In a stinging critique, Upendra Baxi has compared Justice C.K.Thakker’s judgment in the Manu Sharma case to the A.D.M.Jabalpur judgment of the Supreme Court during the Emergency,and has called for its review by a larger Bench to correct the injustice caused to human rights. Justice Thakker’s judgment is here.
Clearly Mr.Baxi has lost sight of the basic tenets of criminal law. First, bail is not a human right. It might even be arguable to say that the right to approach a court to seek bail is one.
Second, bail is not granted on the innocence or probable guilt of the offender. It is granted when the Court is satisfied that the accused will not abscond, will not tamper with evidence or in any other way influence the course of justice. I’m afraid Mr.Sharma’s past conduct raises serious arguments in favour of bail being denied.
Third, the Constitution Bench of the Supreme Court in B.R.Kapur
(2001) 7 SCC 231 has clearly held at Para 40 that presumption of innocence ends with conviction by the trial court. It is incorrect for Mr.Baxi to suggest that Justice Thakker has conjured this principle out of thin air.
Finally, if Mr.Baxi had glanced at S.8(4) of the RPA Act, he would see the serious consequences of his argument.
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