Monday, June 4, 2012

Editorial, "Pre-trial detention", in 15-31 May 2012 combined issue of LAW ANIMATED WORLD.


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. §§§