black headset hanging on black and gray microphone

Just looked at the High Court order denying bail to the comedian Munawar. With great respect, here are my two cents on how the decision is untenable in law, in my humble opinion:

  1. The decision ignores the fundamental principle of criminal law : Presumption of Innocence.
  2. The decision also ignores the rather limited scope of scrutiny at the time of grant of bail. A bail hearing is not where you appreciate evidence, or embark on a scrutiny of the case on merits, and return findings on the conduct of the accused (on merits).
  3. The statements of the witnesses (and assertions of the Complainant) appear to have been taken on their face value and accepted to be correct. This is untenable under the law. These statements are to be tested at trial. Burden of proof is on the prosecution, and is a strict one. A bail hearing is not a trial, or even a mini-trial – for that matter. Taking statements of witnesses at their face value, at the stage of bail, not only turns the presumption of innocence right on its head – but also amounts to denial of fair trial (since it deprives the accused of a crucial right of cross examination). Please bear in mind that the Accused – at this stage – has no means of rebutting what the Judge feels the ‘merits’ of the case are.
  4. In case of any reflection on merits during a bail hearing, the damage to the Accused is irreparable. (Ask, how would the accused be compensated for this detention should he be acquitted after a full blown trial. What if accused is able to prove, at trial, that : i) he did not say what is being attributed to him; or, for instance, ii) there was no intent to create enmity/malicious intent to insult/defile (Mens Rea being absent!) and the speech is protected by the constitutional freedom to speech and expression, etc, etc. By the time the trial ends (which would take years!) should the accused remain in custody?).
  5. It is settled law that Bail cannot be denied or withheld as a mark of disapproval of the accused’s alleged conduct or as ‘punishment’. This is for the simple reason that the prosecution allegations are, for want of a better term, mere allegations. A suspicion or an allegation is not proof. All of these things are required to be proved at Trial, and not just proved; proved beyond all reasonable doubt.
  6. The prime considerations to be kept in mind at the time of Bail are : Chances of Accused absconding from the process of law, the chances of Accused tampering with the evidences and/or influencing witnesses. A perusal of the judgment reveals that there was no evidence to suggest any of these. Collection of further evidence (as highlighted by the Court) can continue even without keeping the accused in detention.
  7. Admittedly, in the facts of the case, witness statements stand recorded, and alleged video evidence (of which curiously there is no discussion in the order) also stands seized.
  8. The case, therefore, is based on oral and documentary evidence, which is already in the custody of the Police.
  9. In such circumstances, there is absolutely no need of custodial interrogation or detention.
  10. The denial of Bail, therefore, is unfortunate, and untenable under the law.
  11. The decision is unfortunate as, in my humble opinion, it disregards the principle of presumption of innocence, has the effect of prejudging guilt, disregards the limited scope of scrutiny at the time of bail, and fails to apply the correct test (which is to be applied at the time of bail).
  12. Observations such as, the State must ensure that our peaceful co-existence/society is not “polluted by negative forces” are similarly unfortunate. At the cost of repetition, bail cannot be denied as a mark of disapproval of Accused’s conduct and denial of bail cannot be ‘punitive’. Reflections and comments on Accused’s conduct can only be after a full blown trial and after the Accused is given an opportunity to contest those. Not at the time of Bail.
  13. One hopes that the order is corrected by the Supreme Court soon.