Wednesday, November 23, 2011
Landmark Ruling of the Apex Court in Bail in respect of Economic Offences
While granting bails to the under-trial accused corporate personalities, namely, to Unitech Limited's MD Sanjay Chandra, Swan Telecom's Director Vinod Goenka, and Reliance Anil Dhirubhai Ambani Group's executives Hari Nair, Gautam Doshi and Surrendra Pipara, the Hon. Justice Mr. G. S. SINGHVI and Justice Mr. H. L. DATTU of Supreme Court of India, recently adjudicated a landmark judicial precedence in the matters of CRIMINAL APPEAL NO.2178 OF 2011 that " In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined: "The basic rule may perhaps be tersely put as bail, not jail.." In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail. In Gurcharan Singh v. State (Delhi Admn.),(1978) 1 SCC 118, this Court took the view:" Unlessexceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life.The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281 .More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that "Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important."But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated In the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, it is an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial.When the investigating agency has already completed investigation and the charge sheet is already filed, therefore, their presence in the custody may not be necessary for further investigation."
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