Notes

While hearing a batch of petitions seeking bail in the Delhi Riots, 2020, the Supreme Court has denied bail to Umar Khalid, and Sharjeel Imam, while other co-accused have been granted bail. Khalid’s case was premised (among other points) primarily on the argument that he has been in detention for nearly five years, yet he still awaits trail. It was argued that since Article 21 of the Constitution ensured right to speedy trial the accused could not be kept in detention perpetually, awaiting trial.

The Supreme Court has dealt with this argument by breaking down “delay” into several categories. The Court notes that delay in trial, can be attributed either to the accused, or the criminal justice machinery (police, and courts). In every case where the delay is caused solely by the machinery, i.e., laxity of police in investigating/examining witnesses etc. or if the court is unable to hear the accused’s case due to heavy caseload, this would be a relevant factor in granting bail to the accused. If however, the delay is attributable even in part in the way the defence carried out its proceedings, this would not be a relevant factor in grant of bail. The Court then notes that although the prosecution was ready to proceed, Khalid and the other co-accused have raised objections, deferment requests, and issues related to sequencing of arguments. The accused have also declined to receive copies of the charge-sheet, since the accused wanted the charge-sheet to be supplied via a different mode.

It is a well-established principle that an undue delay in trial is an important consideration in granting bail. In Hussainara Khatoon vs. State of Bihar (1979), the Supreme Court issued several guidelines for the welfare of the under-trial prisoners, and upheld the right to speedy trial. Further, in the 2005, Section 436-A was introduced in the Criminal Procedure Code (CrPC) to set a maximum period for which an under-trial can be detained.

In the present case, while the Court has acknowledged the principle of undue delay in trial, and the right to speedy trial, it has followed a recent tradition of evaluating the cause of delay itself. The issue with evaluation of cause of delay, is that although in principle it is valid, in the present case it has been applied incorrectly.

It is an age old principle that no man shall be allowed to take advantage of his own wrong. Thus, an accused himself causing delay in trial, cannot later hide behind his own actions and seek bail. This would be impermissible. Therefore, the court is right in principle where any delay in trial, if attributable (even if partially) to an accused, cannot entitle him to bail. Where the Court’s reasoning falters is, in its application.

With regards the objections filed by the accused, it is worth noting that filing such objections is a matter of right available to the accused, therefore filing it cannot be deemed to be a dilatory tactic. On the point of seeking a different mode for service of charge-sheet, the Court has been too harsh without reason, and its decision in considering it to be a delay tactic is absurd on several counts.

First, following the above logic, if at all the right to seek a new mode of service is available to the accused, exercising such a right cannot fall within the scope of delay. Second, seeking an alternate mode of service does not amount to non-cooperation with the trial, the accused has not acted in a manner that does not allow the Court to proceed, or brings the court proceedings to a standstill. Third, the delay caused by requesting an alternate mode is minuscule when compared to the five year delay that has taken place as a result of prosecutorial and judicial delays, it is unfair to disregard the argument of delay on the point that this was a delay attributable to the accused.

The method in which delay has been categorised, sets a dangerous precedent. “delay attributable to accused” cannot extend to mean exercise of rights in filing miscellaneous applications. It is also imperative that it is seen in proportion to the whole delay caused in the trial. That is, even if the accused contributes a single day delay in a cumulative delay of several years in trial, such minuscule delay on his part should not place a bar on his bail. Delay attributable to the accused should be measured after looking at the number of times the accused has sought to initiate ancillary proceedings, the number of days he has sought in these ancillary proceedings, and the number of days that have been granted. Courts must move away from denying bail to an accused on the hollow ground that some delay, however small can be attributed to him.