With No Checks And Balance, Trial Courts Behave ‘Not Responsibly’: HC 

SRINAGAR — There are no checks and balances in place and the trial courts behave not responsibly, the Jammu and Kashmir High Court has said as directed Registrar Judicial to place the matter before Chief Justice for issuing an order, directing the trial courts to comply with the Supreme Court’s directions on the subject.

“The directions extended by the Apex Court are being violated with impunity by the Trial Courts. There are no checks and balances in place and the Trial Courts behave not responsibly. They do not address to the issue in conformity with the mandate of law,’ a bench of Justice M K Hanjura said.

The Apex Court in Hussain and Another v. Union of India had directed the High Courts to issue directions to subordinate courts that a bail applications should be disposed of normally within one week; Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials be normally concluded within two years.

The top court had also stressed on making efforts by the trial courts to dispose of all cases which are five years old by the end of the year and that if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. 

The timelines were asked to be treated as touchstone for assessment of judicial performance in annual confidential reports. 

“Taking this aspect of the case into consideration, the learned Registrar (Judicial) of this Wing of the High Court is directed to place the matter before her Ladyship, the Chief Justice so that the Chief Justice may be pleased to issue an order directing the Trial Courts to comply with the directions extended by the Supreme Court in letter and spirit,” Justice Hanjura said.  

The court made the order while granting bail to Tariq Ahmad Bhat and Bashir Ahmad Dar, accused who were held with contraband (charus) below commercial quantity.

“To categorize the materials in terms of quantity as small, medium and commercial is to allow escape routes for those to whom the rigor of section 37 NDPS Act does not apply. Had the intention of the legislators been to treat those who are found to be in possession of the small and medium quantity of the drugs and Narcotic substances on par with those from whom commercial quantity of such substances is recovered, it could not have pierced and scaled it in different scales and categories. ,” the court said, adding, “The conflict between the human tendencies and the rules of society is an eternal one which cannot ever be solved or ended to the entire satisfaction of idealistic puritans.”

 World of human society will always remain imperfect, it said. “It creates a false ethical self-importance on the part of the Courts who sit in judgment to decide or determine such cases not in accordance with the law but by sentimental proverbs,” the court said further.

The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail, the court said, is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences, the court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions.

“In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative, but the learned trial Court appears to have applied it in the reverse,” the court said.

Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon, the court said. “The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.”

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