‘Bail is a rule, jail is an exception is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgement of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447). The legal doctrine, in this case, was laid down by Justice V. Krishna Aiyer, who based it on fundamental Rights guaranteed by the constitution of India.
Seeing that a bail application filed before the Punjab and Haryana High Court has not been listed for hearing for more than one year, the Supreme Court has observed that under the prevailing pandemic, at least half of the judges should sit on alternative days so that hearing is accorded to the person in distress.
“Normally, we do not interfere with an interim order passed by the High Court but we are constrained to pass the present order as we are shocked to see that the bail application under Section 439 CrPC is not being listed for hearing for more than one year. The accused has a right to a hearing his application for bail. In fact, the denial of hearing is an infringement of right and liberty assured to an accused”.
The rap comes at a time when the HC faces a pendency of 6,84,490 cases, including 2,94,927 criminal matters involving life and liberty. Of these, 1,05,830 (35.88 per cent) of the criminal cases are pending for one to three years and another 24,954 (8.46 per cent) for 10 to 20 years.
The High Court went into a restricted functioning mode in March-end last year following the Covid outbreak, following which it cancelled the summer vacation for itself and the subordinate courts in 2020. This year, the High Court, however, decided to go ahead with the vacation even though the number of cases being heard drastically dipped to less than 1,000 just before the break from about 2,510 cases in April. As of now, just about six judges are holding the court during the vacation.
The matter was placed before the Supreme Court Bench of Justice Hemant Gupta and Justice V Ramasubramanian after a special leave petition (SLP) was filed by Chunni Lal Gaba against Assistant Director, Directorate of Enforcement. He had challenged an order whereby his request for hearing bail application, pending since February 28, 2020, was declined.
“Even during the pandemic, when all courts are making attempts to hear and decide all matter, non-listing of such an application for bail defeats the administration of justice…. Non-listing of an application for regular bail, irrespective of the seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody,” the Bench added.
Bail helps in ensuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.
On the other hand Section 439 of Cr. P.C. is the guiding principle for adjudicating a Regular Bail Application wherein Court takes into consideration several aspects viz. the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds.
