-By Tanmay Gupta and Yashasvi Raj
Introduction
As per Section 167 of the Code of Criminal Procedure (“Code”), an accused can be remanded for a maximum period of fifteen days at a time, up to ninety days. Conventionally, since the first day is included in the 24-hour production before the Magistrate, in practice, the maximum period extends to the possibility of remanding an accused for a maximum of fourteen days at a time. While there are multiple factors that come into play in remanding the accused such as the involvement of media (or lack thereof) in judicial determination and scrutiny over framing of charges, the scope of this piece shall be to examine the facet dealing with deprivation of personal liberty as well as to explore a trend that depicts a discernible nexus between the grant of remand for the maximum 14 day period and cases under media coverage. The authors argue that the power conferred by Section 167 of the Code, which imposes limits on the grant of custody, has to be exercised with caution without being impacted by media reports as their influence in the exercise of judicial discretion goes against the spirit of the Code.
Examples Demonstrating Effect of Media Trials on Duration of Remand
P. Chidambaram, accused of playing a key role in the INX-Media money laundering case, was made to spend 58 days in police and judicial custody of the CBI for the purpose of custodial interrogation. On his bail hearing in connection with the INX-Media case lodged by the CBI, the Supreme Court dismissed the possibility of Chidambaram being a flight risk, and averred that there was not even a whisper of evidence to corroborate the agency’s claim that an attempt at influencing the victims had been made by him. Considering Chidambaram’s past political association with the opposition at Centre, he became an easy target for the politically influenced media channels in a case with plenty of scope for dissemination of misinformation owing to the financial intricacies involved.
Similarly, the Bhim Army Chief, Chandra Shekhar Azad was remanded to judicial custody for 14 days after the FIR lodged against him alleged that he was responsible for triggering a protest that ended up pelting stones at the police personnel deputed at the location and setting a car ablaze. Similarly, Pinjra Tod members were arrested on allegations of commission of multiple offences in connection with the sit-in anti-CAA protest organized in February. The gist of the prosecution’s main contention was that they were actively engaging in “anti-national activities”, making custody interrogation necessary in order to unravel the “conspiracy behind the incident”. In the first bail hearing, on consideration of the facts and circumstances of the case, they were judiciously remanded to two days of police custody after the police moved an application seeking fourteen days police remand. However, at a subsequent bail hearing held on the expiry of the duration of police custody, they were sentenced to judicial custody for 14 days.
Although it is essential to punish the miscreants among the protestors, remanding Chandra Shekhar Azad as well as the Pinjra Tod members to the maximum duration of judicial custody that is legally permitted at a time seems excessive as there does not seem, as noted at the appellate stage, any substantial grounds for their arrest. It is pertinent to note that certain politically motivated media channels were striving to villainize those participating in the anti-CAA protests at that time. Their negative depiction of Azad and Pinjra Tod members as prominent figures in these protests may have influenced the discretion exercised in granting remand.
Another illustration of the trend of remanding the accused for extraordinary time periods due to disproportionately grave charges being framed against them without any substantial grounds is the case of the Chakraborty siblings. In conformity with this trend, Rhea and Showik Chakraborty were remanded for total durations of about 28 days and 88 days respectively on account of being charged for multiple offences under the Narcotic Drugs and Psychotropic Substances Act (“NDPS Act”). These charges included the extremely serious offence of financing illicit traffic of drugs and harboring offenders under Section 27A of the NDPS Act that attracts a jail term of 10-20 years. In Rhea’s case, no evidence was found to corroborate the NCB’s claims not only for the serious offences of financing or harboring offenders but even for the relatively trifling offences of possession and purchase of drugs as NCB was unable to recover drugs from her residence. Similarly, after being relentlessly remanded by Bombay HC, Showik was finally granted bail by a special court that dismissed any allegations under Section 27A against him and recognized that no drugs could be seized from his possession. Their case was subjected to extensive coverage by the media that aimed to augment its ratings by capitalizing on the popular anti-drug and misogynistic notions of its viewers. In furtherance of doing so, the media orchestrated and propagated fanciful theories to the extent that the Delhi HC had to step in and order Republic TV and Times Now to refrain from broadcasting defamatory content against the film industry.
A recent verdict by the Madras HC seems contrary to the discernible pattern of remanding the accused to inordinately long intervals of custody in cases that are given wide coverage by media channels. The editor of the Tamil News Magazine, Nakkeeran was arrested on charges of sedition in connection with a few articles published in his magazine, and was refused to be remanded by the Egmore Magistrate. When this matter reached the Madras HC, Anand Venkatesh J. not only upheld his refusal to remand the accused but also commended his indifference and composure amidst “a charged atmosphere in a packed Court hall flooded with advocates, police officers and media persons”. This case might not have made it to the mainstream media but was a point of considerable dissension and discussion in the regional media. Oblivious to the media pressure, the refusal to remand the accused was given only on the application of the Magistrate’s judicial mind after a careful consideration of the facts and circumstances of the case, which should serve as an example to all the judges.
Identifying Traces of Article 21 in Section 167
Article 21 of the Indian Constitution provides for the right to life and personal liberty. Esteemed as “the most precious right of human beings in civilized societies governed by the rule of law” by HR Khanna J., it demands that a person’s liberty should not be restricted without a just or reasonable cause. Although it provides for the deprivation of liberty in accordance with the procedure established by law, it is paramount that such procedure not be fanciful, arbitrary and oppressive but be “right, just and fair”. Therefore, the requirement of substantive due process has been read into the constitutional provision, which necessitates judicial application of mind in cases of denying bail or granting remand, and not mere mechanical grant of remand, simply because it may be within the boundaries of the law. This principle is exemplified by a recent verdict of the Uttarakhand HC wherein it granted bail to an accused booked under POCSO Act, 2012 in view of the paucity of evidence against the accused and the ease of securing the attendance of the accused without having him being put in custody. The Court relied on the SC judgment in Siddharam Mhetre v. State of Maharashtra wherein it observed that “personal liberty should be curtailed only when it becomes imperative according to the facts and circumstances of the case”, and had accordingly granted bail to an individual accused of abetting commission of murder. As such, one of the reasons why Section 167 envisages restrictions on grant of remand and provisions which make bail available as a matter of right after passage of a certain amount of time, is because the principles of liberty and freedom of the individual are reflected in it to provide the rights of the accused, so as to make sure they do not end up being a victim of the criminal justice system.
Examining the Impact of Media Trials on the Duration of Remand
The standard as prescribed by Section 167 to remand the accused is if the magistrate “is satisfied that adequate grounds exist for doing so.” This subjective satisfaction, like any other exercise of judicial discretion, has to be in accordance with constitutional principles of reasonability and non-arbitrariness. Certain factors are of assistance to the courts in determining the likelihood of an accused’s compliance with the conditions of bail. Such considerations that reasonably guide the exercise of judicial discretion in granting bail are the place and nature of the job of the accused, the site of his family’s residence, and the roots of the accused in society inter alia. The media exerts considerable influence in portraying the roots of the accused in society as it brings the accused and their political inclinations, personal relationships, history, etc. into the spotlight. The media can be of significant utility in buttressing the fears of the accused not conforming to provisions of bail by diligently monitoring the aforementioned aspects of the accused’s life and playing its role of a virtual watchdog. However, prejudiced reporting on the part of the media, which generally controls public perception, may lead to a hardened stance of the public on the accused owing to their unawareness of certain critical intricacies of the facts and the law. A favorable order for the accused has the possibility of the judicial system attracting flak from the community at large. The courts possibly do not want to attract criticism from the common public, for they do not have the resources to amplify their justification for granting bail.
While the legitimacy that courts hold in the public’s eyes is of great significance in the justice delivery mechanism, such legitimacy cannot come at the cost of someone else’s freedom. Moreover, the Supreme Court has time and again reiterated that courts must adhere to their duty to remain uninfluenced by the statements published or opinions expressed in the media as well as to be indifferent to the community’s sentiments against the accused. In all the cases discussed above, at the merits stage, either no cases were made against the accused, or the investigating agencies themselves withdrew their investigation. This goes on to show how the lengthy detention periods were unfairly imposed on the accused.
Conclusion
Balancing the right to life and liberty of under-trials and requirements of the investigative process is a tough task. However, it is argued that in cases where already the media is conducting its own trial, the court, while not letting it influence its opinion, should be cognizant of the same. Having used the words “witch hunt” at earlier occasions, the courts have recognized how vested interests in the media may pervert the interest of justice, which is highly unacceptable. Therefore, while maintaining this balance, it is all the more important to go into the prima facie case and roots of the accused, instead of mechanically denying bail, as has seemed to be the case recently.
[The authors, Tanmay Gupta and Yashasvi Raj, are second and third year law students respectively at NALSAR University of Law, Hyderabad .]