Lower courts need to grant bails to reduce pendency in courts, avoid overcrowding in prisons, say experts

By, Mumbai
Oct 25, 2020 11:51 PM IST

Over a period of time the golden rule of jurisprudence of bail — bail is a rule and jail an exception — has almost been reversed when it comes to lower courts. Legal experts feel this is because the magistrates and judges of lower courts fear criticism from higher judiciary as well as on social media. As on October 25, 4,228,774 cases were pending in Maharashtra courts of which 2,944,123 are criminal cases. The numbers also portray the grim situation in prisons.

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“The data collected regarding prison population in India represents a grim scenario. It indicates that 67% of the prison population is awaiting trial in India. Inconsistency in bail system may be one of the reasons for over-crowding of prisons across the country, giving rise to another set of challenges to the prison administration and state,” reads the report of the law commission of India dated May 2017.

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In its conclusion, the commission clearly stated, “Unnecessary pre-trial confinement should be minimised. Confinement is detrimental to the person accused of an offence who is kept in custody, imposes unproductive burden on the state, and can have an adverse impact on future criminal behaviour, and its reformative perspectives will stand diminished.”

“It must be noted that 78% of the convicts are in prison for offences punishable with imprisonment of 7 years and above; whereas 57% of the undertrials are in prison on an average for 3-6 months,” reads the report.

More than three years since the report, there has been hardly any changes in the lower judiciary — especially magistrate’s courts — which are still reluctant in exercising their power under section 437 of the Criminal Procedure Code (CrPC) which deals with bail.

Former Supreme Court judge justice BN Srikrishna said, “As far as law is concerned, ‘bail but not jail’ is the rule. This should be the rule. Bail is a conditional order. I allow you to move around and not send you to jail provided you will attend the court, not tamper with evidence. Bail is not a punishment. In giving bail, the courts should access the facts such as if the accused can run away or tamper evidence or if he or she will not take part in the investigation. The judges ought to follow this rule. Otherwise, it’s unfair.”

“It has to be seen when a person can be granted bail,” said former Supreme Court judge justice Arjan Kumar Sikri. “If you don’t grant bail, it is a human rights issue. If he is entitled to bail, and if he remains inside the prison for even a day or two, you have deprived him of his personal liberty. One has to be very sensitive in deciding these applications and they have to do their duties fearlessly. If you feel a person is entitled to bail you should not shy away from doing that. This is the ethos of our constitution and Criminal Procedure code,” said justice Sikri.

Narrating his experiences as the judge of the Apex court justice Sikri said, “It has been seen that many times, particularly when either the cases are controversial or delicate or political in nature or where there can be an outburst, the tendency in the lower courts is why should we do it, let the person take it from the high court or Supreme Court.”

Justice Sikri further said that the jurisprudence of bail is that the person is not to be treated as guilty. He further explained that at this time what is to be seen is if the person will participate in the investigation, will not flee, and will not try to win over or terrorise the witnesses. “If these things are taken care of, the person should be given bail. Of course, there are exceptions where the charges of very serious or grave in nature such as murder,” he added.

However, justice Sikri said that judges do come under pressure from not only media but also social media. “The judges are given protection so that they can perform their task fearlessly, objectively and impartially, and there should be independence. Once these are safe guarded, they should not fear. High courts have to step in and provide a clear picture to lower judiciary that ‘do not worry, we are not going to take action unnecessarily’,” said justice Sikri while suggesting that high courts come forward and play the role of a guardian.

Former Bombay high court judge justice Abhay Thipsay, who began his career first as a magistrate, said, “People are afraid of giving bail. There have been instances where actions have been taken rightly or wrongly on judges for granting bail. There is no reverse example. There is a need to create a reverse fear, whereby a judge needs to answer on why a person is kept under detention for such a long time.”

Thipsay said, “Sometimes bail orders are suspected, and it affects the career of the judges. But sometimes, absolutely without any evidence, if a judge keeps on remanding an accused for months together without granting bail to the accused, the high court has to play a role. Also social media brings added pressure these days.”

Two former judges of Bombay high court who refused to be named opined that lower judicial officials are reluctant in granting bail for several reasons. One of the factors is fear of adverse remarks in their annual report card or a discreet enquiry against them. They also said that opinions reflected on social media bring added pressure on them.

Judicial officials also expressed fear that there can be a reverse effect on the person if he is not granted bail and kept in jail with hardened criminals. Further, not granting bail not only results in overcrowding in prisons but also adds additional burdens on the higher judiciary as the accused would ultimately have to move further up for his release.

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