24/06/2023
Whether the court can reject bail to accused on the ground that he is not cooperating with the police investigation?
That the I.O.'s allegation that the applicant was not 'cooperating' in the investigation also needs to be put in legal perspective. Is the I.O. saying that an accused would be taken to be 'not cooperating' in the investigation till he furnishes all material that the I.O. thinks is necessary to nail the accused? We must remember that under our system of criminal jurisprudence, an accused has a right of silence, apart from a fundamental right against self-incrimination under Article 20(3) of the Constitution. What would happen if an accused says that no other material is available, whereas the I.O. thinks or says that other material exists and must be delivered-up before the accused is granted bail? In such case, would the court be persuaded to keep an accused in judicial custody endlessly, till this impasse is resolved? Consider another scenario: what if an accused wants to produce some exculpatory evidence in his defence during trial; and fears, that if the exculpatory material is shared with the I.O. during investigation, the I.O. may either not produce such material before the court or destroy it, so that it is not available to the accused for his defence? While in theory, it is the duty of the I.O. to collect all evidence, whether inculpatory or exculpatory, during investigation and to place it before the court, it would be naive for a court to assume that this theory is put into practice by investigating agencies. It is also well within the rights of an accused to bring-out defence evidence only during trial. This is one of the reasons why, in a criminal trial, an accused is not required to furnish a written statement of his defence nor to file any affidavit disclosing the evidence he proposes to adduce during trial. While in a civil trial, it is impermissible to spring a surprise on an opposing party, there is no such bar on an accused in a criminal trial. The I.O. therefore cannot be heard to say that till the applicant hands-over to him every shred of evidence, which the I.O. think exists, the applicant should be kept in prison as an undertrial.
