New Delhi: If a state or any prosecuting agency, including a court, has no wherewithal to provide a speedy trial to an accused, then none should oppose a plea for bail on the ground that the charges were of a serious nature, the Supreme Court said this week.
With these strong words, the top court reiterated its earlier directive on speedy trials in criminal cases, emphasising that it is the right of every accused and a facet of Article 21 of the Constitution, which entitles every citizen to live with dignity. This right is available to a citizen irrespective of his or her status and applied in every case notwithstanding the nature of the crime.
“The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever, stringent the penal law may be,” a bench of justices J.B. Pardiwala and Ujjal Bhuyan observed.
It added worryingly that “trial courts and High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment”. Rather, the requirements for bail are merely intended to secure the attendance of the prisoner at the trial, the court said.
The comments were part of a 12-page bail order in a terror case against Mumbai-based Javed Gulam Nabi Shaikh by the National Investigation Agency (NIA). The order was pronounced on 3 July. A detailed order was uploaded Thursday evening on the top court’s official website.
The order is likely to benefit undertrials who are lodged in terror cases and are unable to secure bail, despite prolonged incarceration, due to stringent provisions in the law.
Arrested in February 2020 from the international airport in Mumbai, Shaikh was accused of carrying counterfeit currency notes of the denomination of Rs 2,000.
Given the nature of the crime, the investigation in the case was handed over to the NIA, which alleged that Shaikh received the counterfeit notes in Dubai when there for a three-day visit, between 6 and 9 February, 2020 and that this consignment was smuggled from Pakistan. It charged him under various provisions of the now outdated Indian Penal Code (IPC) and the anti-terror law, the Unlawful Activities (Prevention) Act, 1967.
The NIA made two more arrests in the case, but both accused were granted bail by the Bombay High Court. The agency appealed in the Supreme Court against the release of one of them, which is pending.
The bench’s order came on Shaikh’s appeal against the 5 February Bombay High Court ruling, which declined to release him.
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‘Never write off any criminal’
On Wednesday, when the bench of justices Pardiwala and Bhuyan took up the case for hearing, the counsel representing the NIA and Maharashtra sought an adjournment. But given that Shaikh was in custody for the last four years, the bench declined the request and proceeded to hear the matter on merits.
The court exercised its discretion in Shaikh’s favour on three grounds, the first being the length of his incarceration. Second, the judges pointed out that the trial court had not proceeded even to frame charges in the case in the last four years. The framing of charges is the first stage of the trial in a criminal case. The examination of witnesses is done after this.
The third point that favored Shaikh was that the NIA had presented a list of 80 witnesses to be examined during the trial. In view of the tardy progress in the case in the trial court, the judges wondered how long it would take for the trial to “ultimately conclude”. They went on to record in the order: “Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.”
The order reflected upon some earlier SC judgments — delivered in a span of over 30 decades — to reiterate that the object of bail is to secure the attendance of the accused at the trial and that right to a speedy trial is “implicit in the broad sweep and content of Article 21”.
Though Article 21 allows the deprivation of a person’s liberty, it can only be done with a “reasonable, fair and just” procedure, which the order maintained, included a speedy trial.
The court skimmed through the NIA Act, a special law that provides for an exclusive court to hear the agency’s cases on a daily basis. NIA cases, it added, have to be given precedence over the trial of any other case.
It then specifically dealt with earlier top court judgments that have granted bail in cases registered under stringent laws such as UAPA and the anti-drug law, NDPS. These two laws have strict conditions for bail, making it difficult for undertrials booked under them to secure a release while the trial is on.
However, upon weighing the verdicts, the court opined that the correct approach in such cases should be to release the accused on bail if the trials are not concluded within specified periods.
“Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption,” the order noted, adding that this humanist approach is missed by courts when they deal with delinquents, both juvenile and adult.
Commenting on how a variety of factors may be responsible for making the offender commit a crime, the court observed: “Every saint has a past and every sinner a future.”
Talking specifically about Shaikh’s case, the bench pointed out that he was still an accused and not a convict. And it was convinced that with the manner in which the prosecuting agency as well as the court have proceeded, his right to speedy trial “could be said to have been infringed”, thereby violating Article 21 of the Constitution.
(Edited by Tikli Basu)
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