PRE-TRIAL DETENTION
has always been, and still is, quite a delicate
matter, with what the well-known Telugu axiom ‘karavamante kappaku
kopam, vidavamante paamuku kopam’ [‘say bite, the frog is angry; say leave, the
snake is sore’] typically applying in this case between the
accused/ suspects and the police/prosecuting agencies. That corruption is
rampant, that the present day rulers, politicians of almost all parties,
bureaucrats, generally all the well-to-do sections of our society have been
primarily responsible for its unchecked growth is a matter widely recognized
and rued. The persons in or aspiring for power have with their enormous clout
and cunning looted the country and amassed lakhs of crores of rupees in their
private coffers, transferring large portions to tax havens abroad. If only a
part of those sums were to be invested for the real human development of the
country, there would be no poverty, ill-health or illiteracy by now. As such
the persons indulging in economic offences need to be strictly dealt with by
the harsh arm of law no doubt, but there should be some reasonable norms of law
even to try and punish such persons, lest the deviation/deprivation in such
cases may spill over to the generality and suppress the liberties and freedoms
of citizens in various other spheres too. In this context, we note that Section
167 of the Criminal Procedure Code 1973 is itself skewed with the original 14
days of pre-trial detention powers of a ‘receiving’ magistrate enlarged up to
60/90 days and the provision for bail not so liberal. ‘Bail is a rule
and jail to be an exception’,
though parroted as salutary in the background of the fundamental principle of
presumption of innocence of an accused until proved guilty, is scarcely applied
in practice. Right to fair trial is not explicitly embodied in but has to be
read into Articles 21 &
22 of our Constitution and the preparation of
proper defence for the accused is hampered in the wake of obscurely worded
provisions. It will do well to appreciate and benefit from the Article 5(3) of the
European Convention on Human Rights which ordains: “Everyone
arrested or detained in accordance with the provisions of … this Article shall
be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release
may be conditioned by guarantees to
appear for trial,” and the settled law by the European Court of
Human Rights that release on bail could only be denied on four salient grounds:
(1) danger of accused absconding; (2) his
interfering with the administration of justice (by threatening witnesses, etc.) ; (3) risk of relapse into/repetition of crime
and (4) prejudice to public order, each assessed from time to time as per the
facts and circumstances of each case by an impartial and independent judicial
officer – since without proper freedom and facility to
prepare defence the accused would indeed be denied his right to fair trial and
consequently society in general would suffer. §§§
