The Bench of Justice Atul Shreedharan made the afore-mentioned remark while hearing the Bail applications of two real brothers, who are alleged conspirators or accessories before the fact of a crime, wherein an under trial, Iqlakh Qureshi, was murdered in the premises of the District Court, Chhindwara, by three assailants when he was produced before the Court below on a remand hearing.
As regards one of two accused/bail applicants (Narendra Patel), it was alleged that he harbored a motive to kill Iqlakh Qureshi as earlier, deceased Iqlakh Qureshi had attempted to murder him (Narendra Patel).
It was in the case relating to the attempt on the life of applicant Narendra Patel, that Iqlakh Qureshi was being produced before the Court below as an undertrial, that he was murdered.
The Court noted that the applicants have already completed more than three years as under trials and the evidence against them was of being involved in the conspiracy to commit the murder of Iqlakh Qureshi.
Learned counsel for the applicants sought bail, inter alia on the ground of delay in the trial on account of COVID Pandemic. The Counsel for the objector stated before the Court that if prisoners are going to be enlarged on bail only on account of them contracting the virus, it would result in emptying the jails and releasing dreaded criminals into the society, who otherwise would not have been eligible for the grant of bail.
He further argued that the manner in which the offence was committed inside the precincts of the Trial Court goes to reflect the confidence of the applicants and the sheer disdain they have for the law. According to him, the crime that the applicants have been accused of has terrified the entire city.
On Examining Witnesses through Virtual mode, the Counsel for the Applicants argued before the Court that no defense counsel worth his salt would ever agree to examine material witnesses through video conferencing as the counsel for the defense may be sitting in one city, the Judge in his Court and the witness in a third place.
The Counsels for the applicants also stated that in smaller towns, where the internet bandwidth is even lower (when compared to other cities), and the time lag may be more between the question asked by the defense counsel and the answer given by the witness. In such a situation, he argued, it may not be possible for the defense counsel to assess whether the delay in answering a question by the material witness was on account of the witness hearing the question belatedly or on account of the witness thinking on what and how to answer the query.
The Counsel for the applicants also stated that many a time, during cross-examination, the succeeding questions asked to a material witness substantially depends upon his demeanor and in the manner in which he responds, including the time taken by the witness to answer the previous question, which is an extremely relevant consideration for the defense counsel to tailor and structure his next question to the witness.
In response to the aforesaid submissions of the Counsel for the applicants, the Court said, "The submissions put forth by the Ld. Counsels for the applicants cannot be discarded as a hollow argument but is a probable eventuality which can take place while cross-examining witnesses through video conferencing."
The Counsel for the objector had argued before the Court that the crime was sensational and was commented upon much by the press and the media for the sheer magnitude and brazenness of the crime and that such a crime of this nature had never been committed in a small town like Chhindwara.
The Court differed from the stand taken by the Counsel of the objector and it said, "If Courts yield to the passive and subliminal opinion of what ought to be done in cases, or who the culprits are, as is expressed with increasing, and sometimes wanton regularity by the ubiquitous "vox-populi" viz., the print, electronic and social media, the Constitution, the liberty and life of the individual it professes to protect, would be no more valuable than the paper on which it is printed
Importantly, the Court said, "Merely because a case has generated much heat in the public domain and has been widely discussed in the media cannot be a consideration for the courts while deciding a bail application." (emphasis supplied)
Further, the Court said, "The object of the criminal justice system has been encapsulated succinctly the Latin maxim "fiat justitia ruat caelum" or let justice be done though heavens may fall. Courts are to pass orders strictly in accordance with the law and the dictate of the Court's conscience, unmindful of the consequences." (emphasis supplied)
The Court also observed that if the process of trial itself is impeded, for no fault of the accused and there is an excessive delay on account of the prosecution being unable to produce the witnesses for whatever reasons, or that the number of witnesses is so large that irrespective of the best efforts by the trial court, the case may not conclude despite the passage several years.
In such situations, the Court opined, the courts would have to use their wisdom whereby the liberty of the under-trial can be restored and reasonable conditions, having direct nexus with the jurisprudence relating to bails, can be imposed upon him.
The Courts also opined that while passing an order on bail, the Court must take into consideration the probability of the accused attempting to suborn material witnesses once he is let out on bail, as that too is a strong probability.
Under the circumstances, the Court further observed, the Court would have to balance both, the right of the accused against inordinate incarceration as an undertrial and ensure that his ability to influence witnesses, once on bail, is curtailed.
The Court also observed that in the prevailing circumstances, it may not be possible to examine all the witnesses through video conferencing.
Under the circumstances, the applications were allowed and it was directed that the applicants shall be enlarged on bail upon their furnishing a personal bond in the sum of Rs.5,00,000/- each (Rupees Five Lacs) with one solvent surety in the like amount to the satisfaction of the Trial Court.
The applicants were asked to remove themselves from the Municipal Limits of Chhindwara forthwith upon their release and have been directed to reside in Jabalpur till the conclusion of the trial.