Read Order: Nishant @ Nishu v. State of Haryana 

Vivek Gupta

Chandigarh, July 13, 2021: Less than a week after the Punjab and Haryana High Court sought explanation from the Sessions Judge, Sirsa for granting bail to an accused in a narcotics case when the matter was pending before its division bench, another lower court goof-up in a bail plea has come to the notice of the high court. 

Justice HS Madaan observed that the mistake not only wasted the time of the lower court and the high court but the petitioner too remained behind bars for a period of more than a year on account of non-functioning of the courts.

The fact of the case is that the Chief Judicial Magistrate, Panchkula on February 12, 2020 allowed the bail plea of one Nishant @ Nishu. However, this fact did not come to his notice or that of his counsel. He then moved an application for regular bail before the Sessions Judge, Panchkula on September 3, 2020, which was declined on September 15, 2020.

On hearing the bail plea of the accused now filed in the High Court, the Bench of Justice Madaan noticed a “very peculiar and unusual situation”. A perusal of the order passed by the Chief Judicial Magistrate, Panchkula, goes to show that the order was passed in the presence of the petitioner/accused, who was in custody and represented by counsel Saurabh Sharma.

Justice Madaan recorded that it was very strange that neither the petitioner nor his counsel would come to know about the order granting regular bail to him and rather the Sessions Judge, Panchkula was approached by way of filing application for regular bail.

“It is very surprising that without verifying and going through the order passed by Chief Judicial Magistrate, Panchkula, learned Sessions Judge, Panchkula proceeded to dispose of the application for regular bail when it should not have been done as bail had already been granted to the petitioner by Chief Judicial Magistrate, Panchkula,” the High Court observed in its order.

“Neither Sh. Swaran Singh, Advocate representing petitioner/accused nor Sh.Romil Lamba, Public Prosecutor for the respondent/State is shown to have brought this fact to the notice of learned Sessions Judge, Panchkula. If they had done so, then such type of situation could have been avoided,” stated Justice Madaan.

He further recorded that it was incumbent upon the police authorities to assist the Court properly and intimated with regard to the order passed by the Chief Judicial Magistrate. A perusal of the order passed by the Sessions Judge, Panchkula goes to show that reply to the bail application had been filed by the prosecution. 

“In the reply itself, this fact should have been mentioned but it appears that it was not so done,” the HC said.

“Thereafter, when the petition for regular bail was dismissed, the petitioner has approached this Court, in the process, precious time of Sessions Judge, Panchkula and this Court has been wasted and on his part the petitioner himself has remained behind bars for a period of more than 1 year and 4 months on account of non-functioning of Courts,” said Justice Madaan.

He then stated, “Let explanation be rendered by Subhas Mehla, the then Sessions Judge, Panchkula as to how this situation has cropped up. State counsel shall bring this order to the notice of Director, Prosecution, Haryana and DGP, Haryana so that responsibility of the persons at fault can be fixed and necessary action taken against them.”

The HC directed that the explanation will be furnished by August 12 after informing the Director, Prosecution, Haryana and DGP, Haryana. Learned State counsel shall intimate this Court in that regard, the court held.

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