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2011LegalEye(S.C.)1 SUPREME COURT OF INDIA Before :- Markandey Kathu and Gyan Sudha Misra, JJ. Criminal Appeal No.

546 of 2011. D/d. 24.02.2011. Md. Sukur Ali - Appellant Versus State of Assam - Respondent For the Appearing Parties :- Fail S. Nariman, Sr. Advocate., Azim H. Laskar, Bekash Kar Gupta, Abhijit Sengupta, Avijit Roy, Ms. Vartika Sahay (for M/S. Corporate Law Group), Advocates. HINT 1. Article 21 Constitution of India - Criminal trial Lawyers in criminal courts are necessities, not luxuries. Cases Referred : 1. A.S. Mohammed Rafi v. State of Tamil Nadu, 2011(1) R.C.R.(Criminal) 617 : 2011(1) R.C.R.(Civil) 812 : 2011(1) S.C.T. 708 : 2011(1) R.A.J. 289 : AIR 2011 Supreme Court 308. 2. Bapu Limbaji Kamble v. State of Maharashtra, (2005) 11 SC 412. 3. Brewer v. William, 430 US 387 (1977). 4. Gideon v. Wainwright, 372 US 335 (1963). 5. Man Singh v. State of Madhya Pradesh, 2008(4) RCR (Criminal) 551 : 2008(5) R.A.J. 518 : (2008) 9 SCC 542. 6. Maneka Gandhi v. Union of India, AIR 1978 SC 597. 7. Powell v. Alabama, 287 US 45 (1932). ORDER 1. Leave granted. Heard learned counsel for the parties. We have also heard Mr. Fali S. Nariman, learned senior counsel, who very kindly consented to assist us as Amicus Curiae in this case in which an important constitutional and legal question is involved. 2. That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ?

3. In the present case, it appears that Criminal Appeal 137 of 2003 was decided by the Gauhati High Court on 01.06.2010 in the absence of the counsel for the appellant- accused and the conviction was upheld. 4. Mr. Nariman, learned senior counsel, pointed out that earlier the counsel for the appellant-accused was Mr. A.S. Choudhury but the appellant changed his counsel and appointed Mr. B. Sinha in the year 2007 as his new counsel, and this fact is corroborated by affidavit. Unfortunately, the name of Mr. Sinha as counsel for the appellant was not shown in the cause list when the case was listed and the name of the former counsel Mr. Choudhury was shown. In these circumstances, Mr. Sinha who was engaged by the appellant as his new counsel did not appear. 5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights. 6. In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell v. Alabama, 287 US 45 (1932), in which it was observed:"What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense". 7. The above decision of the US Supreme Court was cited with approval by this Court in A.S. Mohammed Rafi v. State of Tamil Nadu & Ors., 2011(1) R.C.R.(Criminal) 617 : 2011(1) R.C.R.(Civil) 812 : 2011(1) S.C.T. 708 : 2011(1) R.A.J. 289 : AIR 2011 Supreme Court 308, vide para 24.

8. A similar view which we are taking here was also taken by this Court in Man Singh & Anr. v. State of Madhya Pradesh, 2008(4) R.C.R.(Criminal) 551 : 2008(5) R.A.J. 518 : (2008) 9 SCC 542, and in Bapu Limbaji Kamble v. State of Maharashtra, (2005) 11 SC 412. 9. In this connection we may also refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) are as under : "Article 21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law". Article 22(1). Protection against arrest and detention in certain cases. - (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." 10. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution. 11. The right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e,g, Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed. 12. Apart from the above, we agree with the eminent jurist Seervai who has said in his "Constitutional Law of India', Third Edition, Vol. I, Pg. 857:"The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh's case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings." 13. We are fully in agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula `Na vakeel, na daleel, na appeal' (No lawyer,

no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers. 14. In this connection, we may also refer to the ringing speech of Rt. Hon. Srinivasa Sastri, speaking in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act prohibited counsels to appear for the accused in cases under the Act):"When Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public meeting, then becomes a suspect. I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery... "Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land." 15-16. In Gideon v. Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:"Lawyers in criminal courts are necessities, not luxuries" In Brewer v. William, 430 US 387 (1977) Mr Justice Stewart delivering the opinion of the US Supreme Court observed;"The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all." For the reasons stated above, we allow this Appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side. 17. The case shall be heard by a Bench of Judges other than those who passed the impugned judgment. 18. The Order dated 24.01.2011 passed by this Court granting bail to the appellant shall continue till the appeal is decided by the High Court.

19. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. 20. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his nonappearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae. REPORTED IN 2011(2) R.C.R.(Criminal) 121: 2011 AIR (SC) (Cri) 613

-----------------------------------------------------------------------------------------------------------------------------------------2011LegalEye(S.C.)5 SUPREME COURT OF INDIA Before :- Markandey Katju and Gyan Sudha Misra, JJ. Criminal Appeal No. 135 of 2010. D/d. 14.2.2011. Budhadev Karmaskar - Appellant Versus State of West Bengal - Respondents For the Appellant :- Mr. Lajja Ram, Advocate. For the Respondent :- Mr. T.C. Sharma and Ms. Neelam Sharma, Advocates. HINT 1. Illicit Traffic (Prevention) Act, 1956, Sections 3, 4, 5 and 15 - Constitution of India, Article 21 - Sex workers entitled to a life of dignity . HINT 2.Constitution of India, Article 21 Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. ORDER 1. Heard learned counsel for the appellant. This Appeal has been filed against the impugned judgment and order dated 25th July, 2007 passed by the High Court of Calcutta in C.R.A. No. 487 of 2004.

2. The facts have been set out in the impugned judgment and hence we are not repeating the same here except wherever necessary. 3. This is a case of brutal murder of a sex worker. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity in view of Article 21 of the Constitution. 4. In the novels and stories of the great Bengali Writer Sharat Chand Chattopadhyaya, many prostitutes have been shown to be women of very high character, e.g., Rajyalakshmi in `Shrikant', Chandramukhi in 'Devdas' etc. The plight of prostitutes has been depicted by the great Urdu poet Sahil Ludhianvi in his poem `Chakle' which has been sung in the Hindi film Pyasa "Jineh Naaz Hai Hind Per wo kahan hain" (simplified version of the verse 'Sana Khwan- e- taqdees-e-Mashrik Kahan Hain'). 5. We may also refer to the character Sonya Marmelodov in Dostoyevsky's famous novel 'Crime and Punishment'. Sonya is depicted as a girl who sacrifices her body to earn some bread for her impoverished family. 6. Reference may also be made to Amrapali, who was a contemporary of Lord Buddha. 7. In the present case, the incident happened on 17th September, 1999 at about 9.15 p.m. The deceased Chayay Rani Pal alias Buri was living in a red light area and was a resident of Room No. 8 of Premises No. 19, Jogen Dutta Lane in Calcutta. She was evidently a sex worker. The appellant Budhadev kicked her with fists and legs, and she fell down on the floor. The appellant then caught her by her hair and banged her head against the floor and the wall several times which left the victim bleeding from her ear, nose and head. The incident was witnessed by four persons, Pw2-Abida, PW4- Maya, PW7-Asha and PW8Parvati. 8. PW2-Abida has deposed that she saw the appellant- accused catching the victim by her hair and banging her head against the wall. The victim was profusely bleeding through her nose and mouth. On seeing this, Abida started shouting and then the accused pushed her and went down and fled away. PW8- Parvati saw the victim being mercilessly beaten by the accused-appellant, and the same is the evidence of PW7-Asha. In the post mortem, as many as 11 injuries on the body of the victim were found, eight of which were on various parts of the face and forehead. 9. The police was informed about the incident over the telephone as is evident from the testimony of PW-2 Abida. After the police arrived on the spot, sample of the blood spilled from the body of the victim was collected and photographs taken. The victim was brought by Asha Khatoon and others to the hospital where she was found 'dead on arrival'. Blood was oozing out from her ear and nostril. There was swelling on the left eyeball and left eyebrow. Thus, the medical evidence corroborates the ocular testimony. 10. PW10-Dr. Amitava Das, the Medical Officer who held the post mortem examination of the dead body of deceased Chhaya Rani Pal found the following injuries on her person : 1) Abrasion 1" x = " over the nose just below the nasal bridge.

2) Abrasion = " x = " over left side forehead = "above left eyebrow 3" left to midline. 3) Abrasion = " x = " over left side of forehead just over the left eye brow 2" left mid line. 4) Bruise 2" x 1" over left upper eye lid. 5) Bruise 2" x 1" over anterior aspect of mid part of nose. 6) Abrasion = " x " over right side of forehead 1" above right eye brow 2" right to mid line. 7) Abrasion 2" x 1" over right side of face just below the right eye and just right to outer canthus of right eye. 8) Lacerated wound = " x " x scalp over left partial region 4 = "left to anterior mid line and 2" below left parietal eminence. 9) Abrasion 3" x = " over posteriorateral aspect of right forehead 1" below right elbow. 10) Abrasion 1" x = " over anterior medial aspect of lower part of right forearm 1" above right wrist. 11) Abrasion 4" x 3" over upper part of posterior aspect of right thigh 7" above right knee joint. 11. On dissection, the Doctor found the following injuries : 1) Haematoma 3 = " x 2" in the scalp tissue over right frontal region. 2) Haematoma 3 = " x 2" in the scalp tissue over left frontal region. 3) Haematoma 3 = " x = " in the scalp tissue over left partial region. 4) Fissured fracture 3" long more or loss longitudinal over left parietal temporal bone. 5) Haematoma 2" x 1" in the scalp tissue over right parietal region. 6) Subdural hemorrhage present involving the right parietal and temporal lobe. 7) Lacerated wound = " (half) x " x substance over right parietal lobe of brain substance. The abrasions were non-scabbed and red in colour. The bruises were dark red in colour. The margins of the lacerated wounds were irregular and red in colour. All the injuries showed signs of vital reactions. No other injury except those described could be detected even on careful dissection and examination. 12. PW10 Dr. Amitava Das, Medical Officer of Mauza Burdwan Medical College, opined that the death was due to the effect of the injuries as noted anti- mortem in nature; that all the injuries as noted in the post mortem examination report might be caused if a person pushed against the wall and it may be homicidal in nature." 13. The injuries above-mentioned show the brutality of the crime. The head of the deceased was battered again and again in a hideous and barbaric manner. 14. The trial Court has rightly convicted the appellant under Section 302 IPC and sentenced him to life imprisonment and the High Court has not committed any error in upholding the conviction and sentence imposed by the trial Court. 15. We find no reason to disbelieve the testimony of the eye witnesses in this case, namely, PW-2, PW-7 and PW-8 which corroborates the medical evidence. The appellant-accused has committed murder in a brutal manner of a helpless women and deserves no sympathy from this Court.

15A. For the reasons given above, this appeal is dismissed. 16. Although we have dismissed this Appeal, we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. 17. As already observed by us, a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. 18. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed herself. 19. We propose to have the response of the Centre and the States in this regard and hence the case shall be listed before us again on 04.05.2011 to be taken up as first case on which date the first compliance report indicating therein the first steps taken by the Central and the State Governments in this regard shall be submitted. 20. Issue notice to the Central Government and all the State Governments which will also file responses by the date fixed for hearing.

REPORTED IN ALSO 2011(1) R.C.R.(Criminal) 897: 2011 AIR (SC) (Cri) 575

2011 Legal Eye(S.C.) 10


SUPREME COURT OF INDIA Before :- Markandey Katju and Gyan Sudha Misra, JJ. Criminal Appeal No. 3 of 2011 (Arising out of Special Leave Petition (Crl.) No. 7999 of 2010). D/d. 3.1.2011. State of Kerala - Appellant

Versus Raneef - Respondent For the Appellant :- Mr. L. Nageswar Rao, Sr, Adv., Mr. G. Prakash, Advocate Ms. Beena Prakash, Advocates. For the Respondent :- Mr. U.U. Lalit, Sr. Adv. Mr. E.M.S. Anam, Adv. Mr. K.P. Mohamad Shareef, Advocates. HINT 1. Constitution of India, Article 21 - Criminal Procedure Code, Section 439 In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody ? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. Cases Referred : 1. Redaul Husain Khan v. National Investigation Agency, 2010(1) SCC 521. 2. State of Maharashtra v. Dhanendra Shriram Bhurle, 2010(4) R.C.R.(Criminal) 441 : 2009(11) SCC 541. 3. Scales v. United States, 367 U.S. 203. 4. Elfbrandt v. Russell, 384 US 17-19 (1966). 5. Joint Anti-Fascist Refugee Committee v. McGrath, 341 US 123 at 174 (1951). JUDGMENT Markandey Katju, J. - Leave granted. 2. Heard learned counsel for the parties. 3. The appellant has filed this appeal challenging the impugned order of the Kerala High Court dated 17.9.2010 granting bail to the respondent, Dr. Raneef, who is a medical practitioner (dentist) in Ernakulam district in Kerala, and is accused in crime No. 704 of 2010 of P.S. Muvattupuzha for offences under various provisions of the I.P.C., the Explosive Substances Act, and the Unlawful Activities (Prevention) Act. 4. The facts of the case are that on 4.7.2010 soon after 8 a.m. seven assailants came in a Maruti Van and assaulted Prof. T.J. Jacob of Newman College, Thodupuzha and chopped off his right palm from the vicinity of his house when he was returning home after Sunday mass. The role attributed to the respondent is that he treated one of the injured assailants (who was injured when Prof. Jacob's son tried to protect his father) by suturing (stitching)

his wound on the back after applying local anesthesia at a place 45 kms. away from the place of the incident. 5. The alleged motive for attacking Prof. Jacob was that he incorporated a question for the internal examination of B.Com. paper criticizing Prophet Mohammed and Islam. 6. The prosecution case is that the respondent gave medical aid to one of the wounded accused in pursuance of a previous plan that if and when any of the assailants got injured in the attack on Prof. Jacob then immediate medical treatment would be given by the respondent to the injured. The respondent stitched the back of an assailant, which is not the job of a dentist. The respondent, along with the other accused is a member of the Popular Front of India, a Muslim organization, and was head of its medical committee. Certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad' were allegedly seized from his house and car. 7. The prosecution has placed reliance on the proviso to Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 which states that the accused shall not be released on bail if the Court, on perusal of the case diary or the report under Section 173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. 8. On the other hand, the case of the respondent as disclosed in the counter affidavit filed before us is that even according to the prosecution case the respondent was not one of the assailants, and he is not named in the FIR. In para 13 of the counter affidavit the respondent has stated that the attack on Prof. Jacob is a crime which is to be condemned. However, as a pretext to the investigation the police had lashed out a rein of terror on innocent people of the minority community, people who are totally innocent or even had no knowledge of the crime have been falsely implicated. 54 persons have been made accused in the crime. Many residential houses, mosques and offices were raided and searched, and even minor children and women were cruelly tortured both physically and mentally. Holy books and other religious books were thrown out, seized and taken away and bundled in police stations. War like atmosphere was created in mosques, daily prayers were disrupted and men illegally detained, and physically tortured in custody and false cases booked against innocents. 9. It is further alleged in the counter affidavit that the Popular Front of India (PFI) or the Social Democratic Party of India (SDPI) are not militant or terrorist organizations. There is no history of crimes against the party or its workers. They are not banned organizations. The SDPI is a political party recognized by the Election Commission and the PFI is registered under the Societies Registration Act. 10. The respondent has alleged that he is a dental surgeon hailing from a respectable family in Aluva. His father Late Dr. Abdul Karim was a doctor loved and respected by all, who died as a Civil Surgeon while working in the Government Hospital, Perumbaroor. In 2001 the respondent started Al Ameen Multi-Speciality Dental Hospital in Aluva. Five other doctors including the respondent's wife, who is also a dental surgeon, are working in the said hospital. The respondent has a son aged 9 years and daughter aged 5 years. He claims that he has a very good reputation and is loved by all due to the services rendered by him to the poor and needy. The respondent's elder sister is a post graduate in zoology, and his younger sister is a law graduate. The book entitled `Jihad' said to have been found in his house was a Malayalam translation of a book written in Urdu in 1927 by a well known and

respected religious scholar, Maulana Sayyid Abul Ala Mandoodi and has been in circulation for 83 years, and is available in many book shops. 11. The respondent has alleged that he has been falsely implicated only because he medically treated one of the alleged assailants. 12. At this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations : (1) We are presently only considering the bail matter and are not deciding whether the respondent is guilty or not. Evidence has yet to be led and the trial yet to commence. Hence the prosecution is yet to establish by proof beyond reasonable doubt that the respondent was part of a conspiracy which led to the attack on Prof. Jacob. (2) The case against the respondent is very different from that against the alleged assailants. There is no allegation that the respondent was one of the assailants. We are of the opinion that at this stage there is no prima facie proof that the respondent was involved in the crime. Hence the proviso to Section 43D(5) has not been violated. The respondent, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defend an accused, so also it is the duty of a doctor to heal. Even a dentist can apply stitches in an emergency. Prima facie we are of the opinion that the only offence that can be leveled against the respondent is that under Section 202 I.P.C., that is, of omitting to give information of the crime to the police, and this offence has also to be proved beyond reasonable doubt. Section 202 is a bailable offence. (3) As regards the allegation that the respondent belongs to the PFI, it is true that it has been held in Redaul Husain Khan v. National Investigation Agency, 2010(1) SCC 521 that merely because an organization has not been declared as an `unlawful association' it cannot be said that the said organization could not have indulged in terrorist activities. However, in our opinion the said decision is distinguishable as in that case the accused was sending money to an extremist organization for purchasing arms and ammunition. That is not the allegation in the present case. The decision in State of Maharashtra v. Dhanendra Shriram Bhurle 2010(4) R.C.R.(Criminal) 441 : 2009(11) SCC 541 is also distinguishable because good reasons have been given in the present case by the High Court for granting bail to the respondent. In the present case there is no evidence as yet to prove that the P.F.I. is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty. In Scales v. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the membership clause in the McCarran Act, 1950 distinguished between active `knowing' membership and passive, merely nominal membership in a subversive organization, and observed : "The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence." In Elfbrandt v. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed :

"Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here." In Joint Anti-Fascist Refugee Committee v. McGrath 341 US 123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed : "In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within." We respectfully agree with the above decisions of the U.S. Supreme Court, and are of the opinion that they apply in our country too. We are living in a democracy, and the above observations apply to all democracies. (4) In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody ? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. 13. In the present case the respondent has already spent 66 days in custody (as stated in paragraph 2 of his counter affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel `A Tale of Two Cities', who forgot his profession and even his name in the Bastille. 14. With the above observations, this appeal is dismissed. Appeal dismissed. REPORTED IN ALSO 2011(1) R.C.R.(Criminal) 381 : 2011(1) R.A.J. 116 : 2011(1) SCC 784 : 2011 AIR (SC) 340 : 2011 CriLJ 982 : 2011(1) Air Kar R 838 : 2011(1) KLT 242