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The Delhi High court has opined that digital and electronic equipment with a tracking system ought to be introduced in India to monitor the movement of the accused released on bail. (State vs Sanjeev Chawla)
A single Judge Bench of Justice Asha Menon stated that there was a need for investigating agencies and the Government to consider the use of advances in technology in cases where there is an apprehension that the undertrial released on bail may flee from trial.
The Court also held that bail once granted ought not to be lightly cancelled.
The Court was considering a plea by the State to cancel bail granted to an accused in a match-fixing case, Sanjeev Chawla by the Trial Court.
As per the FIR registered in April 2000 under Sections 420/120B of the IPC, there was a conspiracy to fix the India-South Africa Cricket Test Series to be played in the months of February to March, 2000 and the accused had allegedly played a major role in fixing these matches as he was the main link between the players and an alleged Syndicate.
The accused was arrested in Februray 2020 after he was extradited from London and taken to Tihar pursuant to an order passed by the Court.
Subsequently, a supplementary chargesheet was filed in the case.
In March, the accused applied for bail before the Metropolitan Magistrate concerned but the same was denied. Thereafter, the accused moved the Additional Sessions Judge who granted bail on April 30.
The Court directed the accused to not leave India without permission and to provide his mobile number which was to be kept operational at all times.
Seeking cancellation of the bail, the State argued that the investigation in the case was ongoing and the Trial Court had failed to appreciate the fact that his presence could be secured only after a long-drawn extradition proceedings.
It was claimed that the accused had left India on an Indian passport only a few weeks before the FIR was registered and became a UK citizen.
The State argued that the accused was a “high flight risk" and this fact had been completely ignored by the Trial Court.
Inter alia, it was further argued that the accused could not be given the benefit of the guidelines with respect to release of under-trial prisoners due to COVID-19 as he was a foreign national who was being probed by the Crime Branch of Delhi Police.
Counsel for the accused submitted that there was no evidence to suggest that the accused was likely to abscond during the lockdown with no mode of transport including flights. The Court was informed that the accused's siblings and sister’s in-laws resided in Delhi and he had deep roots in society.
Amongst other things, it was further stated that merely because the accused was a foreign national, he could not be barred from praying for grant of the benefit of the guidelines for release of undertrial prisoners during COVID-19.
After recording the submissions made by the parties, the Court iterated that the factors that needed to be considered while dealing with the question of cancellation of bail were different from those which ought to be considered at the time of grant of bail.
It noted that the following supervening factors justified the cancellation of the bail:
- Interference or attempt to interfere with the due course of administration of justice;
- Evasion or attempt to evade the due course of justice;
- Abuse of the concession granted to the accused;
- Possibility of the accused absconding;
- Likelihood of/actual misuse of bail;
- Likelihood of the accused tampering with the evidence or threatening witnesses;
- Circumstances where it is no longer conducive to fair trial to allow the accused to retain his freedom.
Relying on caselaws, the Court added that even in the absence of supervening circumstances, the Court had the power and discretion to cancel bail.
These conditions, as illustrated by the Court, are as follows:
- Where the court granting bail ignores relevant material and takes into account irrelevant material of substantial nature and not trivial nature;
- Where the court granting bail overlooks the position of the accused qua the victim especially if the accused is in some position of authority such as a policeman and there is prima facie, a misuse of position and power, including over the victim;
- Where the court granting bail ignores the past criminal record and conduct of the accused while granting bail;
- Where bail has been granted on untenable grounds;
- Where the order granting bail suffers from serious infirmities resulting in miscarriage of justice;
- Where the grant of bail was not appropriate in the first place, given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified;
- When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.
In view of the above and in light of the facts of the case, the Court observed that there was no doubt on the genuineness of the State's concern that the accused might distance himself and jeopardise trial.
However, at the same time, it could not be overlooked that in spite of three other accused being arrested in 2000, till date, charges have not been framed against any one of them.
"The other three accused persons have been on bail since the year 2000 and 20 years later, they continue to remain on bail with no trial in sight. Even today, the petitioner/State submits that the investigations are still going on and the voice sample and specimen of handwriting of respondent/accused is also to be gathered. The trial scenario being so stark, liberty of a person cannot be left in limbo only on account of the belief of the State that the respondent/accused is a flight risk.", the Court remarked.
The Court further stated that merely because the accused had been given special facilities in the Tihar Jail, it would be no reason to deny him the benefit of the COVID-19 guidelines.
".. for an offence under Section 420 of the IPC, it would be improper to differentiate between an Indian and a foreign citizen. This would be unlike in cases under the NDPS Act or UAPA or NIA or PMLA or other similar extremely serious cases against the sovereignty of the State.", the Court said.
The Court observed that the State had come to the High Court seeking cancellation of bail immediately upon the grant of bail and, therefore, there was no occasion for a disclosure through action or words that the accused had/intended to thwart the process of justice or prevent fair trial.
Holding that liberty was precious to human life and thus bail once granted ought not to be lightly cancelled, the Court concluded that no case was made made out for cancellation of bail of the accused.
The Court also took the opportunity to suggest adoption of digital and electronic equipment to monitor undertrials on bail.
The plea for bail cancellation was dismissed with additional directions to the accused to make a call to the IO/SHO once a day and to not leave the country till the trial is concluded.
State was represented by ASG, Senior Advocate Sanjay Jain.
Accused was represented by Senior Advocate Vikas Pahwa with Advocate Jagjit Nandal.
Read the Order: