BAIL CANNOT BE GRANTED BECAUSE THE ACCUSED IS INNOCENT UNTIL PROVEN GUILTY -By SOHINI BISWAS

Everyone has a right to a fair trial, even the accused and to guarantee that one of the fundamental aspects of the criminal justice system comes into play, i.e., Bail.

The Fundamental Right to Liberty is ensured by the practice of Bail granting. Unless otherwise prescribed, no person should be deprived of their personal liberty, given the fact that it might not cause any hamper to nobody and nothing.

The predominant consideration with regard to granting bail or not primarily depends upon the balance between the interest of the society to that of the individuals’ rights.

The Supreme Court in its various judgements has observed that before granting bail each case requires its own scrutiny of facts and circumstances. The purpose of bail is to keep in check the accused’s personal liberty and not provide any undue privilege or benefit to them.

Nevertheless, it has been observed that granting bail is rather vague and lacks stability. The ingredients like – imposed conditions on the bail bond, considerations for granting bail, bail amount.

The term “Bail” is not defined in the CrPC (Code of Criminal Procedure), 1973, per se. However, in a literary sense, it has its origin in the Old French verb “Baillier”, which means ‘to deliver’. The widespread use of this term has also been witnessed by use in the Mughal History as, Muchalka or Zamanat.

Chapter III in CrPC deals with the provisions of bail under sections 436 to 450.

In the case of Anand Teltumbde, the accused/appellant v. The Special National Investigation Agency (NIA) Court in Mumbai rejected any bail grant on the appellant because the materials on record suggest that his active involvement in the Bhima Koregaon Violence, is sufficient to conclude the allegations are prima facie true.

The Court observed on independent hearing both the prosecution and defence that ‘there would be no hesitation to conclude at the threshold, that the material available on records is sufficient to prima facie suggest that the allegations made against the applicant are true.’

The NIA Court held that in sync with the rule of law laid down in the National Investigation Agency vs. Zahoor Ahmad Shah Watali while deciding whether to grant bail or not the Court need not hold a mini-trial at the time or conduct a ‘roving inquiry’.

Under Section 43-D of the Unlawful Activities (Prevention) Act (UAPA), Dr Anand Teltumbde should not be granted any bail for his complicity in the crime (Bhima Koregaon Violence of 2018).

The Special NIA Judge DE Kothalikar was of opinion that, “bail application cannot be allowed solely or exclusively on the ground that the fundamental principle of criminal jurisprudence is that the accused is presumed to be innocent till he is found guilty by the competent court”.

It was also revealed that Teltumbde was in touch with Milind, a wanted accused and during his attendance at International Conference be brought foreign Maoist Literature in Memory Card and those were used after the approval from the Central Committee of CPI(M) for training purpose of many students on terrorism. Although CPI (Maoist) is a banned organization in India.

Judge DE Kolthalikar further referred to the Supreme Court judgement in the Masrour vs. State of Uttar Pradesh (2009) 14 SCC 286 to submit the interest of the society and the valuable right of an individual has to be balanced and hat liberty of a person accused of an offence would lie upon the urgency of the case and that the collective interest of the community may prevail over the right to personal liberty of the concerned individual.

The Special Court has observed a golden thread in the above Supreme Court judgements that, if the Apex Court has reasonable ground to believe that the accused has committed an offence punishable with death or imprisonment for life, the Special Court would not have any jurisdiction to grant bail to such an accused except otherwise provided in the law.

Mostly in cases of non-bailable offence, offences in which the accused cannot claim bail as a matter of their right. But they may approach the Court and lie upon the judge’s discretion whether to grant bail or not.
Offences like treason. Murder, violence, rape etc are non-bailable in nature. If in these kinds of offences also the common principle of criminal jurisprudence i.e. “Innocent until proven guilty”, is taken into account, the procedure of investigation, the proper trial might get hampered.

The offenders like these might tamper with the witness, collude with the opposition party which would be highly unfair, wipe out records that might incriminate themselves and many more. Crucial scrutiny should be done while processing any accused for bail because later on, he might be a threat to society and also the sureties, stability and conditions of bail must be revisited.

In these times of raging crime entries, the principle should be reversed and made, “guilty until proven innocent”, this may bring about a change in society and people will think 10 times before committing any crime. Also, the process of investigation and trial should be expeditiously handled.

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