The Supreme Court has noted that undue delay in the trial of the accused infringes his fundamental rights to liberty, fair trial and dignity under articles 9, 10A and 14 of the constitution, if the delay cannot be attributed to him.
The court also held that Section 5(6) of the Prevention of Corruption Act, 1947 did not curtail high court jurisdiction in bail matters.
"Section 5(6) of the Ordinance is binding on the Special Court and it is not so on a High Court which fashions its jurisdiction on the basis of the enforcement of the fundamental rights under the Constitution,” a seven-page judgment authored by Justice Syed Mansoor Ali Shah stated while granting bail to an accused involved in the offence in respect of banks.
Section 5(6) of the Ordinance says that an accused person “shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released”.
A division bench of the apex court led by Justice Mansoor heard the matter.
The judgment said that a high court also enjoyed the constitutional jurisdiction under Article 199(1)(c) of the Constitution for the enforcement of fundamental rights. "This constitutional jurisdiction of High Courts cannot be abridged by any sub-constitutional legislation," it added.
The court also said that a high court while hearing a bail petition under Section 497/498 CrPC, other than possessing inherent jurisdiction under Section 561-A CrPC, also enjoys its constitutional jurisdiction as a guardian of the fundamental rights of the accused.
"This protective constitutional jurisdiction of the High Courts cannot be circumscribed by any sub-constitutional legislation, including Section 5(6) of the Ordinance. If a High Court while hearing a bail petition is of the view that the facts and circumstances of the case offend and impair the fundamental rights of the accused, it can grant bail in exercise of its constitutional jurisdiction without being limited by the legislation that regulates the grant of bail in the offence.
"If a High Court observes that the conclusion of the trial has been unduly delayed for no fault of the accused, thereby depriving the accused of his fundamental rights to liberty, fair trial and due process, it may, rather should, interfere to enforce these fundamental rights of the accused.
"In order to assess the reasonable time for the conclusion of the trial, the High Court may be guided by, and structure its discretion on the basis of, the statutory timeframe provided in the third proviso to Section 497(1) CrPC."
The court also noted that under Clause (a) of the third proviso to Section 497(1) CrPC, an accused is entitled to bail if there is a delay in the conclusion of the trial, for no fault of the accused, for a period exceeding one year, in cases of offences not punishable with death.
The court also referred to its earlier judgment wherein it was held that delay in the conclusion of a criminal trial is antithetic to the very concept of a fair trial and due process guaranteed by Article 10A of the Constitution.
"The right to a fair trial is a cardinal requirement of the rule of law. If an accused cannot be tried fairly for an offence, he should not be tried for it at all. Conclusion of trial within a reasonable time is an essential component of the right to a fair trial.
"The prolonged pre-trial detention of the accused also defies the presumption of innocence, another essential element of the right to a fair trial, for an accused is presumed innocent until he is proven guilty by proof beyond reasonable doubt.
"Even before the addition of Article 10A in the Constitution, the right to a fair trial and due process was well-entrenched in our jurisprudence and considered to be a part of the right of access to justice enshrined in the constitutional right to be dealt with in accordance with law guaranteed by Article 4 and the fundamental right to life and liberty guaranteed by Article 9 of the Constitution".
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