Seriousness of charge is not the only factor in grant of bail: Bench

The Supreme Court on Wednesday ordered the release on bail of five corporate executives in the 2G spectrum case, holding that there was no reason to detain them in custody that too after the completion of investigation and filing of the charge sheet.

A Bench of Justices G.S. Singhvi and H.L. Dattu said: “This court has time and again 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. Even persons accused of non-bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him/her and/or if the court is satisfied there is need to release such accused on bail.”

Writing the judgment, Justice Dattu said: “The object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand trial when called upon by the court. 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.”

It would be quite contrary to the concept of personal liberty “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 witnesses if left at liberty, save in the most extraordinary circumstances.”

The Bench said: “Apart from the question of prevention being the object of 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.”

In this case, the appellants were denied bail as the accusation was “seriousness of the charge.” “The offences alleged are economic offences, which have resulted in loss to the state exchequer. In our view, seriousness of the charge is no doubt one of the relevant considerations while considering bail applications but that is not the only test or factor: the other factor that also required to be taken note of is the punishment that could be imposed after trail and conviction.”

Constitutional rights

The Bench said: “If the former is the only test, we would not be balancing the constitutional rights but [would be doing] rather “recalibration of the scales of justice.”

Pointing out that grant of bail was discretionary and this should be exercised with great care and caution, the Bench said the reasoning adopted by both the special CBI Judge and the Delhi High Court in rejecting bail to the appellants “is a denial of the whole basis of our system of law and normal rule of the bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.”

For grant of bail two paramount considerations should be kept in mind — a likelihood of the accused fleeing from justice and his tampering with prosecution witnesses. “Both of them relate to ensuring fair trial of the case. Though this aspect is dealt with by the High Court in its impugned order, in our view, the same is not convincing.”

The Bench said that in the Bihar fodder scam case also, the Supreme Court granted bail to the accused, taking into consideration the seriousness of the charge and the maximum sentence that could be imposed for the offence and also the fact that the accused had been in jail for more than six months.

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