, secure and free from unwanted antisocial elements. I think this is the mottos of justice and law.
Chirag
Bhatt
Lawyer
09824025041
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