July 31, 2024, 8:57 AM IST
Trial courts, as CJI has said, are not applying common sense in bail hearings. Fault lies largely with HCs
In Delhi’s basement drowning case, a 50-year-old who drove past the tuition centre, navigating the waterlogged road, was sent to judicial custody for 14 days by Tis Hazari court. Yesterday, court reserved its order on his bail plea. The charge? That the rainwater his SUV displaced aggravated the surge. That cops arrested a passerby rather than pursue those who ignored alerts of the basement’s vulnerability, or those officials who’ve turned away from blatant rule-breaking, says a lot. But perhaps, more extraordinary is the court’s reaction. Just what is going on in the name of ‘justice’? That the court opted to stay its order on the bail plea exemplifies exactly the kind of court action SC and CJI caution about.
CJI-speak | Days ago, CJI in Bengaluru said judges must have “robust common sense”, that unless judges “separate the grain from the chaff in criminal jurisprudence”, “just solutions” were unlikely. He said trial courts “play it safe” when they deny bail, pinpointing the problem to the “suspicion with which grant of relief is viewed”. In 2022, CJI had said there exists a “sense of fear” among district judges that, if not sorted out, would render trial courts “toothless” and higher appellate courts “dysfunctional”.
Fear & rebuke | The bottom line is, SC has no power of supervision over HCs, but HCs enjoy such power over trial courts. Trial judges are indeed apprehensive, not least of high courts’ adverse remarks and of their orders getting overturned – both of which impact their careers. Recall Kejriwal’s bail, granted by a special judge, who took investigators to task in her order, saying the agency wasn’t acting without bias. Delhi HC dragged out its overturning of the bail and called the trial court order “perverse”. In another money laundering case early July, SC expressed its shock that Delhi HC “casually stayed” a “reasoned order granting bail”, without specifying any reason. SC said, “What signals are we sending?”
Internal matter | The signals are that no-bail is trial courts’ template. There’s another reason for this, which SC articulated in its landmark order in Satender Kumar Antil vs CBI (2022). SC said given the “abysmally low” conviction rate in criminal cases, courts “tend to think that the possibility of conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles”. In essence, denial of bail doubles as punishment. Only HCs can give trial court judges the courage to apply common sense.
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