Vivek Gupta

Chandigarh, July 30, 2021: The Punjab and Haryana High Court has expressed displeasure over a recent order of the Additional Sessions Judge, Gurugram in a bail case. 

Reproducing the order of the said lower court judge in its latest judgement dated July 28, the HC bench of Justice Arvind Singh Sangwan observed that the said order lacks the art of writing of an order and that the judge has not applied judicial mind.

“A reference to the case law will be secondary to reference to the facts of the case in order to make up a mind whether the anticipatory bail or in a given case regular bail can be granted,” the bench observed.

“In the absence of referring to facts of the case, the Additional Sessions Judge, has not applied the judicial mind,” it said.

While listing the matter again on December 9, the bench asked the Director, Chandigarh Judicial Academy look into the matter and issue necessary directions to judicial officers.

These observation came after petitioner Subhash Chand challenged the order of the ASJ, Gurugram thereby granting bail to an accused in an FIR registered on 30.06.2021 under Sections 420 and 120-B IPC at Police Station Pataudi, District Gurugram.

According to the petitioner, the FIR was registered on the premise that after an agreement to sell was entered into between the petitioner and the accused, the description of the property was changed by changing one page of the agreement and a house which is the only house of the petitioner was included in the same.

The petitioner also submitted that the order passed by the Additional Sessions Judge, Gurugram, is a totally non-speaking order as in the entire order, there is not even a single line of the contents of the FIR is referred to, which is the basic requirement for forming an opinion as to whether anticipatory bail needs to be granted to the accused persons.

It is also submitted that the only criteria adopted by the Additional Sessions Judge to rely upon the judgment of the Supreme Court in Arnesh Kumar vs State of Bihar and another wherein primarily dealing with a matrimonial case, a direction was issued that notice of appearance in terms of Section 41-A Cr.P.C. be served where the punishment is less than 7 years or may extend to 7 years.

But in the present case the FIR was registered only under Sections 420 and 120-B IPC and it will be only during the course of investigation, offence under Sections 467, 468 and 471 IPC, are likely to be added on account of the forgery committed by the accused wherein punishment is upto 10 years, therefore, in the absence of referring to facts of the case, the Additional Sessions Judge, has not applied judicial mind, the HC said.

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