Process Should Not Become The Punishment, Don't Deny Bail Thinking Accused Might Not Get Convicted : Justice Kaul's Advice To Trial Judges

While delivering his speech at the valedictory ceremony of the First All India District Legal Services Authorities Meet, Supreme Court Judge, Justice Sanjay Kishan Kaul, on Sunday, encouraged all present, particularly, the members of the subordinate judiciary to bring an end to litigation before them by resorting to 'out of the box thinking' while also utilising the tools available within the traditional legal system. Otherwise, he expressed concern that even 500 years would not be enough to see an end to the issue of pendency of cases. "The sheer volume of pendency to my mind is creating an impediment. If every case has to be tried till the end; every first appeal has to be heard by the courts; if every matter transcends itself to come into the Supreme Court, why 200 years, 500 years we will also not see the end of this litigation." He reckoned that the Legal Services Authorities have a crucial role to play in this regard. He emphasised that legal assistance should not be idealistic, but practical. For e.g. apart from advising a convict who is on the verge of completing their sentence to file an appeal; they should also be guided to file for remission. "Acquittal is one aspect. His case should go for remission, is another. These two are mutually exclusive. Sometimes you know there is no merit in appeal but you pursue to bring quietus. Going on the remission side would be efficient." He suggested that efforts should be made to ensure that litigation is closed at the first stage itself; this would relieve the higher judicial fora from additional burden and would go a long way in tackling the backlog. It was indicated that plea-bargaining and mediation has the potential to close litigation at the initial stages. Justice Kaul was of the opinion that the accused persons, who might have committed the offence, would take plea-bargain rather than insisting on seeking acquittal. Unfortunately, in reality, he found that the criminal justice system has failed to make the accused aware of the existence of such a mechanism. "Truly if asked and if they have been actually guilty of the offence whether proven or not, they according to me would be more than willing to go through a plea-bargaining. But the system has not been able to guide them or make them aware of plea-bargaining. It is necessary that the judges and the defence system that is now being set up consciously make available this plea-bargaining mechanism and make them aware of it. This is one aspect. Along with plea bargaining is also mediation." Keeping People Behind Bars Is Not The Solution; Prosecution To Be More Innovative And Scientific In Its Approach It was pointed out that the process should not be the punishment; keeping people behind bars is not the solution. He stated that the mindset of the prosecution which endeavours to keep the people behind bars needs to be changed. He noted even the members of the judiciary often borrow the prosecution's mindset to keep the accused behind bars for a long period of time. Justice Kaul highlighted that the prosecution ought to be more innovative and scientific in its approach. "This is the mindset of the prosecution…this is also the mindset of all our brethrens at times - 'Prosecution is not going to do its job, I know this fellow has done this, let me put him behind bars for the time period I can even if I am not able to convict him'. That is no solution. If the prosecution is to do its job, it has to be more innovative, more scientific, it has to use technology." He observed that suppose if 30% conviction is recorded, the remaining 70%, who are ultimately acquitted, end up spending a lot of time in jail. It was emphaised on that it is not the job of a judge to do the work of a prosecutor. Just because a judge feels that the accused might get away is not sufficient reason to keep them behind bars. "See it is not our job to be the prosecutor….To say that people get away so we should keep them behind bars through this convoluted process is not the solution." Not Enough FSL Labs; India Blessed With Software And Human Resources In Abundance, Should Be Utilised He flagged the issue of the lack of FSL Labs which is causing impediment in investigation, especially for economic offences. Software and human resources being in abundance in India, Justice Kaul stated, the same should be put to good use and delay should not be caused for unavailability of FSL labs. "One of the things flagged was absence of sufficient FSL labs. In economic offence someone is behind the bars for 2.5 years, the investigation is not complete. They say there is a lot of data and FSL is still processing. Our country is a country where there is so much software available, so much manpower available - we need to use that rather than prolonging the case. That mindset needs to change." ...

Process Should Not Become The Punishment, Don't Deny Bail Thinking Accused Might Not Get Convicted : Justice Kaul's Advice To Trial Judges

Sohini Chowdhury

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Process Should Not Become The Punishment, Don't Deny Bail Thinking Accused Might Not Get Convicted : Justice Kaul's Advice To Trial Judges

Sohini Chowdhury

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