Tuesday, September 27, 2022

Grant bail if probe delayed, trial prolonged: SC | India News

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NEW DELHI: The Supreme Court has held that an accused should not be deprived of liberty and languish in custody because of delay on the part of the investigating agency in wrapping up the probe and in case of prolonged trial should be released on bail.
A bench of Justices Sanjay Kishan Kaul and M M Sundresh passed comprehensive guidelines on the issue of granting of bail by courts and to curb unwarranted arrest by investigating agencies.

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Referring to Section 167(2) on procedure when investigation is not completed within prescribed time, the bench said that the provision was brought to ensure an expeditious investigation and a fair trial. “An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic,” Justice Sundresh, who penned the verdict, said.
As per the section, no magistrate shall authorise the detention of the accused person in custody beyond 60 or 90 days depending upon the offence and the accused should be released on bail on expiry of the said period.
“As a consequence of the right flowing from the said provision, courts will have to give due effect to it, and thus any detention beyond this period would certainly be illegal, being an affront to the liberty of the person concerned. Therefore, it is not only the duty of the investigating agency but also the courts to see to it that an accused gets the benefit of Section 167 (2),” it said.
Holding that right to speedy trial is part of fundamental rights of accused, the bench said that a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. It said that courts must strictly follow Section 436A of the code on the maximum period for which an undertrial prisoner can be detained.
“Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offence, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule,” it said.





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