WHY THE HIGH COURT ORDER DENYING BAIL TO THE STANDUP COMEDIAN MUNAWAR MAY BE UNTENABLE IN LAW
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:
The decision ignores the fundamental principle of criminal law : Presumption of Innocence.
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).
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.
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?).
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.
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.
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.
The case, therefore, is based on oral and documentary evidence, which is already in the custody of the Police.
In such circumstances, there is absolutely no need of custodial interrogation or detention.
The denial of Bail, therefore, is unfortunate, and untenable under the law.
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).
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.
One hopes that the order is corrected by the Supreme Court soon.
Thanks for your question. Circumstances such as : i) previous attempts at absconding; ii) position of power and influence and active attempts to intimidate witnesses either directly or indirectly, etc, may be facts which help the Court evaluate the above.
The fundamental principles should be read over n over again to sink into our heads….(applicable to young and old) especially whilst arguing. Most of us think we will remember but do forget n go blank at times.
Thnx Adv. Bharat Chugh for all your posts, videos n webinars which act like continuing legal refreshers for me.
HON’BLE SIR,You’ve once again been Bold to point out the flaws caused by prosecution in pleading the case before Hon’ble High Court and prejudice caused to the accused.Your commentary covering judgments of the Su-preme Court, ontains commentary in very precise and to the point manner with a sharp and critical analysis of the findings.
Without going into the reasons why the order is clearly untenable in law as the same have been appropriately discussed by you, I would take this opportunity to share few lines eloquently stated by Justice Benjamin N. Cardozo in his much celebrated and acclaimed work ‘The Nature of the Judicial Process’,
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”.
Needless to mention, it’s high time our honourable courts pay heed to the words of Justice Cardozo, especially when it comes to bail jurisprudence as evolved in the light of some landmark cases!
Have been reading your blog off and on, and find it to be very much contemporary to the things happening in our vicinity.
Have been a management student and a science graduate and started practicing law only a few years back. My earlier teachings made me always pointed 2+2 being 4 but not in the case of law.
The way I see it in the courts and proceedings I have been to, bail has been reduced to a tool which only the wealthy or the connected can exercise effectively. Rarely have I seen a judicial officer grant it basis the grounds mentioned in the statute.
It mostly is dependent on who is arguing , how popular / common the matter is and what the PP wants to get done. Leaves very less scope of fairness as the poor judicial officer gets nothing in case his order of bail is proven right and a severe reprimand in case it proves to be a disaster.
Not much is being done to remove this opacity in the ratio decidendi of what goes into making such a decision. Going to higher courts to remove the erroneous interpretations of lower courts is tedious and a costly affair.
Hope the newer generation of judicial fraternity show the courage to delve deeper into issues and not shirk their moral responsibility (……)