Prosecution Should Focus On Securing Conviction Than Opposing Bail: Supreme Court Flags Increasing SLPs Against Bail Orders

The Supreme Court on Wednesday voiced serious concerns over the growing number of appeals against bail orders reaching the apex court, observing that prosecutors should focus more on securing convictions than opposing bail and reiterating that bail matters should ordinarily rest with the High Courts.A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana refused to cancel the bail granted to Chaitanya Baghel, son of former Chhattisgarh Chief Minister Bhupesh Baghel, in the alleged Chhattisgarh liquor scam. While dismissing petitions filed by the Enforcement Directorate (ED) and the State Economic Offences Wing (EOW), the Court expunged certain adverse remarks made by the Chhattisgarh High Court against the prosecution, holding that they were "completely uncalled for."During the hearing, Justice Joymalya Bagchi questioned the increasing tendency of prosecutors to challenge bail orders before the Supreme Court instead of concentrating on ensuring successful prosecutions."If a prosecutor and an investigator invest so much on interlocutory liberties, his ultimate duty to procure a conviction is lessened," Justice Bagchi observed.He pointed out that conviction rates have declined to around 40-50 per cent while the Supreme Court's docket remains burdened with challenges to bail orders."When it is a [diminution] of Article 21 rights, we have to see the balance of Article 21 (right of victim) and the commitment of courts to the society, administration of justice. These are the guiding principles...Number of SLPs have burgeoned in the last couple of decades. Cancellations. This is concern of the Court. Today, every bench has not less than 10 SLPs against interlocutory bail jurisprudence. Why we are so concerned? If a prosecutor and an investigator invests so much on interlocutory liberties, his ultimate duty to procure a conviction is lessened. You can justify social accountability to continued undertrial detention. At the same time, absolve yourself from the higher test of ensuring a full-proof conviction.This is when bringing in so much of correctness of an order of bail is infact tilting the scale for a prosecutor who can ensure continued detention in one hand, and be absolved of a responsibility of a fair, just trial, which the victim wants for conviction. How many cases...73% detenus in India are undertrials. What is the conviction rate? Today it has decreased to around 40% or 50%. Not less than 1/3rd of those undertrials are acquitted. And mind you, these are not always honorable acquittals. They are acquittals because the investigator slipped, the prosecutor failed. This is where the attention should lie. The accountability should lie that we have been able to procure a conviction, not procured a cancellation. These observations from the bench are observations of concern about the administration of criminal justice and not liberty of X, Y or the respondent. We are least concerned about that."Justice Bagchi also remarked "Article 136 is not a jurisdiction to interfere with every wrong". The judge further said that under Article 136, the Court is concerned with balancing liberty with the rule of law."Under Article 136, we are not so concerned with the correctness of an order. We are concerned with the balance of liberty against rule of law. So in this situation, to put or pitch the liberty of an individual on the legal artistry of an order or the judicial sustenance of an order may be the wrong approach. On the other hand, we should dig deeper and see, notwithstanding the illegality of an order, whether the scales of justice require deprivation of liberty? We do not feel that the scale of justice would be served by going into the correctness of the order and guillotining liberty on that score."Justice Bagchi further questioned Jethmalani whether legal soundness of an order should become the sole test for depriving a person of his liberty? He also said that bail matters should ideally rest at the High Court level and lamented a growing trend of bail orders being challenged before the Supreme Court."We have developed an interesting jurisprudence. The jurisprudence of review...that not merit review, but a judicial review jurisdiction to test liberty. We would request you, as one of the most experienced senior advocates of the Bar, that is it a correct approach and particularly in the court of last resort - that the correctness of an order becomes the sole and only test to deprive liberty where liberty had been restored?Or should there be another layer? That okay order is wrong...reasons are absent...but when a court interferes under Article 136, it interferes on the anvil whether the continuance of liberty is so egregious that it affects the administration of justice. If it does not, why should we interfere? There may be wrong orders- right, left and centre. And this is where the bulk of interlocutory bail jurisprudence we have developed in the court of last resort. In...

Prosecution Should Focus On Securing Conviction Than Opposing Bail: Supreme Court Flags Increasing SLPs Against Bail Orders

Debby Jain

The Court also raised concerns over lengthy bail orders being written by the High Courts.

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Debby Jain

Prosecution Should Focus On Securing Conviction Than Opposing Bail: Supreme Court Flags Increasing SLPs Against Bail Orders

Debby Jain

The Court also raised concerns over lengthy bail orders being written by the High Courts.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

Debby Jain

This is a premium content
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