-By Dev Bansal
Introduction
Recently, in Prashant Dagajirao Patil v. Vaibhav @ Sonu Pawar and Anr. Etc. (“Patil”), Hon’ble Supreme Court (“SC”) has observed that the High Court (“HC”) cannot issue any such directions at the stage of bail which will have “a direct bearing upon the trial.” Subsequently, it quashed the direction of the Bombay HC which, while hearing bail application, called for an examination of CCTV footage to check the presence and participation of the accused at the time of the incident.
Background– In this case, the petitioners are accused of severe offenses as to be given death punishment if convicted. However, since they had been in jail for nearly 2 years and the HC had not decided their case due to the pendency of proceedings before it, they appealed to the Court to examine CCTV footage to prove that they were elsewhere at that time of the crime. It is important to note that bail can be granted even in cases of non-bailable offenses if the court deems fit, provided it does not impair justice or harm society. Hence, this judgment seems to have turned hopes of those into ashes who are falsely/mistakenly charged and can be granted the benefit of bail by relying on the Court’s discretion based on the stated evidence, which has even been considered the best by the SC itself.
Issue– It is well-established that detailed examination of evidence and elaborative documentation of the merits of the case are not to be undertaken at the bail stage. Also, there are no exhaustive guidelines for this stage. Yet, the SC in Sitaram Popat Vetal has stated the factors like “nature of the supporting evidence” and “prima facie satisfaction of the Court in support of the charge” to be taken into account.
The prime questions which thus arise are- 1) Whether CCTV footage is such conclusive evidence as not to be referred at the stage of bail, and, 2) Although at present, the plea of alibi is inadmissible at the bail stage, is there absolutely no scope of its admissibility even in aforementioned circumstances? This article seeks to analyze these questions while also exploring the current situation in grant/refusal of bail in light of recent judgments.
CCTV as evidence- Conclusive or Prima Facie?
The admissibility of electronic evidence is governed under sections 65A and 65B of the Indian Evidence Act, 1872. As per Section 65B, a certificate showing fulfillment of conditions under this section is to be submitted before the court, where the conditions basically check for the authenticity of the evidence to sanctify its proof.
In July 2020, the SC in Arjun Panditrao Khotkar, clarifying the interpretational conflict, held that the requirement of the certificate is a precondition to the admissibility of a secondary evidence pertaining to electronic record; however it is not so if original/primary document is produced before the court. It is imperative to note here that CCTV footage may be predominantly secondary in nature since in CCTVs, captured images are converted to digital through Digital Video Recorder which stores data in electronic form, and in case of huge servers, it is not possible to put them before the court. Hence, if CD/USB or alike devices are used for the purpose, they will be deemed as secondary sources and thus require a certificate confirming that the evidence submitted has not been ill-treated or tempered with.
But what’s important here is that from the above statements it is axiomatic that CCTV footage needs to go through scrutiny for its authentication before its admission. Hence, it can be asserted that as far as the “prima facie” satisfaction of the Court is concerned, it may peruse such important evidence instead of totally neglecting it. Since the presumption of innocence is a core principle of Indian criminal jurisprudence, the benefit of doubt must be given to the accused till the proceedings reach the stage of the trial. In Aman Gaur v. State, the Delhi HC after having a bird’s eye view of the matter granted bail to the petitioner, relying on CCTV footage and coupling it with other reasons, even when he was accused of severe charges as to catch at least life imprisonment, if not death. It stated, “the Court feels that there is not much of discrepancy in the CCTV footage of the accused persons, then certainly, prima facie, view could be formed by the Court by referring to the same.”
Plea of Alibi – Conundrum with its Admissibility
Presently, the plea of alibi is inadmissible at the stage of bail so that no party is prejudiced at the stage of the trial. It is to be dealt with during the trial where the claimant is to prove it by cogent evidence. However, since the grant or refusal of bail is entirely within the discretion of the judge hearing the matter, what follows shall examine whether there is any scope of its admissibility at this stage or is to be absolutely neglected.
In bailable offenses, bail is a matter of right, and thus the chances of the grant are fairly high unless the court observes otherwise. However, in the case of non-bailable offenses, it is not that easy. The court, in such cases, needs to indicate reasons for prima facie concluding as to why bail was being granted.
So can the alibi constitute such a reason?
The matter and the evidence at the bail stage are not to be elaborately discussed so that the case does not appear to be prejudged, and thus the court needs to strike a balance between those reasons and prejudice. But in furtherance, we see that in Shaikh Sattar v. State of Maharashtra it has been held that the defense of alibi is to be proved with certainty to totally exclude the possibility of presence at the crime scene. Hence, it can be concluded that prima facie consideration of the court with the respect to alibi can be held distinct from that during the trial where it needs to be proven beyond a reasonable doubt.
Is The Existing Bail Procedure Unbalanced?
Usually, the bail proceedings are heavily based on the charge-sheet and submissions of the prosecutor. In practice, the prosecution often relies on self-serving and incriminating material and suppresses the exculpatory evidence. It has also been explicitly held that the defense of the accused is immaterial at the stage of framing of charge and thus cannot be advanced; and that reliance can only be placed on the charge-sheet and the record submitted by the police. Even the factors which have been stated by the SC to be taken into consideration while deciding over the bail matters nowhere call for the accused’s submission.
This intrigues, whether the bail proceedings are more of an ex parte hearing?
In K.N. Joglekar, it was stated, “It is not any one single circumstance which necessarily concludes the decision, but it is the cumulative effect of all the combined circumstances that must weigh with the court.” Yet, as noted above, an accused is more often not allowed to submit much of a defense material at this stage. So doesn’t this seem to dip even the meager chances of bail where the Court could have granted the same under its discretionary powers had it got the reasons to cite?
Although, as a relief, a liberal stance on the same has been taken by the SC in 2018 in Nitya Dharmananda, in which it held that despite the limitations, “if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet.” Hope it proves compatible with the earlier position in law prevailing from decades!
Precedents Supporting Grant
In Dataram Singh v. State of UP, the SC has remarked: “The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately.”
Not much ago, the Delhi HC in Kasim v. State after perusing 11 CCTV footage from various social media granted bail to the petitioner, an accused in the Delhi Riots, when he was not found in any of the footage. This clearly asserts hand-in-hand reliance on CCTV and alibi in granting bail, much as in the debated Patil case.
Concluding Remarks
Bail, not jail, is the basic rule of the Indian judiciary. Moreover, the SC has opined that the presumption of innocence would be effective by favoring bail. A detailed examination can result in a prejudiced trial and thus Ld. SC cautiously passed the Patil judgment. Yet, it can be established cumulatively that the above-argued evidence and plea should be admissible in the Courts for at least a prima facie consideration so that the accused is not left to suffer from undue torture until proven guilty.
[The author is a second year student of B.A. LL.B.(Hons.) at National Law University, Sonipat]