سپریم کورٹ فیصلہ...جس کے مطابق آگر ملزم کا ایک سال یا دو سال سزا کے مطابق جیل میں مکمل ھو جائے اور مقدمہ ختم نہ ہوا ہو تو ملزم ضمانت کا حقدار قرار دیا جائے گا
Scope and extent of 3rd and 4th proviso to section 497(1), Cr.P.C regarding grant of bail on the delay in the conclusion of the trial.
2022 SCMR 1
one is embodied in the third proviso itself and the second is provided in the fourth proviso.
As per these exceptions, the right to be released on bail on the ground of delay in conclusion of the trial is not available to an accused if:
(i) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, or
(ii) the accused is a convicted offender for an offence punishable with death or imprisonment for life or is in the opinion of the court a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
(i) FIRST EXCEPTION.
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Delay in conclusion of the trial if occasioned by an act or omission of the accused or by any other person acting on his behalf.
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The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel of the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive, reflecting a design or pattern to consciously delay the conclusion of the trial. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused is not sufficient to deprive the accused of his right to bail under the third proviso. The statutory right to be released on bail flows from the constitutional right to liberty and fair trial under Articles 9 and 10A of the Constitution. Hence, the provisions of the third and fourth provisos to section 497(1) Cr.P.C must be examined through the constitutional lens and fashioned in a manner that is progressive and expansive of the rights of an accused, who is still under trial and has the presumption of innocence in his favour. To convince the court for denying bail to the accused, the prosecution must show, on the basis of the record, that there is a concerted effort on the part of the accused or his counsel to delay the conclusion of the trial by seeking adjournments without sufficient cause on crucial hearings and/or by making frivolous miscellaneous applications.
(ii) SECOND EXCEPTION.
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The accused, a hardened, desperate or dangerous criminal, in the opinion of the Court
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The second exception to the right of the accused to be released on bail on the ground of delay in conclusion of the trial is provided in the fourth proviso. According to which the provisions of the third proviso do not apply to the accused who is:
(i) a convicted offender for an offence punishable with death or imprisonment for life; or
(ii )a hardened, desperate or dangerous criminal, in the opinion of the Court; or
(iii)an accused of an act of terrorism punishable with death or imprisonment for life.
Conditions (i) and (iii) are self-explanatory and must be borne out from the record. Under condition (i), the accused must have been earlier convicted by a court of law for an offence punishable with death or imprisonment for life. Under condition (iii), the accused must be accused of an act of terrorism punishable with death or imprisonment for life. It is condition (ii) which requires the Court to apply its judicious mind to the facts and circumstances of the case and make an opinion as to whether or not the accused is a hardened, desperate or dangerous criminal. The words hardened, desperate or dangerous have been couched in between conditions (i) and (iii) and therefore signify the same sense of gravity and seriousness as to the nature of the offence and character of the accused.
The principle that the meaning of a word is recognized by its associates is traditionally expressed in the Latin maxim noscitur a sociis. A word or phrase in an enactment must always be construed in the light of the surrounding text, and their colour and meaning must be derived from their context.
Further, the words hardened, desperate or dangerous are to be understood collectively. The ejusdem generis principle is a principle of constriction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.4 For the said principle to apply, there must be sufficient indication of the category or word that can be properly described as the class or genus, which is to control the general words. The genus must be narrower than the general words it is to regulate5. Applying this principle to the phrase a hardened, desperate or dangerous criminal, it is the word dangerous which not only meets the requirements of conditions (i) and (iii) discussed above, it is also precise and narrow in order to regulate the meaning of the other two words. “Dangerous” means harmful, perilous, hazardous or unsafe – someone who can cause physical harm or injury or death.6 “Hardened” is someone who is pitiless, hardhearted, callous or unfeeling and set in his bad ways and no longer likely to change,7 having a tendency of repeating the offence and is, thus, dangerous to the society. “Desperate” is someone who is reckless, violent and ready to risk or do anything;8 such person is, therefore, also dangerous to society. All the three words paint a picture of a person, who is likely to seriously injure and hurt others without caring for the consequences of his violent act. Therefore, for this exception to apply, there has to be material to show that the accused is such a person who will pose a serious threat to the society if set free on bail. In the absence of any such material, bail cannot be denied to an accused on the statutory ground of delay in conclusion of the trial.
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