It is definitely entirely in the fitness of things and so also is most refreshing, most reassuring and most rejuvenating to see that in full consonance with the time tested most sacrosanct principle of giving priority to bail over jail the Calcutta High Court in a most learned, laudable, landmark, logical and latest judgment titled Shyamchand Mondal vs The State of West Bengal & Anr in Case No. CRR 3593 of 2023 while exercising its criminal revisional jurisdiction on the appellate side and in which hearing was concluded on 5.12.2024 and then judgment was finally pronounced on 20.12.2024 directed the Trial Court to proceed expeditiously in a POCSO case and observed that bail is a rule and jail is an exception.

It must be added that for sake of clarity, the Calcutta High Court also further clarified that this is in line with Article 21 of the Indian Constitution which guarantees the protection of life and personal liberty to all citizens of India. It must be noted that the accused had opted to approach the Calcutta High Court with a revision application that had been preferred against an order of the Special Court in a case that had been registered under Sections 376/306 of the Indian Penal Code and Section 4 of the POCSO Act, 2012.

It definitely ought to be noted that the Single-Judge Bench comprising of Hon’ble Ms Justice Shampa Dutt (Paul) minced just no words to say in no uncertain terms that:
Article 21 of the Constitution of India guarantees the ‘right to life and personal liberty’ to every individual and no one should be deprived of it except according to the procedure established by law. It guarantees the fundamental right to live with human dignity and personal liberty. Absolutely right! It must be most strictly implemented in letter and spirit also to serve its true purpose!

At the very outset, this most progressive, pragmatic, persuasive and pertinent judgment authored by the Single-Judge Bench comprising of Hon’ble Ms Justice Shampa Dutt (Paul) of Calcutta High Court sets the ball in motion by first and foremost putting forth in para 1 that:
The present revisional application has been preferred against an order no. 51 dated 15.07.2023 passed by the learned Judge, Special Court, Lalbagh, Murshidabad in POCSO Case No. 07/2017 arising out of Jiaganj P.S. Case No. 23 of 2017 dated 04.02.2017 under Sections 376/306 of the Indian Penal Code and Section 4 of the POCSO Act, 2012.

As we see, the Bench discloses in para 2 that:
Vide order dated 15.07.2023 the learned Trial Court held as follows:-

……………Heard Ld. Special Prosecutor. Since the materials on record attracts prima facie commission of offence U/s 302 of IPC as well which is a higher section than with which the accused Shyamchand Mandal has been charged and facing trial I hereby invoke the liberty granted by the Hon’ble Apex Court in Pradeep Ram Vs State of Jharkhand reported in (2019) 17 SCC 326 calling upon accused Shyamchand Mandal to appear before the Court on the date fixed (29.09.2023) to answer as to why his earlier bail is not liable to cancellation in terms of the authority reported in Pradeep Ram vs. State of Jharkhand reported in (2019) 17 SCC 326 and same is required to be heard after serving the notice on the defacto complainant. Inform all concerned accordingly………….

Briefly stated, while citing the relevant case law, the Bench points out in para 4 that:
The Supreme Court in Himanshu Sharma Vs State of Madhya Pradesh, Criminal Appeal No (s). ______ of 2024, (Arising Out of SLP (Crl.) No(s). 786 of 2024, held as follows:-

11. While cancelling the bail granted to the appellants, the learned Single Judge referred to this Court’s judgment in the case of Abdul Basit (supra). However, we are compelled to note that the ratio of the above judgment favours the case of the appellants. That apart, the judgment deals with the powers of the High Court to review its own order within the limited scope of Section 362 CrPC. Relevant observations from the above judgment are reproduced below:

14. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are:

1. The accused misuses his liberty by indulging in similar criminal activity.
2. Interferes with the course of investigation.
3. Attempts to tamper with evidence or witnesses.
4. Threatens witnesses or indulges in similar activities which would hamper smooth investigation.
5. There is a likelihood of his fleeing to another country.
6. Attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.
7. Attempts to place himself beyond the reach of his surety, etc.

These grounds are illustrative and not exhaustive.

Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed. (Raghubir Singh v. State of Bihar [(1986) 4 SCC 481).

Do note, the Bench notes in para 5 that:
In the present case:

1. The initial section under which the accused was charged is Section 306 Indian Penal Code.
2. The accused had been granted bail.
3. The trial has commenced, and there has been no prima facie violation of conditions of bail.
4. The reason for such consideration being that there is a prima facie case under Section 302 IPC.

Needless to say, the Bench specifies in para 6 stating that:
Investigation has ended. Cognizance taken. Trial has commenced.

It is worth noting that the Bench notes in para 7 of this robust judgment that, There is no observation that the accused has:

1. Misused his liberty by indulging in similar criminal activity.
2. Interfered with the course of trial.
3. Attempted to tamper with evidence or witnesses.
4. Threatened witnesses or indulged in similar activities which would hamper smooth conduct of trial.
5. There is likelihood of his fleeing to another country.
6. Attempted to make himself scarce by going underground or becoming unavailable to the investigating agency.
7. Attempted to place himself beyond the reach of his surety, etc.

In addition, the Bench then points out further in para 8 of this noteworthy judgment that:
Nor has he violated the conditions of bail granted.

Most significantly, most fundamentally, most forthrightly and most remarkably, the Bench then lays bare and so also encapsulates in para 9 what constitutes the cornerstone of this most commendable judgment postulating that:
Bail is a Rule and Jail is an exception. This is in line with Article 21 of the Indian Constitution which guarantees the protection of life and personal liberty to all citizens of India. Article 21 of the Constitution of India guarantees the ‘right to life and personal liberty’ to every individual and no one should be deprived of it except according to the procedure established by law. It guarantees the fundamental right to live with human dignity and personal liberty. As per the fundamental principle of the Universal Declaration of Human Rights a person is assumed to be innocent unless proven guilty. Therefore, no one shall be deprived of personal liberty unless specified by a fair and just procedure. Bail is an essential element of any criminal justice system, as it guarantees the right to a fair trial for the accused. Bail is a mechanism that secures liberty to the accused without providing any unjustified benefit to them.

Further, the Bench then specifies in para 10 stating that:
CRR 3593 of 2023 is allowed.

Be it noted, the Bench notes in para 11 that:
The order no. 51 dated 15.07.2023 passed by the learned Judge, Special Court, Lalbagh, Murshidabad in POCSO Case No. 07/2017 arising out of Jiaganj P.S. Case No. 23 of 2017 dated 04.02.2017 under Sections 376/306 of the Indian Penal Code and Section 4 of the POCSO Act, 2012, is hereby set aside.

Furthermore, the Bench directs in para 12 holding that:
Trial Judge to proceed expeditiously with the trial.

What’s more, the Bench holds in para 13 that:
All connected applications, if any, stand disposed of.

For clarity, the Bench clarifies in para 14 observing that:
Interim order, if any, stands vacated.

Still more, the Bench directs in para 15 holding that:
Copy of this judgment be sent to the learned Trial Court for necessary compliance.

Finally, the Bench then concludes by holding and directing in para 16 of this notable judgment that:
Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously after due compliance.

In conclusion, it thus merits no reiteration that all the Courts in India must pay heed to what the Calcutta High Court has held so very clearly, cogently and convincingly in this leading case and act accordingly. There can be just no gainsaying that the most fundamental tenet of criminal jurisprudence that:
The principle that bail is a rule and jail is an exception is in line with Article 21 of Constitution which guarantees the right to fair trial and protection of life and personal liberty to all citizens of India must be most strictly implemented as held so very commendably in this leading case also by the Calcutta High Court! No denying or disputing!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh