Even If Prima Facie Case Is Established, Bail Overrides Pre-Trial Punishment: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that even if prima facie case is established against an accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment as pre-trial punishment as the same clearly falls foul of the principles of criminal jurisprudence. A bench comprising Justice Mohan Lal was hearing a plea seeking indulgence of the Court for grant of bail in an FIR registered with Police Station CBI, ACB, Jammu for commission of offences under section 7 of Prevention of Corruption Act, 1988 r/w 120-B IPC. Counsel for the Petitioner vehemently argued, that the fundamental principle of criminal jurisprudence is that the presumption of innocence always lies in favour of the accused until proved and found guilty, and keeping the petitioner/accused in judicial custody in further incarceration will amount to inflicting pre-trial punishment which is against the principle of criminal jurisprudence. The petitioner further contended that the personal liberty as enshrined in the Constitution of India is of paramount importance which should not be deprived, petitioner/accused cannot be kept in detention for an indefinite period only upon the belief/mere apprehension that he will tamper with the prosecution evidence which cannot be expected as all the witnesses of the case are the officials of the CBI Department and none can expect that they will be influenced by petitioner/accused. Contesting the bail application the respondent CBI argued that the words "reasonable grounds for believing" used by the Legislature for the purpose of granting bail means, that the Court while dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and moreover due to involvement of government officials in accepting the illegal gratification/bribe the confidence of common person gets shaken. Perusal of the record revealed that case FIR registered with Police Station CBI, ACB, Jammu for commission of offences under section 7 of Prevention of Corruption Act, 1988 r/w 120-B IPC against petitioner/accused on the basis of complaint for demand of bribe of Rs. 12,000/-. Record further revealed that on receipt of the complaint the verification thereof was carried out by Sh. Sanjay Kumar SI wherein the demand of bribe by Davinder Sharma, Plant Protection Officer, Jammu from the complainant was confirmed, pursuant to which a trap was laid and the accused person namely Davinder Sharma was caught red-handed while accepting bribe of Rs. 12,000/- from the complainant and thereafter the said accused person was arrested on 11.05.2022. The moot question before the court for determination was that even when there is a prima-facie case against the accused, what should be the approach of court in the matter of grant or refusal of bail Adjudicating upon the matter Justice Mohan Lal observed that from the allegations set out in the FIR, it clearly transpires, that there is a prima-facie case against the petitioner/accused. Elaborating on the legal position on the matter the bench observed legal provisions vis-à-vis bail abundantly clear, that the principle rule to guide release on bail is, ―to secure the presence of accused during trial, the object of bail is neither punitive nor preventative, deprivation of liberty must be considered a punishment, 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. Deliberating on the matter the court found it worthwhile to record the observations of supreme court in Sanjay Chandra versus Central Bureau of Investigation (2012) wherein SC while enlarging the accused in 2G spectrum case observed "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" Dealing with the contention of bail in offences under Prevention of Corruption Act the bench took support from the observations of the High Court of J&K&L in Mohd. Razak & Anr Vs State of J&K & Anr 2007 wherein High Court while dealing with a similar situation observed. "Prevention of Corruption Act, 2006, cannot, in my opinion, be treated differently to deny them consideration for bail during investigation and trial merely because they were alleged to be involved for infraction of offences under the Prevention of Corruption Act, 2006 and general principles governing grant or refusal of bail and provision of Section 497 of the Code of Criminal Procedure are undoubtedly required to be kept in view". ...

Even If Prima Facie Case Is Established, Bail Overrides Pre-Trial Punishment: J&K&L High Court

Basit Amin Makhdoomi

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