One strong defence for an innocent person who has been arrested by the police for non-existent offence or a bailable crime is the fundamental principle laid down in 1978 by the then Supreme Court Justice VR Krishna Iyer that “If public justice is to be promoted, mechanical detention should be demoted”.
Thus he delivered a landmark judgment holding that “bail is the rule” in cases where the offence isn’t grave such as murder or rape. Thirty three years after this verdict, the top court recalled it and granted bail to the 2G scam accused.
It has been argued by legal pundits that the need for detailed judgments regarding the safety of the fundamental rights such as life and liberty is due to the increasing misuse of powers to arrest by the law enforcing agencies, as has been witnessed in the arrest of two Zee news network editors on a legally unsustainable complaint.
In 1980, a bench headed by the then Chief Justice of India YV Chandrachud laid down the principles of granting anticipatory bail in (Gurbaksh Singh v/s State of Punjab) reemphasizing that liberty of “a person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent”.
Supreme Court lawyer Manoj Kumar Goel, who has ridiculed the Delhi Police for exceeding their statutory powers in arresting the two editors on the eve of a public holiday, says the significant verdicts established a liberal bail philosophy in India’s jurisprudence.
Another apex court judge, Justice DA Desai had held in 1983 that “the trend today is towards granting bail because it is now well-settled by a catena of decisions of this (SC) Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed’’.
“The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted ill his favor by tampering with evidence,” Justice Desai had held.
He also cautioned, rather warned, the courts against the concocted story drafted by the police against a person in their custody and said, “Courts should soberly size up police exaggerations of prospective misconduct of the accused, if enlarged, lest danger of excesses and injustice creep subtly into the discretionary curial technique...”
Concerned with the indiscriminate exercise of powers by the police to arrest or impose unwarranted provisions of criminal law to give an impression that a bailable offence is a serious crime, another former CJI, MN Venkatachaliah in 1994 extended massive relief to a large number of people who are often rendered helpless by the law enforcing agencies.
Arrest and detention in police lock-up can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person, a senior lawyer said while referring to the shocking arrest of the two Zee news network editors.
The arrest of the two editors has evoked serious concerns among a section of the serious legal pundits who want that the Law Commission’s recommendations to be implemented in the letter and spirit.
The commission then led by Justice BP Jeevan Reddy said that denying a person of his liberty is a serious matter.
A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer that such arrest is necessary and justified.
Except in heinous offences, an arrest must be avoided if a police officer issues notice to the person to attend the station house and not to leave station without permission.
However, the police ignored all these significant mandates in the case of Zee, says lawyer Syed Shakil Ahmed. Given the benefit of doubt to the police in this case, he said, the agency that’s seized of a private complaint should have filed a final report giving all the details to the trial court so that the judge concerned could have assessed evidence on record and issue the requisite order including dismissal of the police report in case it has suggested further action.