New Delhi: An accused cannot be kept in custody only on a “hunch” that they will prejudice the trial, and the agency prosecuting them must oppose it with cogent material that makes a case “beyond reasonable doubt,” the Delhi High Court has said.
An accused, popularly believed to be guilty, cannot be kept in custody merely to quench society’s “thirst for revenge,” held a single-judge bench of Justice A.J. Bhambhani.
Justice Bhambhani’s observations are part of the order that released former Fortis Healthcare promoter Shivinder Mohan Singh on bail. Booked on charges of money laundering, Singh was directed to furnish a personal bond of Rs 1 crore and two sureties of Rs 25 lakh each as part of his bail conditions.
Pronounced a week after it was reserved, the order was communicated to the advocates in the case through video-conference on Thursday. The detailed order was uploaded on the court website Saturday.
Singh, along with his brother Malvinder Singh, and Sunil Godhwani, are accused of committing financial fraud to the tune of Rs 3,000 crores, dating back to their ownership of Religare Finvest.
‘Should not seek custody with intent to punish accused’
Singh’s lawyer had argued that the evidence against his client had been recorded and there was nothing that warranted further incarceration. But the Enforcement Directorate (ED) argued there was a possibility of Singh tampering with evidence, that he posed a flight risk and could influence witnesses.
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The bench, however, noted that even though Singh was arrested after substantial time had lapsed since the registration of the case against him, there was no allegation of him of having tampered with evidence in any way before he was taken into custody.
In the judge’s view, the personal liberty of an accused cannot be curtailed by denying them bail merely on the basis of the investigation agency’s presumption that they will interfere with the administration of justice.
“An investigating agency must come to court with the confidence that they have arrested an accused based on credible material, and have filed a complaint or a chargesheet with the certainty that they will be able to bring home guilt by satisfying a court beyond reasonable doubt,” Justice Bhambhani stated.
He went on to add: “But when an investigating agency suggests that an accused be detained in custody as an undertrial for a prolonged period, even after the complaint or chargesheet has been filed, it appears that the investigating agency is not convinced of its case and so it fears that the accused may ‘get-off’ by discharge or acquittal.”
Under such circumstances, the judge said, it appears the agency wants an accused to remain in custody as an undertrial only to “punish the accused”. He added, “People’s trust in the criminal justice system must rest on surer footing than on pre-trial punishment.”
On examining the impugned transactions in Singh’s case, the court said they were recorded and reflected in several records, hence, the same could not be undone, reversed, modified or altered in any manner.
To keep an accused in prison for a longer period, before finding him guilty, gives out a message that “our system works only on impressions and conjectures and can keep an accused in custody even on presumption of guilt,” the court said.
‘No punishment legitimate without a trial’
The order went on to state that according the Delhi Prisons website, the proportion of undertrials to convicts is about 82 per cent to 18 per cent.
“Prison is a place for punishment; and no punishment can be legitimate without a trial. There must be compelling basis, grounds and reasons to detain an undertrial in judicial custody, which this court does not discern in the present case,” said the single-judge bench.
It cited Supreme Court’s 2012 order that gave bail to Sanjay Chandra in the 2G case and said the object of bail is neither punitive nor preventative.
Bail was to secure the appearance of the accused person at their trial, while keeping them as an undertrial in jail “seriously jeopardised” the preparation of their legal defence, the court added.
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