‘Lack of courage’: Supreme Court slams lower courts’ reluctance in granting bail

As per the prosecution, Kazmi alias Mohd Shad allegedly forcibly kept a mentally challenged minor boy at a madrasa and converted him into a Muslim.

He was booked under the relevant sections of the IPC and the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021.

In his petition, Kazmi claimed that the child was abandoned by his parents on the streets and that he had given him shelter on humanitarian grounds.

While granting him bail, the SC said that “having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that the high court should have exercised its discretion by granting bail to the petitioner.”

“There was no good reason for the high court to decline bail. The offence alleged is not that serious or grave like murder, dacoity, rape etc,” the top court said.

The court said it was “conscious of the fact that grant of bail is a matter of discretion,” but that it has to be “exercised judicially keeping in mind the well-settled principles of grant of bail.”

“Discretion does not mean that the judge on his own whims and fancy declines bail saying conversion is something very serious. The petitioner is going to be put to trial and ultimately if the prosecution succeeds in establishing its case, he would be punished,” it said.

“At times when the high court declines bail in the matters of the present type, it gives an impression that altogether different considerations weighed with the presiding officer ignoring the well-settled principles of grant of bail,” it added.

Saying that they “fail to understand what harm would have befallen on the prosecution if the petitioner would have been released on bail subject to appropriate terms and conditions,” the SC emphasised that the matter “should not have reached up to the Supreme Court.”

“The trial court itself should have been courageous enough to exercise its discretion and release the petitioner on bail,” it said.

The bench said that “every year so many conferences, seminars, workshops etc. are held to make the trial judges understand how to exercise their discretion while considering a bail application as if the trial judges do not know the scope of Section 439 of the CrPC or Section 483 of the BNSS.”

It further said, “In one of the matters, we have taken the view that ordinarily once the trial commences, the court should be loath in releasing the accused on bail, but it all depends on the nature of the crime. Had it been a case of murder or any other serious offence we would have declined.”

It, however, clarified that “the guilt or the innocence of the accused shall be determined on the strength of the substantive evidence that may come on record and without being influenced in any manner by any of the observations made by this court.”