If you do not know which order you
set aside, you probably didn’t set aside that order.
Tch
Tch Tch…. How did it come to this? I feel embarrassed that the Hon’ble Supreme
Court of India would be so lazy to not even mention the High Court order (Name
of High Court, date of order, bail application no. or the bench) it supposedly set
aside while sending accused Shahabuddin back to jail. See it to believe it[1]. While the author feels
that a compelling case would have been made out for rightfully sending accused Shahabuddin
back to jail, a case of impeachment is made out as well for ‘proven
misbehaviour or incapacity’ u/a 124 (4) of Constitution of India.
I refute any possible attempt to counter
the Laxity & incompetency of Supreme Court by asserting from the beginning that the Supreme Court should not be allowed to hide
behind “clerical errors”, especially when the order is small and is a signed
by two judges. Of Course, the options of covering up the faux pas at the highest level of judicial power are numerous, but
it doesn’t change the fact that the judgment/ order affecting the Fundamental
Right to Life & personal LIBERTY of an Indian Citizen (howsoever abhorrent
we may perceive he is), does not identify the order being set aside. This
clumsiness, in the author’s opinion, means that such an order is judicially not
capable of being enforced against the accused, and should be treated as per
incurium. And the High Court Order survives, giving accused the right to bail,
unless it is set aside again through appeal or most probably review of the
Supreme Court Order.
In
light of above scarcity of knowledge, the author would only consider whatever
is forthcoming from the SC Order and he could not check the original High Court
Order (in absence of case no., bench & date of order) which would have
thrown real light into the bail matter at hand.
In
Chandrakeshwar Prasad @Chandu Babu v.
State of Bihar and Anr., the SC noticed that HC granted bail on grounds of
there being no progress in the trial (despite an earlier HC direction for
completing trial in a time bound manner) & the period of his detention
(again the SC order is mum on a very vital aspect of case i.e. days he spent in
detention for this particular case). We only know that the accused has been in
jail for approximately 11 years for all the cases. Ironically, State of Bihar has main ground for
setting aside of HC order granting bail as, accused having an ‘infamous
history/ antecedents’ of about 60 odd cases (mostly violent crimes) pending
against him at various stages of trial & appeal, including conviction. Who
am I to suggest, but it would have been nice if the We could learn from State
of Bihar as to why he should be denied the benefits of bail for this particular
case, which should have been easy since he is so notorious. Just to add, the
accused obviously managed to get bail in every other of those 60 cases, despite
the criminal notoriety imputed on him, including in ones he had been convicted.
Therefore, whatever was against him in those 60 cases, he has been judged for
them, and has to answer for only the case at hand and not for every other case
of his life he has been implicated in.
Why
am I not surprised at the contention of the Mr. Bhushan representing the
victim, when he makes a case against accused on the basis of non- appreciation
of contents of FIR, when the case has moved ahead to trial, and the stage is
one of, after filing of chargesheet? I often wonder whether I am being paranoid
or I am really missing something here. Then of course, he also alleges that the
accused is a habitual offender. To be fair, he could be. But that has to be
shown from some record, as “habitual offender” is not a fancy term from English
Dictionary, but a legal concept under Chapter VIII of Code of Criminal
Procedure. 1973. I am sure, the point escaped his mind. He goes on to say that
the accused is a Category-A history sheeter. I am not sure of the existence of
this characterisation in law. However, he does raise one valid point, that he
has been accused of facilitating murder of a witness in an earlier case he was being
tried. He was however granted bail in the earlier case.
Mr.
Napade, Accused’s counsel, for a change (and obviously for his client) argues
on the facts of the present case at hand. He mentions the sole date in the
whole order, 03.02.2016, when accused’s bail application was rejected and a
direction was passed by HC that the trial be completed in 9 months, which did
not happen and according to accused the prosecution was deliberately delaying
the trial so as to protract his detention. This contention was somehow not
considered by the Supreme Court. Though the SC did mention that the case be
disposed- off as early as possible, without a time bound manner it was earlier
directed for. This again smells unfair, since it was a case which HC did deem
fit to be tried in a time bound manner. No reasons for given for the same,
hence, we are free to speculate. Perhaps the SC was wary that the Prosecution
may not finish the case in time directed and the accused may get another chance
to approach for bail. I tend to favour liberal element of justice than its
viciousness.
Finally,
quoting two cases with dissimilar facts and vague legal principles of law, such
as ‘exercising discretion in judicious manner and not as a matter of course’,
‘totality of circumstances and the criminal antecedents’ the Hon’ble Supreme
Court Washes its hands off the High Court Order & liberty of the accused.
The SC says that the period spent in custody by accused is not enough in this
particular case and that in totality of circumstances the case for bail is not
made out and hence the high court order was set aside and accused was ordered
to be sent to jail. As I see it, what the Supreme Court really weighed in, was
the nature of offence i.e. conspiracy to murder in this case, the victim being
a witness about to testify in his previous case. Though the accused’s version
shows (oath of two police witnesses) that he was in jail at the time, but the
brother of deceased saw accused participating in the offence.
We
still do not know as to what all circumstances did the high court consider, but
the Supreme Court not once quoted the High Court’s order to indicate what it
lacked off. For all we know, the High Court order may have been a more detailed
one than Supreme Court’s & a better reasoned one.
I
also wonder as to how will the executive order of state execute this order,
which does not mention the Court, Bench, Date of Order and Bail Application
Number, which the Supreme Court supposedly set aside. It is condemnable in
strongest terms, as to how casually the Supreme Court is functioning, when the
public opinion is clearly against the accused. I also express my anguish
towards the two senior advocates and one senior lawyer involved in this case,
who could not notice such a glaring defect in the order. I hope that somehow
the Supreme Court is alerted and the order be review instantly. It should also
realize that it’s a judicial organ of state & not a monarch, which can
order anything and get it implemented. One mustn’t test the moral authority,
the legendary judges of Hon’ble Supreme Court have earned with their hard work
and competency. It should not be squandered by the incumbent judges.
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