Judgment:
J. P. Desai, J.
1-24. XX XX XX.
25. The discussion made above will go to show that the circumstances which are alleged against these two accused do not make out even a prima facie case for drawing an inference against these two opponents-accused that they were party to any such conspiracy as a result of which Jinda could escape. On this material, it can be said, as rightly observed by the learned Judge below, that there are reasonable grounds to believe that these two opponents-accused have not committed any such offence or offences alleged against them.
26. Sub-section (5) of Section 17 of the Act which is reproduced earlier shows that the provisions of Sub-section (5) can be pressed into service when the person who is sought to be released on bail is accused of an offence punishable under the Act or any rule made thereunder. This shows that if there is an accusation against a person that he has committed an offence punishable under the Act or any rule made thereunder, then the provisions of Sub-section (5) of Section 17 come into play. It cannot be said with any stretch of imagination that simply because the prosecution makes an accusation against a person that he has committed an offence under Act or any rule made thereunder, the Court must consider the question whether there are reasonable grounds to believe that he is not guilty of such offence. The accusation, in my opinion, should be well-founded. If the material collected during the investigation shows that the accusation is well-founded, then only the Court has to consider the question whether there are reasonable grounds for believing that the person against whom such an accusation is made is not guilty of (he alleged offence. It is not as if the accused has to prove his innocence at the stage of bail, just as the prosecution has nol to prove the guilt of Ihe accused at the stage , of bail. The prosecution Jias, on the one hand, toshow lhal (he accusation against I he person concerned is well-founded and thai way there is a prima facie case against him and only then the Court has to see whether from the material on record it can be said that there are reasonable grounds for believing that ihe accused are not guilty. But for the provisions of Sub-section (5) of Section 17 of the Act, a Court will be free to release an accused on bail even if there are reasonable grounds to believe that the accused has committed an offence. But when Sub-section (5) of Section 17 of the Act can be pressed into service, the Court has to take into consideration, the material which is produced before the Court and grant bail only if the Court comes on the conclusion thai there are reasonable grounds for believing thai the accused is nol guilty of the alleged offence.
27-29. XX XX XX.
30. In the case of M. Govindankutty v. State of Kerala AIR 1964 Ker 221 : 1964(2) Cri LJ 158, the provisions of Rule 155 of the Defence of India Rules, 1962, which are pari materia with the provisions of Sub-section (5) of Section 17 of the Act, came up for consideration before the Kerala High Court. It was contended before the Kerala High Court that (he said Rule was quite unreasonable and repugnant to the elementary notions of Criminal Jurisprudence that a person is presumed to be innocent, until it is proved that he is guilty. After referring to that contention, the learned single Judge of the Kerala High Court observed as follows:
neither the Act nor the rules indicate any attempt to depart from these well-settled principles. R. 155 merely indicates that where a person is accused of an offence under the Rule, the Courl may nol liberate him on bail pending the trial except when it was reasonable grounds (sic) to believe that he is innocent.
These observations show that the presumption of innocence is still there and, therefore, while considering the question whether the accused should be released on bail in such circumstances, the presumption of innocence cannot be ignored. It cannot be said that an accused should not be presumed to be innocent simply because he is accused of an offence punishabe under this Act. The Court has to first examine the material collected during the investigation and find out whether the accusation is well-founded and it is only then that the further questions arises. It cannot be said that simple because the prosecution alleges that an accused has committed an offence punishable under the Act, the Court has to presume that there is a prima facie case against him. The question whether the material' indicates the involvement of the accused in an offence has to be considered and only then the further questions arise. In other words, the Court has to look to the material as a whole and see whether there are reasonable grounds for believing that the accused are not guilty of the alleged offence.
31-37. xx xx xx xx