When convicts can be released on parole, undertrials too can be given interim bail: Calcutta High Court

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When a convict can be released temporarily on parole or furlough to meet his family members, an undertrial, who is presumed to be innocent till proven guilty, too can be released on interim bail, the Calcutta High Court recently said [Manaranjan Mandal @ Manoranjan Mandal @ Liton vs State of West Bengal].

A Division Bench of Justices Tapabrata Chakraborty and Biswaroop Chowdhury made the observation on April 9 while granting temporary bail for four weeks to a rape accused.

The Coourt noted that the petitioner had been in custody for 2 years and 10 months.

It further noted that all the witnesses in the case have been examined and the point that remained for consideration was whether it would be unreasonable on the part of the petitioner, aged 23 years, to pray for bail at this stage.

“The answer is obviously no. An undertrial who is presumed to be innocent till proved guilty may reasonably expect that his right to personal liberty be kept intact during trial and and he be permitted to stand trial by imposing some restriction of his right instead of detention,” the Court said.

The bench emphasised that a person under custodial detention, especially at a young age, suffers mental agony and trauma which may be avoided during pre-trial stage, unless it is a very exceptional case and release of the accused will be a threat to public safety and prejudicial to trial.

“A person being incarcerated for a long period during stage of trial loses his contact with his family members and relation which has every possibility to create stress and depression and is not desirable specially during pre-trial detention. In the event it is not possible to enlarge the accused on confirmed bail the accused may be granted interim bail for short period few times so that he may meet his family members and relations and exercise his right guaranteed under the constitution for a short period during trial when he is presumed to be innocent,” the bench underlined.

The Court further pointed out that there is a provision of parole and furlough for convicts to step out of the prison, though for a temporary period.

“When there is a provision of release on parole for a short period of a convict undergoing sentence of imprisonment there may not be any sufficient reason as to why an undertrial cannot be granted interim bail for a short period,” the Court said.

Thus, the bench made it clear that even if there is possibility to conclude trial within a short period, an undertrial may be granted interim bail if there is difficulty to grant regular bail during trial unless there are very serious exceptional circumstances.

The petitioner was accused of raping a girl and assaulting her with a sharp weapon on June 5, 2021 when she along with her sister had gone to the field to cut grass. Immediately after the incident, the victim lodged a complaint with the local police under the relevant provisions of the Indian Penal Code (IPC).

However, the bench noted from the records of the case that the victim, in her section 164 (of Criminal Procedure Code) statement, had accused the petitioner of outraging her modesty and not rape.

“Upon perusal of the statement, prima facie, it will appear that on the date of the alleged incident the petitioner tried to outrage her modesty and there is no allegation of rape and when she resisted, the petitioner took the scissor and assaulted her,” the Court noted.

Further, the Court considered the fact that the injury sustained by the victim was basically a cut injury in her hand and neck.

“The medical examination report does not show injury in the genital organs,” the order said.

The Court further said that every person has some obligations towards the society and also some basic rights. It explained that when a person is implicated in a criminal case he has to face trial.

“In the event it is thought fit to keep a person in custody till conclusion of trial he should be granted interim bail to meet his family. All persons have basic rights to be with their family and in case of trial in custody for some short interim period,” the Court observed.

A person has some obligations towards the welfare of his family as his family is also a part of the society. So scope should be given to him to discharge the said obligation, the Court underscored.

“When such scope is available to convicts undergoing imprisonment to meet family there is no reason why the same should not be granted to undertrial prisoners who are presumed to be innocent till proved guilty unless it is a very exceptional case,” the Court held while allowing the plea for temporary bail.

Advocate Hillol Saha Podder appeared for the petitioner.

Advocates Kallol Acharjee and Kallol Nag represented the State.

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