Personal liberty of accused or convict is fundamental: Kerala HC

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Personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law, the Kerala High Court said while granting bail to three forest officials, facing charges of custodial torture of an accused in the Idamalayar elephant poaching case.

Justice K Babu, while granting bail to an Indian Forest Service (IFS) couple and a forest department officer Vijayananthan, said the issue of bail is one of liberty, justice and public safety which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.

The case was registered by the police against the officials in 2016, after an accused in an elephant poaching case filed a complaint that he suffered custodial torture.

"After all, the object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused will stand his trial when called upon," the court said in its order recently.

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The court noted that the case was registered as per the directions of the Human Rights Commission, after the accused told a doctor that he was assaulted by forest officials while he was in their custody.
The counsel for the officers pointed out that accused in the poaching case did not mention the torture before the magistrate nor the doctor who had examined him initially.

The officers submitted that the accused was attempting to derail the case.

"The materials made available lead this court to the conclusion that the petitioners (officers) could establish a prima facie case for getting the benefits contained in section 438 of the CrPC," the court said.

Section 438 of the Code of Criminal Procedure (CrPC) deals with direction for grant of bail to person apprehending arrest.

It said that the principle that bail is the rule and jail is the exception was recognised in many judicial pronouncements.

"The petitioners (officers) shall be released on bail, in the event of their arrest, on their executing bond for Rs 1,00,000.. each with two solvent sureties each for the like sum..," the court said.

The court also directed the officers to appear before the investigating officer as and when required and warned them not to influence the witnesses nor to tamper with the evidence.

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