Judicial discretion must be exercised with care in bail applications: DB

Excelsior Correspondent

Srinagar, May 31: High Court today emphasized that the judicial discretion must be exercised with care and guidelines be kept in mind while considering the bail applications.
The Division Bench of Justice Rajnesh Oswal and Justice M Y Wani said there is no single golden rule or any single litmus test for consideration of a bail application but the guidelines/governing principles, which are not exhaustive, are to be kept in mind while considering a bail application.
The court further added that the judicial discretion must be exercised with the utmost care and circumspection and the court must duly consider the nature and the circumstances of the case including reasonable apprehension of the witnesses being tampered, investigation being hampered or the judicial process being impeded or subverted.
“The liberty of an individual must be balanced against the larger interests of the society and the State and the court must weigh in the judicial scales, pros and cons varying from case to case all along bearing in mind two paramount considerations for grant of bail quo an offence punishable with death or imprisonment for life is an exception and not the Rule”, DB said in the judgment.
The DB further added that the court at this stage is not conducting a preliminary trial and the nature of the charge is the vital factor, the nature of evidence is also pertinent, the punishment to which the party may be liable also bears upon the matter and the likelihood of the applicant interfering with the witnesses or otherwise polluting the course of justice
The presumption of innocence of the accused court added, till the proof of guilt will not be affected even if the bail is rejected and it is for the prosecution to establish the guilt of the accused beyond any shadow of doubt.
“Admittedly, in case of non-bailable offence, which do not carry the sentence of death or imprisonment for life in alternative, bail is a rule and its denial an exception especially where there is nothing on record to show that the accused if admitted to bail will jump over the concession of bail and will tamper with the prosecution witnesses”, read the judgment.
Bail or jail court said, at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. “Personal liberty deprived when bail is refused is too precious a value of our constitutional system recognized under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judiciously with lively concern for the cost to the individual and the community”, the court recorded.
These observations were made by the DB while hearing a plea challenging the common order passed by the Court of Special Judge under NIA Act (Addl. Sessions Judge) Kupwara on the bail applications of the appellant-Burhan Din Wani and co-accused whereby the applications came to be rejected.
That appellant-Wani has been facing incarceration in the case since April 2020 for his involvement in the case FIR on the alleged disclosure of co-accused Azad Ahmad Bhat and Altaf Ahmad Baba for alleged recovery of a ‘Hand Grenade’ from him.
The prosecution pleaded that the appellant/accused along with his guilty partners is involved in a serious non-bailable Anti National Offences touching the sovereignty and integrity of the country and the prosecution has led sufficient incriminating evidence at the trial against the appellant, which cannot be weighed and scrutinized at this stage.
The DB while dismissing the plea and rejecting to grant bail said the courts while deciding the bail applications in respect of which the Code/BNSS or some Special Statute places embargo/limitations as in the instant case, will be traversing beyond their proper ambit and would be exceeding the limit of their functions, if they get engaged in discovering the guilt or innocence of the Applicant/accused, which can only be determined at the conclusion of the trial.

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