New Delhi, October 1, 2021: While opining that the Single Judge went beyond his allocated judicial business in rejecting bail applications, the Supreme Court has said that blanket order passed by him prohibiting listing of bail application or applications for suspension of sentence in appeals infringes upon the right of personal liberty of incarcerated persons.
Such right has been taken away by judicial order, without compliance of procedure established by law, which in our constitutional jurisprudence, is akin to “the due process” dictum, added the Court.
A Division Bench of Justice L. Nageswara Rao and Justice Aniruddha Bose observed that right to apply for bail is an individual right implicit in Articles 14, 19 and 21 of the Constitution and therefore, the right of an accused, an undertrial prisoner or a convicted person awaiting appeal court’s verdict to seek bail on suspension of sentence is recognized u/s 439, 438 & 389 of the 1973 Code.
If there is a blanket ban on listing of these applications, even for offences with lesser degree of punishment, that would effectively block access for seekers of liberty to apply for bail and in substance suspend the Fundamental Rights of individuals in or apprehending detention, added the Bench.
The observation came to be passed in reference to an order passed by the Single Bench of Rajasthan High Court on March 31, 2020, whereby it had directed the Registrar (Judicial) of the High Court to not to list bails, appeals, applications for suspension of sentence in appeals and revisions in the category of extreme urgent matters.
The background of the case was that the same Judge, in the other order, passed on May 17, 2021 giving rise to SLP (Crl.) No. 3949 of 2021, had directed the police authorities not to make arrest of persons in cases where the accused is charged under an offence carrying maximum sentence of three years and the offence is triable by a First Class Magistrate.
In the said order of May 17, the Single Judge also directed the High Court administration not to list bail applications u/s 438 of CrPC in offences where maximum sentence extends upto three years and the offence which is triable by a First Class Magistrate.
These orders were passed by the Single Judge in an application for anticipatory bail, registered as S.B. Criminal Miscellaneous Bail Application No. 3125 of 2021 (the second bail application), which was ultimately rejected.
Later, by an interim order passed by the Apex Court on May 25, 2021 in appeal brought by the High Court of Judicature for Rajasthan (Jaipur Bench), the directions issued by the Single Judge of Rajasthan High Court came to be stayed till further orders.
Therefore, since substantial relaxations had been made by the authorities on restrictions in the Covid-19 protocol, the Apex Court was constrained to address legality of the orders passed by the Single Judge.
The Apex Court observed that the said orders did not concern themselves with the applicants for bail, but general directions were issued on the Registry of the High Court and the police authorities. Secondly, the respective orders in substance impacted operation of legislative provisions giving right to an accused to apply for bail, suspension of sentence and other aggrieved parties to institute appeals under the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
The “in rem” character of these orders raise question of jurisdiction of the Single Judge in passing such orders, added the Top Court.
The Top Court opined that the orders under appeal passed on March 31, 2020 and May 17, 2021 encroached upon the administrative power of the Chief Justice of the High Court of Rajasthan in the matter of allocation of business to Judges of that Court.
It was also improper for the Single Judge to come to a general finding that when there is complete lockdown the bail applications, appeal under SC/ST Act and applications for suspension of sentence in appeals and revisions could not be considered to be matters of extreme urgency, added the Court.
“Such sweeping orders in our adversarial adjudicatory system would be contrary to law as many persons would be impacted by such orders without having any knowledge of the proceeding. The orders were passed in relation to criminal matters and would have had adverse effect on those suffering or anticipating pre-trial detention or convicts awaiting of their appeals. There could be individual cases of extreme urgency for undertrial prisoners or convicts also to apply for bail, upon suspension of sentence for the latter category of litigants”, observed the Division Bench of the Apex Court.
The Apex Court elaborated that the Single Judge was in error in picking up the four categories of litigations and arrive at a finding that these categories of cases could not be considered to be of extreme urgency.
It was also not within his jurisdiction to direct the Registrar (Judicial) not to list bail, appeals and applications for suspension of sentence in Appeals and Revisions in the category of extreme urgent matters, added the Court.
The Apex Court therefore concluded that the directions issued by the Single Judge of Rajasthan had the potential for breaching the constitutional and legal rights of individuals who could be or are arraigned in criminal action and also put fetters on power of investigating agencies.