November 21, 2024

Although the underlying principle for judges is “bail, not jail” when it comes to disposing of bail applications, they almost always take recourse to the notations in the case diary of the investigative agencies and the arguments put forward by the prosecution in deciding whether the accused gets bail. The case diary assumes great importance as the investigating officer notes the time, manner and circumstances of the arrest and the progress of the investigation thereafter.

But what happens when this vital piece of evidence in a bail case is not produced on court on the day the bail application comes up for hearing? In normal circumstances, relying on the verbal and written submissions of the public prosecutor, the judge extends the custody. But is this right? Should the accused person’s right to bail be denied just because the investigating agencies and their legal team are sloppy, inefficient and negligent?

The Guwahati High Court does not seem to think so. A single judge bench of acting Chief Justice K. Sreedhar Rao took a view that that the practice of calling for case diaries in almost all cases is not just. The judge said “such a practice does not appear to be a just course for adjudicating bail applications.” Justice Rao further said that “the public prosecutors, while filing objections, shall have to take proper instructions from the investigating agencies and collect all necessary details and incorporate all those details in the objections statement and that should be proper material for the court to consider the bail applications or otherwise.”

If the case diary is not presented before the court on the day a bail application is moved, it is nothing but inefficiency on part of the investigating agency and the legal team. Very often, the simplest reason is that the investigating officer has not found time to update the case diary in the mandated manner and hence cannot produce it before the court. Why should an accused suffer for that? Lawyers have expressed surprise at this order, saying that a lapse on part of the investigative officer or the public prosecutor can result in an accused getting bail.

But the premise behind the judgment is exactly that. Why should investigating agencies or the public prosecutor be so slack in preparing themselves for objecting to a bail application? It is not as if some witness is to be examined and the matter can be postponed for a few weeks. A person is held in jail even though charges against him are not proved. Legally, he should be out of jail if there are not enough compelling reasons for his continued incarceration and it is the duty of the prosecution to present those compelling reasons. If the case diary leads to those reasons, it should be presented before the court on that date; otherwise the court should be free to decide that the prosecution is not interested in further custody. The prosecution cannot hope to get custody if it cannot prove compelling reasons.