Judgment 1. Petition for bail in Crime No.1 of 2013 for offences under Sections 363 r/w. 34 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 r/w. 34 IPC. 2. Petitioner is A1 in S.C.No.2 of 2014. 3. He is being prosecuted for said offences before the learned Special Judge under POCSO Act, Puduchery/Principal Sessions Judge, Puduchery. 4. Trial commenced. Prosecution produced its witnesses on 16.12.2014, the case came up for recording further prosecution evidence. The accused was on bail. 5. On the said date, while P.W.1 was in the witness box, during her chief examination she deposed that the petitioner had threatened her to withdraw the case. 6. Under the circumstances, on 18.12.2014, the learned Sessions Judge passed the following docket order: “18.12.2014: A1 and A2 Present. LW14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 present. A1 represented that he wants to engage some other counsel. He does not want to continue the case with the present counsel. PW1 to PW9 examined. All the other witnesses are present today. At this stage even without prior intimation the present counsel who is representing for the accused not present, no representation. A1 alone stated that he wants to engage some other counsel and prayed time. Already PW1 during her chief examination, she has deposed that A1 threatened her to withdraw the case. Under the said circumstances, if the case is adjourned and A1 is allowed to be free, it is possible to tamper the witnesses and also protract the trial. Under the said circumstances, in the interest of justice, and also in order to safe guard the victim, I am inclined to remand the accused No.1 into Judicial Custody. The same is submitted to Hon’ble High Court. Call on 23.12.2014 for engaging counsel.” 7. Then onwards A1 became a jail accused. 8. Now A1 seeks bail. 9. The learned counsel for the petitioner submit that unceremoniously petitioner’s liberty has been curtailed. He was not even given an opportunity to explain his point of view. He is in jail from 18.12.2014. 10. The learned counsel, for the petitioner further submitted that in passing the impugned order, the learned Sessions Judge has not followed any proper procedure. There is violation of procedure. 11. The learned Government Advocate (Puduchery) submitted that the petitioner had misused his liberty, criminally intimidated P.W.1 to withdraw the case. He is in jail from 18.12.2014. 10. The learned counsel, for the petitioner further submitted that in passing the impugned order, the learned Sessions Judge has not followed any proper procedure. There is violation of procedure. 11. The learned Government Advocate (Puduchery) submitted that the petitioner had misused his liberty, criminally intimidated P.W.1 to withdraw the case. 12. I have anxiously considered the rival submissions. 13. Arrest is anti-thesis of civil liberty. It is jail vs. bail. The word ‘bail’ has not been defined in the Code of Criminal Procedure, 1973. In general terms, ‘bail’, means send him away, release him, in legal parlance, ‘bail’ means an assurance of return to the court coming from a person in custody to the effect that the will make himself available and participate in the judicial process. 14. Chapter XXXIII of the Code of Criminal Procedure, 1973 deals with bail. It is a self-contained code. Bail is a liberty order. It seeks to secure a cabined person to regain his liberty. 15. Court could be haste in grating bail provided the person is eligible, however, court should be very slow in cancelling the bail because it is in the nature of taking away the liberty of a person. 16. Article 21 of Constitution of India appears in Part III of Constitution of India. It is a fundamental Right. It proclaims that no one shall be deprived of his life or liberty except by procedure established by law. This part of the Constitution is analogous to Japanese Constitution. 17. Earlier in A.K. Gopalan vs State ( AIR 1950 SC 27 ), it was argued vigorously that the phrase ‘procedure’ employed in Article 21 of the Constitution should be equated to law of nature, natural justice like the American due process of law. But it was rejected by the then Supreme Court. But, later, it liberated itself from such literal view and gave a contrary view in R.C. Cooper vs. Union of Indian (Bank Nationalization Case). ( AIR 1970 SC 564 ) and Menaka Gandhi vs. Union of India ( AIR 1978 SC 597 ). 18. In 1978, in Menaka Gandhi vs. Union of India (AIR 1978 597), the Hon’ble Supreme Court infused energetic blood to the said phrase ‘procedure’ in Article 21 of Constitution of India. ( AIR 1970 SC 564 ) and Menaka Gandhi vs. Union of India ( AIR 1978 SC 597 ). 18. In 1978, in Menaka Gandhi vs. Union of India (AIR 1978 597), the Hon’ble Supreme Court infused energetic blood to the said phrase ‘procedure’ in Article 21 of Constitution of India. In Menaka Gandhi, the Hon’ble Supreme Court explained that any procedure envisaging taking away the liberty of a person must be ‘fair’, ‘reasonable’ and ‘equitable’. In a way, it introduced the American due process of law into Indian Constitutional Law. Menaka is a twilight in the annals of Human Rights Jurisprudence in India. Menaka is more than British Magnacarta and American Bill of Rights. 19. After, 1978, any law, order, direction having the consequence of taking away the liberty of a person must be ‘fair’, ‘reasonable’ and ‘equitable’. Thus it is imperative that even in bail matters court has to follow principles of natural justice. 20. Principles of natural justice offers minimum justice. They are not embodied in any statue and Rules. They came into being the moment human being came into being. No man shall be condemfied unheard. Hear before condemn. This is also Rule of Audi Alteram Partum. This is a facet of natural justice. It is also a concept of Dharma. Observance of principles of natural justice is universal. It applies to all the authorities, judicial bodies, quasi-judicial bodies. 21. In this case, admittedly, petitioner/A1 is on bail. On 16.12.2014, while P.W.1 is in the witness box the petitioner was in the dock. P.W.1 stated to the learned Sessions Judge that the petitioner had threatened her to withdraw the case. Further, it seems that the petitioner wanted adjournment of the case to engage a different defence counsel. 22. The learned Sessions Judge passed the impugned order and remanded the petitioner to judicial custody. Actually it is a bail cancellation order. It is pertinent to note that the bail has been granted to the petitioner by this Court. 23. In the impugned order dated 18.12.2014, it is seen that without giving any opportunity, the learned Sessions Judge had straight away cancelled the bail. It is cancelled without giving an opportunity. It is not a fair procedure. It is unreasonable. It is inequitable. It is against Manaka Gandhi. So, it militates against Article 21, Constitution of India. 24. Power including judicial power always implies responsibility. It is cancelled without giving an opportunity. It is not a fair procedure. It is unreasonable. It is inequitable. It is against Manaka Gandhi. So, it militates against Article 21, Constitution of India. 24. Power including judicial power always implies responsibility. Power also goes with accountability. Justice must be administered according to law. This is also a basis of Rule of Law. It is also supremacy of law. 25. Judicial discretion must be exercised on sound judicial principles. Courts are guardians of civil liberty. This is their constitutional duty and obligation. In any Constitutional Scheme, Courts are the last resort and hope of the people. It is also a matter of ‘access to justice.’ 26. I have been successfully persuaded by the learned counsel for the petitioner that the liberty granted to the petitioner has been lightly taken away by the learned Sessions Judge without following any accepted, settled principles of law. There is violation of principles of law. Liberty of the individual has to be jeliously guardened. If this kind of decisions are taken, it will embolden the police to indulge in certain mal practices. 27. Everyone is good including the police, but when they get opportunity they will try to behave badly. If this kind of orders are passed and bails are canceled it will give an idea to the police to tutor the witnesses just before the witness box to introduce some story-telling, concoction that the accused has threatened, the witness will recount parrot-like, then the liberty of the individual will be at stake. Even the petitioner may be at fault, but he must be given a reasonable opportunity before condemning him. Right to consult a lawyer of his choice, right to be defended by a lawyer of his choice are constitutionally guaranteed. (See Article 22(1) Constitution of India). A procedure by which liberty of a person has been taken away is not in consonance with law has to be set at naught. 28. In view of the foregoings, the liberty already granted to the petitioner by virtue of the bail order of this Court is restored. 29. (i) Bail granted. (ii) Bail already granted is revived. (iii) However, it is always open to P.W.1 or the prosecution to take any action in accordance with law.