20 April 2020 7:20 AM GMT
'Personal liberty , deprived when bail is refused, is too precious a value of our constitutional system recognised under Art 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community'.The above is quoted from a judgement delivered by Honourable Justice Krishna Iyer while he was...
'Personal liberty , deprived when bail is refused, is too precious a value of our constitutional system recognised under Art 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community'.
The above is quoted from a judgement delivered by Honourable Justice Krishna Iyer while he was a Supreme Court judge. The Supreme Court has also time and again reminded that 'bail is rule and jail is exception'. Kerala High Court has been a torch bearer in the Indian legal system and has also been the beacon while resorting to video streaming of court proceedings in the country during the unprecedented situation created by Covid-19. It is in this context , the delay in considering bail applications of undertrials by courts in Kerala attains importance.
The current procedure followed is to automatically adjourn a fresh bail application to another date on the first date of posting. The accused who is in custody before the charge sheet is filed is not a culprit but a person who awaits his trial and therefore, his personal liberty should not be curtailed mechanically but after due consideration. Many at times, even if the jurisdictional police station is just across the road, the accused is bound to wait until the next posting arrives.
This is when Covid -19 and the subsequent social distancing measures taken by the judiciary gives us hope and should bring in changes in such mechanical procedures. Kerala being one of the smallest states in the country has Kasargode at its farthest north and Thiruvananthapuram in the south. The maximum time taken to travel from Kasargode to Thiruvananthapuram is twelve hours.
All the police stations are equipped with computers and internet. In addition to this, FIR is also digital and available to the public since some years. All the police officers have a mobile phone with internet facility provided by the department itself. Urgent instructions in bail applications can be taken over the phone and if it is necessary to be in writing, it is just a click away. Exchange of E-mails can happen between the Police station and the public Prosecutor in a flash. If case diary is necessary in more serious crimes, as I mentioned earlier, no part of Kerala is more than twelve hours away by road or rail !
Hearing the Public Prosecutor - NOT mandatory in all cases
Having said that, Section 439 of the Code of Criminal Procedure,1973 makes it mandatory to give notice of the application for bail to the Public Prosecutor only if the accused is charged with an offence which is triable exclusively by the Court of Session or which though not so triable, is punishable with imprisonment for life. Therefore, in other offences, the Code doesn't make it mandatory to hear the side of the Public Prosecutor and so the automatic adjournment of bail application of such manner is merely mechanical and it takes away the personal liberty of a person for a few more days casually.
E-mails, Mobile phones and other possibilities of Information Technology is advancing day by day and so should the criminal justice system as personal liberty is a sacred right of an individual and the objective of bail is to ensure that the accused does not evade trial as held by the Supreme Court in various cases. The fundamentals of criminal jurisprudence in India thrusts on the presumption of innocence of an accused till he is found guilty. The needs of the society to be protected from transgressive behaviour of an individual is no excuse for delayed consideration of bail application.
' Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time'. Even though these words were delivered by Justice A.K.Goel particularly referring to the long pending criminal trials, the words fit perfect in the case of bail applications too. Non-consideration of bail application expeditiously in this digital era can also be categorised as a "long time" as an application is preferred by a person who is deprived of the constitutional guarantee of right to personal liberty.
It is high time a new system is evolved so that those applying for bail needs to wait no longer than 48 hours for a decision.
While in Law school, I was made to understand that laws and rules should change according to the changes in the society. Yes, the iron is hot and now is the time to strike it !
 Babu Singh and Others V. The State of U.P [1978 (1) SCC 579] , para 8.
 Nikesh Tarachand Shah v Union of India [2018(11) SCC 1]
 Hussain and Another V. Union of India [2017(1) KLT 1015], para 26.