Perhaps in a message to courts across the country, the Supreme Court recently said that High Courts and Trial Courts seem to have forgotten that bail should not be denied as a form of punishment. A bench of Justices JB Pardiwala and Ujjal Bhuyan made this observation while deciding an appeal for bail by a man charged under the Unlawful Activities Prevention Act for allegedly smuggling counterfeit currency from Pakistan.
It was the appeal of a man who spent four years in jail while his trial hadn’t even started. The Supreme Court granted him bail while citing the constitutional right to have a speedy trial, regardless of the heinous nature of the crime. The court held in the same breath that when courts consider questions of bail, the test of a speedy and fair trial, as well as the ideals of personal liberty should not be weakened, and now denial of bail cannot be made into an effective tool to punish irrespective of the nature of offence involved in an alleged act.
The court pointed out that an undertrial, unlike a convict, is still an accused and must be treated as presumed innocent till proved guilty. It said the lower courts simply overlooked this cardinal principle. Delay in prosecution and incarceration of accused was taken seriously. It held that if the state or prosecuting agency is not adhering to the fundamental right of the accused to a speedy trial, then the seriousness of the offence cannot be pleaded against him in opposition to bail.
Article 21 of the Constitution applies irrespective of the nature of the crime and is not conditional on the gravity of the offence. If the State or any prosecuting agency, including the court concerned, has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial, then they should not oppose the plea for bail,”* the court said.
While allowing the appeal, the SC has observed that the prosecuting agency and the lower court have infringed upon Article 21 of the Constitution by the manner of handling the case.
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