It is puzzling that the Madhya Pradesh High Court’s well written concluding remarks on the ideals of mutual respect, common brotherhood and the need to preserve our country’s rich heritage finds place in an Order that denies bail to stand-up comedian, Munawar Faruqui. In this context, I look at the factors that the Court ought to have considered while deciding on an application for bail. I argue that the Court has not followed these principles in this case and has erred in denying bail to the stand-up comedian. I will attempt to make this argument while assuming that the Court rightly found a prima facie case against Munawar, since many have already criticised the Court on this aspect.
Under our legal system the grant of bail in cases of non-bailable offences is a matter of judicial discretion. To understand the exercise of such discretion in the context of bails, one can use the words of Benjamin Cordozo as reference point when he states that-
“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.”
It is no doubt that bail jurisprudence in India has been well established and disciplined by our judicial system. Judicial discretion must be confined to these established principles. The factors to be considered in bail applications have been restated and re-iterated multiple times in various cases. Even in the recent Arnab Goswami Case, the Court has summarised these factors as follows-
- The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
- Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;
- The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;
- The antecedents of and circumstances which are peculiar to the accused;
- Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
- The significant interests of the public or the State and other similar considerations.”
The next question is how should these factors be weighed against each other. Even though the Courts have chosen to lay emphasis on these factors depending on the facts and circumstances of each case, there still exists a broad and well-established consensus on how these principles have to be examined by the Court.
In State of Rajasthan v Balchand [(1977) 4 SCC 308], the Supreme Court stated that “The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on bail from the Court.”
Moreover, in Sanjay Chandra v. CBI [AIR 2012 SC 380], the Court has argued that bail can neither be punitive nor preventive in nature. The basic principle that governs bail jurisprudence is – innocent until proven guilty. According to the Court, “The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.” [Emphasis supplied by the author].
In other words, according to the Court, “The two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case.”
Therefore, from the list of abovementioned factors to be considered, the Supreme Court has stated that “the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment.” [See Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240]
In Munawar’s case, the Court has carefully perused the statements of witnesses and complainants and only on the basis of these statements, it has proceeded to deny bail to the comedian. It is extraordinary that the Court has not even made a cursory observation regarding tampering of witnesses or the likelihood of the accused fleeing from justice. The manner in which the Court has focussed on the intent of the accused gives one the feeling that the Court was passing judgment solely on the conduct of the accused rather than judging the application for bail. While making such a judgment, the Court provides another reason for denying bail to the accused. The Court finds that the accused has habitually been making ‘outraging filthy jokes’ on Hindu Gods in the past. However, the Supreme Court has held that it “would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.” Moreover, in Gudikanti Narasimhulu v. Public Prosecutor, the Supreme Court cautioned that “Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal.”
Lastly, the applicant has specifically argued that due to the COVID-19 pandemic, the trial is not likely to conclude in the near future. This ought to have been considered by the High Court since the Supreme Court in State of Kerala v. Raneef [(2011) 1 SCC 784] has held that “In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial.”
The offences in question are not serious offences which entail severe punishment, since the maximum punishment is imprisonment for three years. Therefore, the nature of the offence and the severity of punishment would also not be a reasonable justification for denying bail. Since the Court relied heavily on the words of the complainants while denying bail, it is only apposite that I conclude my argument with the words of the Supreme Court in Sanjay Chandra v. CBI- “The right to bail is not to be denied merely because of the sentiments of the community against the accused”.
Quoting The Courts 