Defence Strategies During Bail, Remand & Investigation : From Senior Adv Rebecca M John

In a highly educative and enlightening session, Senior Advocate Rebecca M John discussed various important strategies, that could be employed by defence lawyers for an effective criminal trial.John, who has handled notable cases such as Arushi Talwar, Hashimpura, 2G trial etc, was talking at a webinar organized by LiveLaw on the topic "Strategies of a Defense Lawyer in a Criminal Case" as part of Law Practitioners series.Excerpts from her session : Appropriate time to move bail applicationShe said that there were "no real, clear answers" to the vexed question of what is the appropriate time to move a bail application."I would hesitate to file bail application when the person is remanded to police custody, and would prefer to wait till police custody is over or after the person is remanded to judicial custody", she said.Explainer : Judicial Custody And Police Custody Comparing the initial phases of investigation to a "cat and mouse game", she said that when the evidence is coming against the accused in a "fast and furious" manner, it would be advisable to wait till things settle down.Again, there are no clear answers to this, and it will depend on the facts and circumstances of each case.One can try moving the primary court, just to judge where the investigation agency is taking the case against the accused, and then move the superior court after getting an idea about the progress of investigation.However, there is no point in moving the superior court if you are certain that the application will be dismissed. Dealing with opposition to bailThe Senior Advocate said that one must be prepared to deal the grounds of opposition to bail.There are some standard oppositions, such as, the applicant is an accused in other cases, there are chances of tampering of evidence, accused is not cooperative with the investigation etc.John highlighted that mere pendency of other criminal cases is not a ground to deny bail.In this regard, she referred to a recent Supreme Court decision, Prabhakar Tewari vs State of Uttar Pradesh, which held that factors like gravity of offence and pendency of other cases by alone are not sufficient to deny bail.Often, the prosecution argues that the grant of bail will send a wrong message to the society. This is also an untenable argument.Recently, the Delhi High Court ruled that bail cannot be refused on such grounds. Quoting that judgment authored by Justice Anup J Bhambhani in the case, Firoz Khan vs State she said "remit of court to dispense justice in accordance with law and not to send message to society".Another ground often raised by the prosecution could be that the accused is not cooperating with the investigation.This is also a legally flawed argument. It must be remembered that the accused has the right to silence, and right against self-incrimination, which is protected under Article 20(3) of the Constitution.The accused is well within his rights to bring out his defence only at the stage of trial. The accused is not bound to furnish exculpatory evidence at the stage of investigation.In the context, John referred to a recent judgment of Delhi High Court in Navendu Babbar v State of NCT of Delhi, in which held that the non-cooperation with the investigation cannot be a ground to reject bail.The Investigating Officer cannot be heard to say that till the applicant shares with him every shred of evidence which he thinks exists, applicant has to be kept in custody, the Court had observed in that case.Also, remember the golden rule that bail is the rule, and jail is the exception.Referring to Delhi High Court judgment in Ashok Sagar v State, she said that even seriousness of the offence is not a determinative factor to reject bail."Incarceration during trial is not punitive, but a measure to secure the presence of accused for trial", she quoted from the judgment.Change of circumstancesRejection of one bail application is not a bar to submit subsequent bail application, if there is a change of circumstances.One of the unwritten principles of law on bail is that change of circumstance is ground to consider subsequent bail application.Even if bail application is dismissed at the investigation stage, that is not the end of the matter. Filing of chargesheet is a change in circumstance. By and large, courts will relook the evidence and consider the bail application afresh, after the filing of final report.At that stage, the case against the accused is crystallized, and evidences and witness statements are secured.In the 2G Case (Sanjay Chandra vs CBI), the Supreme Court held that once the chargesheet is filed, the accused can taken benefit, and bail should be ordinarily granted, as the investigation is over and the accused is not required for any purpose other than trial.Therefore, post the filing of chargesheet, you can start all over again.Strategies during remand.Stating that this was an area where criminal lawyers do not pay much attention, she said that multiple strategies could be...

Defence Strategies During Bail, Remand & Investigation : From Senior Adv Rebecca M John

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