Principles of bail, criminal trial and trial by media - An insight

CONSIDERATION OF BAIL

Denial of bail is an exception and the grant of bail is the rule. Liberty of an individual, accused of a crime is restricted in its view to the extent of possibility of hampering the investigation, influencing the witnesses and possibility of preventing a full-fledged investigation.  The might of the accused in terms of wealth and access to power and command over the witnesses in view of his nexus to the bigwigs of the industry and official position in any of the associations which is capable of controlling the fraternity of that industry are factors to be considered against the grant of bail to that accused.

Within the scheme of the code of criminal procedure the investigating agency and the investigating officer is conferred complete power to unearth all the relevant material evidences such as material objects, documentary evidence and oral evidence of witnesses to support the case of the prosecution.  It is in this back drop an accused is sought for police custody to strengthen the investigation and this is done by the judicial order of the Magistrate.  The remand is deferred during police custody and lawfully a bail application cannot be considered without the accused being remanded to judicial custody. A person so remanded to judicial custody is an under trial prisoner and his status in the prison cannot be equated to a convict, for the simple reason that the prosecution is yet to prove his guilt in the court of law in accordance with the code of criminal procedure. To restrain a person’s liberty throughout trial of the case is not permissible as a matter of rule unless there are grave circumstances to believe the possibility of serious threat to the life and liberty of the witnesses who are named in the charge sheet.  Therefore the laying of charge sheet is normally the cut off period for an under trial prisoner to be detained in jail and the bail application moved after the charge sheet presented by the investigating agency to the Magistrate will receive a slightly better and lenient consideration from the Court and except in rare cases bail is generally granted.

Grant of bail or its denial during the investigation stage will not have any bearing or impact on the aspects of trial since trial is a test of credibility and truthfulness of the prosecution case and the criteria laid down for a conviction in trial is to prove the guilt of the accused beyond any reasonable doubt. 

FAIR INVESTIGATION- MEANING OF:

The primary aspect of commencement of a criminal case is to lodge an FIR at the earliest point of time immediately after the occurrence of the crime.  Delay in giving complaint by the victim or the informant and delay in registering the FIR by the Police and the delay in forwarding the FIR to the jurisdictional magistrate are important aspects that can become fatal for the prosecution during the trial of the case.  Delay of complaint is viewed by the Court as an exercise of deliberation and discussion with outsiders not concerned with the case perhaps leading to false implication of wrong persons as accused or exaggeration of the actual incident which will later on become a point for contradiction and lack of evidence since the incident would not have occurred as per the version of the complainant.  To put up a strong case the police are also likely to tamper with the actual version of the complainant and attempt to give an interesting colour to the otherwise normal incident and vigorously oppose the bail application before the appropriate courts.  The eagerness shown at this stage at times leads to miscarriage of justice, not only to the accused initially, but also the victim at the end of the trial.  Promptness of the investigating agency and speedy collection of material evidence is very much essential to term the investigation as a fair one.  In cases against women mostly the version of the victim gets delayed due to the social stigma and other cultural norms and the fear of bad name for the women amongst other in the society.  The police also act in most cases with a time lag allowing disappearance of evidences, decomposition of body, lack of scientific tests and reports to support its case and the late action mostly due to pressure exerted by the victim or her relatives or a group of persons campaigning on behalf of the victim both in the court and outside.  The campaign outside the court is generally through the print and electronic media.  An overdose of this enthusiasm leads to misdirected investigation, slipping of crucial accused (abscondance for a long time) leading to incomplete investigation, disclosure of material evidence well in advance to the defence counsel to prepare the defence case of the accused and enable the accused to contest the prosecution case effectively etc.

PRINCIPLES OF TRIAL

A criminal trial will have to be conducted within the corners of the charges framed against the accused. If the ingredient to make out the charge as against the accused does not get established, through material objects, documentary evidences and the oral evidence of witnesses, then the accused gets the favourable judgement of acquittal and only in other case a judgment of conviction can be recorded. The entire weight of proving the case is placed on the prosecution i.e., the investigating agency who laid the charge sheet. The accused is held responsible under certain peculiar circumstances such as, ‘last seen person in the company of other accused or deceased prior to the death in case of murder or bodily harm in case of other offences under the Indian Penal Code’.  The accused cannot remain silent when such specific charge is framed against him either as a co-accused or as a co-conspirator leading to the commission of the offence.  Therefore certain presumptions are raised against the accused under the provisions of the Indian Evidence Act wherein the accused is duty bound to offer a plausible explanation as to the said specific charge framed against him.  Normally such a situation arises in the cases where eye-witness account of the prosecution version is not available due to lack of persons as witnesses to the said specific charge.  If the accused fails to render such an acceptable explanation then he cannot expect a favourable judgment from the trial court. 

EYE WITNESS ACCOUNT AND CIRCUMSTANTIAL EVIDENCE

A criminal case is strengthened by the presence of eye witness to the incident, material objects seized during the investigation including the weapons used for crime, equipments such as mobile phones, laptops, computers, cameras etc, vehicles involved in the crime and such other objects that were used by the accused during the commission of crime, arrests of accused leading to disclosure of the commission of crime and to recoveries of material objects coupled with their confession statements admitting the guilt.  If the criminal case is based on a charge sheet containing all these aspects then it will be almost impossible to get an acquittal after the trial of the case. 

A criminal case may also rest purely on circumstantial evidence collected by the investigating agency.  Each link of the chain of circumstantial evidence needs to be proved without any break of any sequence as put forth by the prosecution during trial.  Mostly these are cases that will have to be investigated after the body of the person murdered is found elsewhere and the scene of occurrence of the murder or the crime could be totally different from where the body was found or any other link to the commission of crime was located.  In such cases the investigating officer has to collect and arrange sequentially the evidences even though the process has to be done in a reverse mechanism and ultimately the nexus of the accused to the crime and the victim has to be clearly established depicting in crystal clear terms the motive of the accused to commit such a crime.  The job of the investigating agency is tough in cases of circumstantial evidence and it is tougher for the prosecution to prove the guilt of the accused in such cases.  The defence counsel would endeavour to break the links of the chain of circumstantial evidence and disconnect the accused from the prosecution theory of the commission of the offence alleged against the accused.   Thus a probable acquittal is more likely in cases where evidence is circumstantial in nature. Thus there is a huge gap of possibility of conviction and acquittal in the two forms of criminal cases that are presented before the trial court.  The trial is the most substantial portion of a criminal case.  Examination of witnesses in chief by the prosecution to support its case as recorded in the charge sheet is the primary focus of the prosecutor before the trial court.  Care is taken to brush up the memory of the witnesses prior to presenting them in the witness box.  Once the witness is in the box then the witness is open to being cross examined by the counsel for the accused as well as by the trial judge himself.  The questions by the trial judge are recorded as court questions during the examination of the witness or accused at any point of time.  The paramount duty of the trial judge is to record the statements of the witnesses as spoken by the witnesses in order to ascertain the truthfulness or falsity of the statement made by the said witness earlier during the investigation stage in the statements recorded and compiled in the form of the charge sheet.  The court is not duty bound to support the case of the prosecution.  If any such bias is visibly seen by the counsel for the accused then on the ground of bias the defence counsel can seek the transfer of trial from one court to another by moving transfer petition before the Superior courts.

The sanctity of trial and the rendering of justice is the central focus point of any trial court.  Any activity by a witness or a lawyer or any person inside or outside the court to demean the sanctity of trial and real rendering of justice can be questioned by a trial judge by invoking certain special procedures laid down under section 340 of the code of Criminal procedure.  “Provisions as to Offences affecting the administration of justice”, is the chapter under which special provisions have been made to curb offences such as perjury, presenting forged documents in support of defence or prosecution as the case may be and such other offences obstructing the conduct of a fair trial are dealt with.  So the Criminal procedure code has contemplated in strict sense to ensure fairness of trial in every aspect as the same alone will result in real rendering of justice. 

The accused is questioned at the time of framing charges as to whether he pleads guilty or not in summon cases and with the available material in the charge sheet, the court frames specific criminal charges in respect of each of the offences alleged to have been committed by the accused as projected by the prosecution.  However there is a very important stage of hearing the accused before framing charges and a hearing under section 239 of the code of criminal procedure wherein the court can examine the contents of the charge sheet (final report  and its annexure u/s 173 Cr.P.C) hear the prosecution and the counsel for the accused and if no material to sustain a charge against any of the accused exist then the accused may be discharged from the case which amounts to acquittal of the accused from the case.  Only thereafter under section 240 Cr.P.C, the trial court frames charges against the accused within the four corners of which the criminal case has to be proved by the prosecution without any reasonable doubt, of course subject to the presumptions raised in law against the accused under peculiar circumstances on case to case basis more so in cases falling under the category of “trial by circumstantial evidence”.  Once the charges are framed the accused is given an opportunity for cross-examination at length each and every witness presented by the prosecution and also the accused can contest all circumstances cited as an incriminating circumstances put by the prosecution and also the material object and documents produced to connect the accused to the crime.  If there is any ambiguity, in the version of the witness even after the cross examination, the prosecution is allowed to re-examine the witness, to clear such ambiguity.  If fresh incriminating material surfaces in the re-examination then the witness can again be cross-examined by the counsel for the accused.  Thus every possible opportunity is given to the accused to defend him as against the charges framed against him.  If the case of the prosecution fails to establish the guilt of the accused after all its evidences are presented to the court, on a careful assessment done by the counsel for the accused, the accused can very well choose refrain from giving any evidence from the defence side and the trial can be closed without rendering or recording defence evidence upon an endorsement made by the counsel for the accused.  Normally the accused makes his statement in a written form while 313 Cr.P.C statement is being recorded by the trial court where incriminating evidences are put forth in the form of a questionnaire wherein answers and explanations are specifically sought for by the court.  The contents of 313 Cr.P.C Statements itself is considered as acceptable defence evidence.  The accused cannot be subjected to cross-examination on the answers and statements made by the accused to the court under section 313 Cr.P.C.  Therefore, only the accused opting to give defence evidence through his mouth (oral evidence) has to  enter the witness box and such an option leads him to the unavoidable test of cross-examination which can in most cases result in undoing all the benefits of the cross-examination that has accrued to the benefit of the accused in the said case.  Thus giving defence evidence in a criminal case is not compulsory and should be exercised sparingly if unavoidable explanations have to be recorded from the side of the accused to clear any suspicion lingering in the mind of the court so far as the said accused is concerned.  Cases of conspiracy are hard to be proved by the prosecution and at times the circumstances surrounding the conspiracy could be so inter- twined with the facts of the offence that was committed and the persons involved in the commission of the offence and the proximity of the meeting of persons and minds prior to the commission of the offence, which will necessitate the calling of a plausible explanation to convince the mind of the court that a particular accused was not involved in the conspiracy and his presence during the meeting preceding the commission of the offence was a mere chance and the discussions held during that meeting which involved some of the accused and this accused were nothing to do with the offence that was committed later on.  Under such peculiar circumstance, the onus or burden of proving the innocence of the alleged conspirator falls on him and not on the prosecution strictly.  Thus a case of the nature of circumstantial evidence can also be tough and burdensome for the accused as well, at times. Thus a whole lot of factors indigenous to each case may arise to be established by the prosecution and contested by the defence leading to rendering of justice in the said case.  The enormous exposure of the case details and progress of investigation from time to time and the version of witnesses during the investigation stage if discussed elaborately across the spectrum of print and electronic media can become seriously damaging for the prosecution on one hand and there is a possibility of injustice being meted out to the victim at the end of the trial.  Securing conviction for the accused with maximum punishment prescribed in law can only be termed as real justice to the victim of the crime and only then a real sense of fear will penetrate into similar persons thinking of attempting at similar crimes.  Denying bail and putting the accused in custody for a few days or even months and allowing the accused to walk free with the acquittal cannot in any manner be termed as an act of justice rendered to console the victim.  The hype shown in the media during the arrest and pre -charge sheet stage lacks steam and momentum after the conviction or acquittal is recorded by the trial court.  First to report and panel discussion and special programmes on a criminal case can do more harm to that very case than render any benefit to the victim of the said crime.  Most of the reporting in news channels is done with the curiosity of a fiction and crime novel forgetting on all occasion that it is a news report involving a real incident and there are real persons affected by the crime and the investigation and the single focus during these days appear to be a part of the extra-ordinary race to increase the viewership of their respective channel thereby increase revenue and make gains out of somebody’s pains.  Such an attitude by the media is generally termed as trial by media.

TRIAL BY MEDIA

To campaign for a victim and protect the identity of the victim and ensure that the rich and the mighty do not get away scotfree after committing heinous offences is definitely a noble cause for which the media should stand together and there is no second opinion about it.  Reporting news, as it occurs can be restricted to ensure that the streams of justice are kept clear and unhampered if a minimum precaution is taken by all concerned in the print and electronic media. Wide publicity can be given to the name and identity of all the accused involved in such crimes in all sections of media with a specific motive of shaming the person.  Reporting the arrest of such mighty persons will definitely act as a deterrent for sure.  The status of bail application at the trial court and superior court can also be reported to disclose the stand taken by the judiciary on such crimes and such accused during the investigation stage.  Thereafter at least till the trial of the case is over and until the arguments of the prosecution commence there can be self-restraint exhibited by all section of media and the reporting of arguments of the prosecution and the defence can again be subjected to wide publicity and discussion and the judgment can be awaited thereafter.  Constructive criticism and erroneous views of the trial judge can also be allowed to be discussed in the media without accusing the judge personally.  Accusing the judgment critically and accusing the judge personally are two different aspects.  The trial courts judgment is open for test of appeal as laid down in the code of criminal procedure and the verdict of the Supreme Court alone shall bring finality to the matter.  The victims of false case after the verdict attains finality should not be afraid to expose all the officers, authorities however the powerful they may be and also the section of media who engaged themselves in crossing all decent lines of news reporting and ventured into making wrongful gains during the painful days of a person who accumulated fame and built his empire of reputation brick by brick.  Though no amount of compensation will set right the colossal damage caused to the reputation of the person victimised in the false case by put up stock witnesses, fabricated documents, created or purchased material objects and versions of non-existing eye witnesses etc., lined up by the prosecution with the single motive of tarnishing the image of the person subjected to such false case

On the media activism, it is only fair to state that an accused should be exposed and shamed without fail in cases of offences against women.  There is no second opinion about it.  This exposure and insult should warn other accused from attempting to commit such offences.  However, all that is said by the police may not be the gospel truth.  Whether the investigation is motivated by any ulterior purpose by people in power including Ministers and top officials of the police department are matters that cannot be superficially seen as during investigation the depth of the prosecution case is assessed from the oral statements of police officers and the counter statement filed by the public prosecutor in the bail applications which may be far different from the actual case that is to be demonstrated in trial through the final report/charge sheet filed by the very same police.  Therefore it is a necessary that the media exercises self-restrained while carrying such news reporting even if it were to be sensational and sensitive as in the case of celebrities such as ministers, actors and other people occupying positions/status in the glare of the general public.  Fame is difficult to be made and easy to be lost.  Shame if pasted on a person who ultimately succeeds in trial and proves his innocence cannot be justified as the extent of damage caused to the fame of that person becomes irreversible.  Fear of further false cases and fear of further shame in the media may act as a preventive mechanism for such persons not to attempt any legal fight against the wrong doers.  Even though such gross and negligent acts occur to an accused and even if he chooses not to fight for the wrong done to him an injustice is being done by the entire society to an accused.  Selfish gain cannot be the motive for giving wide publicity to a case in which investigation is on-going.  In most of the cases we find less reporting after the trial is conducted, be it a judgment of conviction or a judgment of acquittal.  The force with which the blood of the accused was demanded during the investigation is not seen even if a conviction is recorded by the trial court.  No panel discussion on a judgment of conviction or acquittal is taken up intellectually on merits in any of the media post conviction of any sensational case.  Whether a right to appeal is considered a bigger and important right than a right to face fair trial is the question that lingers in the mind of the author while writing this article.  Therefore public interest such as faith in the judiciary, might not make things right in law, the rich and influential cannot escape the clutches of law etc are not mere statements that need to be projected through media only during the investigation stage and in fact it should be extended even after the judgment and extensively exposed post trial and upon attaining finality of conviction or acquittal.  The media should also be fair in exposing false complaints and officers who indulged in laying a fabricated charge sheet victimizing the innocent persons as accused of various reasons and motives which have absolutely no connection with the accused.

Serious thought of media action in the recent past have been a cause to highlight realities of law as it stands and the expectations of people from the justice delivery institution i.e. the judiciary which includes all courts up to the Hon’ble Supreme court of India. People expect strict punishment and exhibit huge curiosity to know day to-day developments of the cases in which celebrities and popular personalities are arrayed as accused. The recent case of an actor involved in conspiracy with other accused leading to physical abuse and capture of nude videos of another female co-actor was widely reported in all the cross section of print and electronic media.

The news tracking was escalated perhaps to a record high level starting from a telephone call from the police to the actor to come for an enquiry, the participation of the accused actor in police enquiry, the statements of the actor made in public during association meetings of the said industry, the day to-day developments in the police enquiry, the venue of the police enquiry, the status of the actor prior to his arrest being recorded by the investigating officer, the cause for arrest, the movement of the accused from the place of arrest to the residence of the magistrate for obtaining remands orders, the transit of the accused from the residence of the magistrate to sub-jail, the details of the cell and the occupants of the cell and the treatment to the actor in the sub-jail, the details of the bail application and counsel who moved it, the request of the police for police custody and the grant of police custody, consideration of bail application by the magistrate, the denial order and its reasons, appeal of bail plea to the Hon’ble high court its consideration and denial, were all widely reported in different segments of news bulletin and special programs casting aspersions on the said actor and primarily aimed at canvassing a mass legal opinion against the alleged wrong doer who has to be dealt sternly by the Judiciary to instil faith of the general public in the system of law enforcement.  While this aspect of media reporting is understandable and deserves appreciations wholeheartedly from every segment of the society, can there be any justifiable reason

While this aspect of media reporting is understandable and deserves appreciations wholeheartedly from every segment of the society, can there be any justifiable reason in launching attacks on the restaurant run by the said actor, hurling abusive slogans calling the said actor by names and referring to him as rapist by crowding in front of the magistrate’s residence and while being taken from the magistrate’s residence to the sub-jail and organising protests against the said actor when the law is already put into motion and whether the publicity given to such protest by demonstrators during the unfolding of judicial proceedings is at all necessary for the media?  Television channels taking footages of jail scenes from several films that the accused actor had been cast as a lead hero and telecasting specially designed programs to connect his present position as an accused in sub jail on the basis of an on-going criminal investigation is in any way ethical to media practice and permissible to be exploited for commercial gains out of another man’s pain, is a valid question that needs to be reflected and thought over and hopefully avoided in future cases by all sects of visual media in the country. 

The private right of an accused is a matter of concern for him alone.  But the witch hunting attitude primarily intended to get TRP rises and for making commercial gains by the spectrum of visual media is a grave concern touching upon the ethics and work culture of a responsible media which is of course a matter for serious thinking in the interest of literate and civil community.  Hence these thoughts and a concern to strike the right balance and avoidance of unnecessary and exaggerated visual presentation touching upon the borders of sleaziness leading to undoubted irreparable damage to one’s person during the present even before completion of investigation within the established framework of law and what is worse is the huge punishment of effectively and practically ostracizing the person from the entire community, linguistic order, regional territory and for sure from the profession of practice he was involved in and all these much before the commencement and conduct of the criminal trial established in law.  Whether this aggression and escalation in all forms of media which has irreversible repercussion on the person accused of a crime prior to his conviction is an allowable media practice? The trial of media as it gets demonstrated over various television channels and in the larger section of the print media both physical print media and the virtual print media like internet etc normally involves panel discussion comprising of experts and people of various standing including personalities from the industry, region and language of which the accused and the victim belonged to and articles written by various personalities airing their opinions oral and written with respect to various aspects and the impacts the said offence has caused and the way forward for the accused and the victim etc.  However the discussions cannot be curtailed in form and substance to be confined to the offences alleged, facts relating to the case only, earlier incidents of similar cases and so on and so forth.  The speakers participating in such panel discussions are also seen to stray away from the real topic of discussion and transgress into personal domain and private life and the past conduct and the behaviour in public on earlier occasion by the accused or the victim etc which has no relevance absolutely to the topic that is taken up mostly during the prime time for panel discussion in such television channels.  Killing a person’s repute which was hard earned by that person and zeal exhibited by the Government and other investigating agencies to launch a multi-pronged investigation into the wealth, properties, business of the accused person who is accused of a crime related to an offence against a woman and that too in which he is alleged as a conspirator based on the statements given by co-accused in an already charge sheeted criminal case are matters of serious concern and whether the State is also trying to encash on an image building exercise by riding on the celebrity status of the alleged conspirator being a lead actor of that particular State for more than a decade. 

Discussions entering into the divorce of the actor with his ex-wife and his re-marriage to another co-actor and the rumours that were part of the industry prior to the accused actor first marriage and the unpleasant conversations exchanged by the accused actor with other co-actors during certain stage shows and shooting locations are all being irresponsibly circulated in all the sections of the media taking advantage of a person being currently incarcerated pending investigation awaiting criminal trial is far too an acceptable practice of any standards that is being adopted currently in a section of media.  Even a terrorist is entitled for a fair trial.  A fair trial is the utmost sanctified portion of the judiciary. Stricter punishment cannot be awarded compromising the necessity of a sanctified criminal trial. 

All these aspects are yet to happen in the case of the accused actor and to pile up all possible investigation from land encroachment, purchase of properties, relationship with other actors, political affiliations and interest etc are definitely intended at demoralising the defence of the accused which is a valuable constitutional right of any accused person within this scope and ambit of the statutes enacted as laws of our country. Wide publicity of political murders and the statistics of such murders while one party was in power and while the present party is in power and the debates lingering upon the justification of taking away a person’s life are also happening day to day panel discussions and special interviews of political leaders and people in power. 

The general public are not aware of the miniscule percentage of political leaders being killed and the wives becoming widows and their children becoming orphans on a comparative scale of the followers of the party being killed in retaliatory actions against each other.  The assassination of the political leader cannot be equated to such political killings at the grass root level.  Ego clashes between Governor and the Chief Minister in more than one State of our Country is also being widely reported in the media. 

Thus, the question of censoring news as censor of film media is in place can also be thought of prior to which formulation of a policy and rules to regulate the content and practice of ethical reporting is established in our country.  Whether the media can be gagged or restrained by the higher judiciary and whether it is right time to consider framing of guidelines for the ethical conduct of the media propagation are valid issues that need to be taken up by authorities such as press council of India as well as the information and broadcasting ministry of our country and we can hope and expect for such a regulations to come in the near future which alone  will act as a balance between the right of an accused to defend himself fairly and the right of the media to report heinous and grave crimes fearlessly irrespective of the wealth, influence and power of the accused. 

 

M.L.Joseph 
on 08 August 2017
Published in Criminal Law
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