Supreme Court condemns denial of bail to give accused a ‘taste of imprisonment as a lesson’

The Supreme Court of India has said the presumption of innocence of an undertrial does not dissolve merely because a law enforcement agency says his alleged offence is “serious” or if he happens to be booked under a stringent law.

A Bench headed by Justice J.K. Maheshwari marked the court’s disapproval of agencies resorting to ways to prolong the incarceration of undertrials without bail for the “purpose of giving him a taste of imprisonment as a lesson”.

The judicial order reminded enforcement authorities that every accused who applied for bail before the top court was presumed innocent. This was a fundamental postulate of the law that does not disappear into thin air on the ground that the allegations were serious or the law was grave.

‘Disproportionate custody’

“Pre-trial incarceration cannot be allowed to degenerate into punishment without adjudication, and courts are constitutionally obliged to intervene where long custody becomes disproportionate, arbitrary or excessive,” it said..

The court said the norm “bail is the rule and jail is an exception” was etched in the ethos of criminal jurisprudence.

“Generally an undertrial prisoner ought not be placed behind bars indefinitely unless there is clear threat to society, [possibility of] influencing witnesses/inquiry or he is a flight risk etc. This rule also ensures that the process is also not made a punishment by which a person is jailed for very many years pending trial. Bail is a qualified right of an accused before conviction, wherein the accused is not guaranteed bail, rather it puts onus on the prosecution to establish as to why the undertrial prisoner should not be enlarged on bail. Any deviation in the above proposition is constitutionally circumspect,” the court observed.

The order referred to precedents that had laid down that “once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail”.

The observations were part of a recent order granting bail to Kapil Wadhawan, managing director of Dewan Housing Finance Limited (DHFL), and his brother Dheeraj Wadhawan in connection with the ₹34,000-crore bank fraud case registered by the Central Bureau of Investigation on a complaint by the Union Bank of India.

The bail laid down strict conditions on the brothers, including prior permission from the High Court before leaving the country. The court reasoned that the trial in the case, with 736 witnesses, 110 accused and a four-lakh-page chargesheet with records filling up 17 trunks, would not be completed at least in the next two or three years.