Gujarat High Court
Bhavesh Baldevbhai Desai / Rabari vs State Of Gujarat on 12 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (FOR CHALLENGING
VIRES/ULTRA VIRES) NO. 14040 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHAVESH BALDEVBHAI DESAI / RABARI
Versus
STATE OF GUJARAT
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Appearance:
MR ASIM PANDYA, SR.ADVOCATE with GAURAV VYAS and MR SHYAM
M SHAH,ADVOCATES for the Applicant(s) No. 1
MR KM ANTANI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 12/02/2024
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
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1. This petition filed under Article 226 of the Constitution of
India raises an important issue pertaining to the procedure
being adopted by this Court as a long practice in issuance of
"Rule" in bail matters, the applications filed under Sections
438 and 439 of the Code of Criminal Procedure, 1973 (in
short as " Cr.P.C.). The petitioner herein is aggrieved by the
pendency of the bail application, namely Criminal
Miscellaneous Application No. 20917 of 2022, wherein order
dated 16.11.2022 was passed issuing Rule returnable on
28.11.2022 when the learned Additional Public Prosecutor
already waived service of notice of Rule for and on behalf of
the respondent-State.
2. It is stated in the writ petition presented on 25.08.2023, that
the bail application had not been decided even after 27
adjournments without the fault of the petitioner.
3. The issues as agitated by Mr. Asim Pandya, learned Senior
Advocate assisted by learned advocates Mr. Gaurav Vyas and
Mr. Shyam Shah appearing for the petitioner are:-
(i) Practice of issuance of "Rule" or "Rule Nisi" and posting bail
matters after two or three weeks for final hearing is contrary
to the provisions of the Gujarat High Court Rules, 1993 ("the
Rules'1993) and the Rules governing the procedure of this
Court.
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(ii) The practice of relegating accused to the (trial Court)
Sessions Court for bail when his bail application at the pre-
chargesheet stage is pending in the High Court, where the
chargesheet is filed during the pendency of the bail
application, is to be stopped.
4. It is submitted by Mr. Asim Pandya, learned Senior Advocate
appearing for the petitioner that the practice of issuing
"Rule" or "Rule Nisi" on the presentation of the bail
application is causing prejudice to the right of the applicants
to seek release on bail at the earliest. It is contended that the
bail application filed during the course of investigation or
trial has to be proceeded with keeping in mind the principles
of criminal jurisprudence of presumption of innocence of a
person accused of an offence, placing the onus on the
prosecution to prove the guilt before the Court. It is for the
investigating agency to satisfy the Court that the arrest made
was warranted and enlargement on bail is to be denied. The
principle that "the bail is the rule and jail is the exception",
has been well recognized by the Apex Court in a catena of
decisions, the latest being Satender Kumar Antil vs.
Central Bureau of Investigation and another, (2022) 10
SCC 51, wherein the Apex Court has held therein that the
word "bail" has not been defined in the Cr.P.C, but the Code,
despite being a procedural law, is enacted on an inviolable
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right enshrined under Articles 21 and 22 of the Constitution
of India. The Apex Court, having extensively, gone through
the provisions of Cr.P.C. pertaining to the investigation,
arrest of a person named as accused and the power and
method to be adopted by the Court, has issued a slew of
directions to be followed by the investigating agencies as also
for the Courts. It is directed therein that the bail applications
ought to be disposed of within the period of two weeks,
except if the provisions mandate otherwise, with the
exception being an intervening application. The applications
for anticipatory bail are expected to be disposed of within the
period of six weeks with the exception of any intervening
application.
5. The contention, thus, is that the practice of issuing "Rule" or
"Rule Nisi" in the bail applications and postponing the bail
applications on its presentation without adverting to the
merits is contrary to the decision of the Apex Court in
Satender Kumar Antil(supra). This practice is to be curbed
immediately, as it is also contrary to the procedure
prescribed in the Gujarat High Court Rules, 1993 (in short as
"Rules'1993"). Rule 335 contained in Chapter XXVI of the
Rules'1993 provides for advance notice of the bail application
upon the learned Government Pleader. It provides that in
cases arising from the Ahmedabad City, advance notice is to
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be given at least 24 hours before the application is heard by
the Court and in cases from mofussil, 48 hours before the
such hearing is to be given. No bail application can be filed in
the Registry without giving advance notice to the Office of
the Government Pleader as per Rule 335 of the Rules'1993.
Further, the bail applications are listed before the Court by
the auto-listing mode on the 3rd day of the registration if
without objection. The office of the Government Pleader/
Public Prosecutor, thus, gets sufficient time to seek
instructions from the concerned police station or the Court,
as the case may be, to ascertain as to the relevant aspects of
the matter. In any case, no casual adjournment can be
granted in a bail matter, as it would be in direct conflict with
the decisions of the Apex Court, the recent one being
Satender Kumar Antil ( supra).
6. It was further argued that the Rules framed by the High
Court of Gujarat in exercise of the power conferred under
Article 227 of the Constitution of India for making
amendments in Criminal Manual, 1977 provides a timeline
for deciding regular/anticipatory bail by the trial Courts. Rule
25A of the Rules'1993 notified by the Notification dated
24.05.2022 states that the application for bail and non-
bailable cases must ordinarily be disposed of within a period
of three to seven days from the date of first hearing. In case
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the application is not disposed of within such period, the
Presiding Officer shall have to furnish reasons thereof in the
order itself.
7. It was further argued that Sections 438 and Section 439 of
the Cr.P.C confer concurrent jurisdiction on the Court of
Sessions and the High Court in the matter of grant of bail to a
person apprehending arrest or any person accused of an
offence and in custody. However, a practice has been
developed in this Court over the period of years that most of
the bail applications filed prior to filing at the pre-
chargesheet stage are adjourned for three to four weeks for
final hearing or by giving time to the Public Prosecutor to
seek instructions in the matter from the investigating officer
concerned or for some other reasons. By the time, the bail
matter is taken up for hearing by the Court after three to four
weeks, the chargesheet is filed and on intimation given to the
Court that the chargesheet is filed, the accused is relegated
to approach the trial Court to seek bail. The submission is
that this practice has no statutory sanction. No advocate or
litigant can be compelled to withdraw the bail application,
merely because the chargesheet has been filed in the matter.
It was argued that this practice violates Article 21 of the
Constitution, as it prolongs the period of custody of the
person made accused further for at least two to three weeks.
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In many of the matters, this practice has resulted in a futile
exercise, as the applicants have to again approach the High
Court on rejection of the bail application by the trial Court in
a casual manner.
8. Learned Senior Counsel has, thus, prayed that some
guidelines may be issued for expeditious disposal of the bail
matters in consonance with the provisions of Sections 438
and 439 of the Cr.P.C and in the spirit of Article 21 of the
Constitution. It is contended that the cause espoused by the
petitioner in the instant petition is for the benefit of all, as it
is crucial to see that the outcome of the legal procedure
aligns with the broader concept of justice under the
Constitution of India, the provisions incorporated in the
Cr.P.C. and reiterated by the Apex Court in Satender
Kumar Antil (supra).
9. Having noted the controversy raised herein, we proceed to
treat the present petition as Public Interest Litigation for the
cause of such persons who have been made accused and
waiting for disposal of their bail applications in different
Courts in the State of Gujarat.
10. Further, considering the contentions of learned Senior
Counsel for the petitioner, we may note at the outset, that
there cannot be any doubt or dispute to the proposition that
the pendency of a bail application beyond a reasonable time
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period is contrary to the constitutional scheme incorporated
in the procedure laid down under the Cr.P.C. The liberty of
an individual made accused of an offence is paramount
consideration while striking a balance between the freedom
of an individual and concerns of the investigating Agency or
the Courts to curtail the same. The Apex Court has issued
directions from time to time so as to curb the tendency of the
police officers arresting the accused unnecessarily and the
Magistrate authorizing detention casually and mechanically.
11. In Arnesh Kumar vs. State of Bihar and another, (2014)
8 SC 273, the Apex Court emphasized the need to maintain
the balance between individual liberty and societal order
while exercising the power of arrest. It was noted that the
arrest curtails freedom, bring humiliation and casts scars
forever; no arrest can be made in a routine manner on a mere
allegation of commission of offence made against the person.
It would be prudent and wise for a police officer that no
arrest is made without a reasonable satisfaction reached
after some investigation as to the genuineness of the
allegation. In order to curb the tendency of making casual
arrest, Section 41 of the Cr.P.C. in the present form came to
be enacted in view of the recommendation of the 177 th Report
of the Law Commission submitted in the year 2001. The law
brought into force vide Act No.5 of 2009 with effect from
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01.11.2010, mandates the police officer to state the facts and
record the reasons in writing, which lead him to come to the
conclusion governed by any of the law as enforced with the
substitution of Section 41 and insertion of Section 41A,
mandatory provisions therein, while making such arrest. The
provision further requires the police officers to record
reasons in writing even for not making the arrest. In pith and
substance, the police officer is answerable as to why the
arrest has been made, for what purpose and with what
object. The police officer may have reasons to believe on the
basis of information and material that the accused has
committed the offence, but it reach at the satisfaction further
that the arrest is necessary for one or more purposes
envisaged in the aforesaid provision.
12. In Siddharth vs. State of Uttar Pradesh and another,
(2022) 1 SCC 676 a question came up before the Apex
Court as to whether it is mandatory for the trial Court to take
a person made accused into custody at the time of taking a
chargesheet on record, in view of Section 170 the Cr.P.C. In
the said case, the appellant had already joined the
investigation. The reason to approach the Apex Court was on
account of an arrest memo issued by the police officer on the
premise that Section 170 of the Cr.P.C prevents the trial
Court from taking the chargesheet on record unless the
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accused is taken into custody. It was held therein that
Section 170 of the Cr.P.C does not impose an obligation on
the officer in-charge to arrest each and every accused at the
time of filing of the chargesheet. Noticing in the facts of that
case that the accused had co-operated with the investigation
throughout and yet on the chargesheet being filed act of
issuance of non-bailable warrants for his production premised
on the requirement that there is an obligation to arrest the
accused and produce him before the Court, was based on
misconception. It was observed that if the investigating
officer does not believe that the accused will postpone,
abscond or disobey summons, he/she is not required to be
produced in custody. The word "custody" appearing in
Section 170 of the Cr.P.C does not contemplate either police
or judicial custody, but it merely connotes the presentation of
the accused by the Investigating Officer before the Court
while filing the chargesheet.
13. It was observed that personal liberty is an important aspect
of our constitutional mandate and merely, because an arrest
can be made because it is lawful, does not mandate that the
arrest must be made. A distinction must be made between
the existence of the power to arrest and the justification for
exercise of it. If arrest is made routine, it can cause
incalculable harm to the reputation and self-esteem of a
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person.
14. In Satender Kumar Antil(supra), the Apex Court has taken
the issue of arrest of a person made accused in the current
scenario of the under trial prisoners and the arrest being
made on registration of a cognizable offence being charged
with offence punishable for seven years or less. It was noted
that the term "bail" though has not been defined in the
Cr.P.C. and is used very often, is nothing but a surety
inclusive of a personal bond from the accused. It means
release of an accused person either by the orders of the
Court or by the police or by the investigating agency. It is a
set of pre-trial restrictions imposed on a suspect while
enabling any interference in the judicial process. Thus, it is a
conditional release on the solemn undertaking by the suspect
that he would cooperate both with the investigation and the
trial. It was noted that the principle that "bail is the rule and
jail is the exception" has been well recognized through the
repetitive pronouncements of the Apex Court, which again is
on the touchstone of Article 21 of the Constitution of India.
15. It was noted that the object of bail is neither punitive nor
preventive. Deprivation of liberty must be considered a
punishment, unless it is required to ensure that the accused
person will stand his trial when called upon. The Courts owe
more than verbal respect to the principle that the punishment
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begins after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty (Reference was
made to Sanjay Chandra vs. Central Bureau of
Investigation, (2012) 1 SCC 40).
16. It was further noted that the innocence of a person accused
of an offence is presumed through a legal fiction, placing the
onus on the prosecution to prove the guilt before the Court. It
is for the agency to satisfy the Court that the arrest made
was warranted and enlargement on bail is to be denied. It has
been the consistent stand of the Courts in India that
presumption of innocence, being a facet of Article 21, shall
inure to the benefit of the accused. Resultantly, burden is
placed on the prosecution to prove the charges to the Court
of law. The weightage of the evidence has to be assessed on
the principle of beyond reasonable doubt. The Cr.P.C.,
despite being a procedural law is enacted in the inviolable
right enshrined under Articles 21 and 22 of the Constitution
of India. The provisions governing clearly exhibited the
aforesaid intendment of Parliament.
17. The Apex Court in Satender Kumar Antil(supra) having
elaborately discussed the provisions contained in Sections 41,
41-A, 60-A contained in Chapter-V of the Cr.P.C pertaining to
arrest of persons; Sections 87 and 88 of the Cr.P.C providing
procedure for issuance of warrant and power to take bond for
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appearance; Section 167(2) of the Cr.P.C. pertaining to the
power of the Magistrate authorizing the detention of the
accused in custody on the request of the Investigating
Officer; Sections 204, 209, 309, 389, 436-A, 437, 439 and
section 440 of the Cr.P.C, has proceeded to issue the
following directions meant for the investigating agencies and
also for the Courts, in the matter of arrest or grant of bail :-
" 100. In conclusion, we would like to issue certain
directions. These directions are meant for the investigating
agencies and also for the courts. Accordingly, we deem it
appropriate to issue the following directions, which may be
subject to State amendments.:
100.1 The Government of India may consider the
introduction of a separate enactment in the nature of a
Bail Act so as to streamline the grant of bails.
100.2. The investigating agencies and their officers are
duty-bound to comply with the mandate of Section 41 and
41A of the Code and the directions issued by this Court in
Arnesh Kumar (supra). Any dereliction on their part has
to be brought to the notice of the higher authorities by
the court followed by appropriate action.
100.3. The courts will have to satisfy themselves on the
compliance of Section 41 and 41A of the Code. Any non-
compliance would entitle the accused for grant of bail.
100.4. All the State Governments and the Union
Territories are directed to facilitate standing orders for
the procedure to be followed under Section 41 and 41A of
the Code while taking note of the order of the High Court
of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of
2018 and the standing order issued by the Delhi Police
i.e. Standing Order No. 109 of 2020, to comply with the
mandate of Section 41A of the Code.
100.5. There need not be any insistence of a bail
application while considering the application under
Section 88, 170, 204 and 209 of the Code.
100.6. There needs to be a strict compliance of the
mandate laid down in the judgment of this court in
Siddharth (supra).
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100.7. The State and Central Governments will have to
comply with the directions issued by this Court from time
to time with respect to constitution of special courts. The
High Court in consultation with the State Governments
will have to undertake an exercise on the need for the
special courts. The vacancies in the position of Presiding
Officers of the special courts will have to be filled up
expeditiously.
100.8. The High Courts are directed to undertake the
exercise of finding out the undertrial prisoners who are
not able to comply with the bail conditions. After doing
so, appropriate action will have to be taken in light of
Section 440 of the Code, facilitating the release.
100.9. While insisting upon sureties the mandate of
Section 440 of the Code has to be kept in mind.
100.10. An exercise will have to be done in a similar
manner to comply with the mandate of Section 436A of
the Code both at the district judiciary level and the High
Court as earlier directed by this Court in Bhim Singh
(supra), followed by appropriate orders.
100.11. Bail applications ought to be disposed of within a
period of two weeks except if the provisions mandate
otherwise, with the exception being an intervening
application. Applications for anticipatory bail are
expected to be disposed of within a period of six weeks
with the exception of any intervening application."
18. It was observed that Section 436-A of the Cr.P.C. has been
inserted by Act No.25 of 2005, and has got a laudable object
behind it, particularly from the point of view of granting bail.
The provision draws the maximum period for which an
undertrial can be detained. The period has to be reckoned
with the custody of the accused during the investigation,
inquiry and trial. Under this provision, when a person has
undergone detention for the period extending to one half of
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the maximum period of imprisonment specified for that
offence, he shall be released by the Court on his personal
bond with or without sureties. The word "shall" clearly
denotes the mandatory compliance of this provision.
19. Further Section 439 confers a power upon the High Court or
the Court of Sessions regarding the bail. This power has to be
exercised against the order of the Judicial Magistrate
exercising the power under Section 437 of the Cr.P.C. or in a
case triable by the Court of Sessions exclusively. It may be
relevant, at this juncture, to note Sections 438 and 439 of the
Cr.P.C. for ready reference.
"438. Direction for grant of bail to person
apprehending arrest . --(1) When any person has
reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence,
he may apply to the High Court or the Court of Session
for a direction under this section; and that Court may, if
it thinks fit, direct that in the event of such arrest, he
shall be released on bail.
(2) When the High Court or the Court of Session makes a
direction under sub-section (1), it may include such
conditions in such directions in the light of the facts of
the particular case, as it may think fit, including--
(i) a condition that the person shall make himself
available for interrogation by a police officer as and
when required;
(ii) a condition that the person shall not, directly or
indirectly, make any inducement, threat or promise to
any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or
to any police officer;
(iii) a condition that the person shall not leave India
without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-
section (3) of section 437, as if the bail were granted
under that section.
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(3) If such person is thereafter arrested without warrant
by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest
or at any time while in the custody of such officer to give
bail, he shall be released on bail; and if a Magistrate
taking cognizance of such offence decides that a warrant
should be issued in the first instance against that person,
he shall issue a bailable warrant in confirmity with the
direction of the Court under sub-section (1).
(4) Nothing in this section shall apply to any case
involving the arrest of any person on accusation of
having committed an offence under sub-section (3) of
section 376 or section 376AB or section 376DA or
section 376DB of the Indian Penal Code (45 of 1860).]"
439. Special powers of High Court or Court of
Session regarding bail.--(1) A High Court or Court of
Session may direct,--
(a) that any person accused of an offence and in custody
be released on bail, and if the offence is of the nature
specified in sub-section (3) of section 437, may impose
any condition which it considers necessary for the
purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session
shall, before granting bail to a person who is accused of
an offence which is triable exclusively by the Court of
Session or which, though not so triable, is punishable
with imprisonment for life, give notice of the application
for bail to the Public Prosecutor unless it is, for reasons
to be recorded in writing, of opinion that it is not
practicable to give such notice.
Provided further that the High Court or the Court of
Session shall, before granting bail to a person who is
accused of an offence triable under sub-section (3) of
section 376 or section 376AB or section 376DA or
section 376DB of the Indian Penal Code (45 of 1860),
give notice of the application for bail to the Public
Prosecutor within a period of fifteen days from the date
of receipt of the notice of such application.
(1A) The presence of the informant or any person
authorised by him shall be obligatory at the time
of hearing of the application for bail to the person under
sub-section (3) of section 376 or section
376AB or section 376DA or section DB of the Indian
Penal Code (45 of 1860).
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(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter
be arrested and commit him to custody."
20. Having noted the first and second proviso to sub-section (1)
of Section 439 of the Cr.P.C, it has been noted by the Apex
Court therein that the proviso makes it obligatory to give
notice of the application for bail to the Public Prosecutor, on
the set of offence mentioned thereunder, and to the
informant or any other person authorised by him, as stated in
sub-section (A) of Section 139, at the time of hearing the
application for bail. It is observed that this being the mandate
of the legislation, the High Court and the Court of Sessions
shall see to it that it is being complied with.
21. Interpreting provisions of Section 449 of the Cr.P.C., it was
further observed that the amount of every bond executed
under Chapter XXXIII is to be fixed with regard to the
circumstances of the case and shall not be excessive. The
conditions imposed shall not be mechanical and uniform in all
cases. It is a mandatory duty of the Court to take into
consideration the circumstances of the case and satisfy itself
that it is not excessive. Imposing a condition which is
impossible of compliance would be defeating the very object
of the release. This is a salutary provision, which has to be
kept in mind. Reasonableness of the bond and surety is
something which the Court has to keep in mind whenever the
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same is necessitated. Sections 436, 437, 438 and 439 of the
Cr.P.C. are to be read in consonance. While exercising the
power under Section 88 of the Cr.P.C also, the said factum
has to be kept in mind.
22. Having exhaustively gone through the decisions of the Apex
Court and the provisions of Sections 438 and 439 of the
Cr.P.C., we find that the Rules framed by the High Court of
Gujarat in the matter of presentation of bail applications are
in consonance with and in the spirit of the legislative
mandate of early disposal of the bail application. Rule 335, as
contained in Chapter XXVI of the Gujarat High Court
Rules'1993 reads as under:-
"335. Application for bail to be served on Government
Pleader.--In every application for grant of bail, a copy of
application shall be served upon the Government Pleader
in cases arising from the Ahmedabad City area at least
24 hours before the application is heard by the Court
and in cases from the mofussil 48 hours before such
hearing."
23. It provides that every application for grant of bail shall be
served upon the Government Pleader, within the time period
provided therein, before the application is heard by the
Court. This provision is scrupulously being followed and no
application for bail is received by the Registry without the
proof of the advance notice of the application in the Office of
the Public Prosecutor. Once the advance notice is being given
to the Office of the Public Prosecutor, it is under obligation to
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obtain instructions from the concerned police station about
the stage of investigation, inquiry or from the Court about the
stage of the trial. The proviso to sub-section (1) of Section
439 of the Code, which prescribes for the notice of an
application for bail to be served to the Public Prosecutor,
thus, stands complied with.
24. Sub-Section (1A) of Section 438 of the Code, where the
provision is to give the notice of seven days, together with
the copy of such order is to be served on the Public
Prosecutor and the Superintendent of Police, with a view to
give Public Prosecutor a reasonable opportunity of being
heard when the application is finally heard by the Court, also
stands complied with the requirement of advance notice to
the Office of the Public Prosecutor under Rule 335 of the
High Court Rules, which is scrupulously being followed in the
High Court.
25. We, thus, find that once the advance notice of the bail
applications of all categories is served in the office of the
learned Public Prosecutor before filing of the same in the
Registry, there is no reason to issue Rule to the Public
Prosecutor. Moreover, the Office of the Public Prosecutor
gets sufficient time to seek instructions as the bail
applications are listed in the High Court by the auto-listing
mode on the 3rd day of the date of registration, which is made
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in a day or two of the date of filing, if there is no office
objection.
26. The order dated 16.11.2022 for issuance of Rule in the bail
application filed by the petitioner herein even after recording
of the factum of waiver of service of notice by the learned
Additional Public Prosecutor, in a routine manner, is found to
be contrary to both the legislative mandate as also the law
laid down by the Apex Court in the case of Satender Kumar
Antil (supra). This practice of issuance of Rule and posting
the bail applications after a period of one week, two weeks or
three weeks for final hearing without adverting to the merits
of the same on the date of its presentation, is to be curbed
forthwith.
27. While hearing this matter, we have been informed that in a
meeting on the administrative side of the Hon'ble the Chief
Justice, learned Advocate General and learned Public
Prosecutor, it has been decided that the Office of the Public
Prosecutor will not insist on issuance of "Rule" or "Rule Nisi"
in bail matters. We have also been informed that this practice
of issuance of Rule, continued in this Court for a long time
has been done away with. The Courts hearing bail
applications have now stopped issuing Rules in bail matters.
We, therefore, do not find any reason to issue any directions
or guidelines in the matter and only deem it fit and proper to
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record that the bail applications are to be dealt with by every
Court as per the law of land, in the spirit of the Constitutional
and legislative mandate, strictly in compliance of the decision
of the Apex Court in the case of Satender Kumar Antil
(supra), through-out the State including the High Court. The
Procedure in the matter of disposal of the bail applications
shall be followed scrupulously in accordance with the law laid
down by the Apex Court in the case of Satender Kumar
Antil (supra) and the mandate therein that bail applications
ought to be disposed of within the period of two weeks and
applications for anticipatory bail are to be disposed of within
the period of six weeks, subject to the exceptions of there
being an intervening application or if the special provisions
mandate otherwise.
28. The Magistrate's Court and the Court of Sessions, i.e. the
trial Courts are mandated to strictly adhere to the law laid
down by the Apex Court in the case of Satender Kumar
Antil (supra) and Rule 25A of the Criminal Manual, 1977,
inserted by way of Notification No.C.2001/93 dated
24.05.2022.
29. Coming to the second point of submission, where it was
argued that during the pendency of the bail application filed
by the person made accused, if chargesheet is filed by the
Investigating Officer, the applicant accused is relegated to
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approach the trial Court and this Court refuses to proceed
with the bail applications on merits, we may note that no data
of any such instance has been produced before us. However,
taking note of the provisions of Sections 438 and 439 of the
Code, we deem it proper to note that indisputedly the
jurisdiction as conferred on the High Court and the Court of
Sessions by Sections 438 and 439 of the Cr.P.C., is
concurrent. It is only a matter of practice that the applicant is
required to approach the Court of Sessions in the first
instance and if relief is denied, he approaches the High Court
under Sections 438 or 439, as the case may be. The High
Court does not act as a superior Court sitting in appeal or
revisional jurisdiction over the order of the Court of Sessions,
but because the Superior Court can still exercise its own
jurisdiction independently. (Reference the opinion of the High
Court of Orissa in the case of Preeti Bhatia vs. Republic of
India,(2015) 1 OLR 662, relied upon by the counsel for the
petitioner).
30. It was noted by the High Court of Orissa therein that the fact
that the application seeking bail before the High Court is
accompanied by an order of the Court of Sessions rejecting a
similar prayer, it does not mean that the High Court is
required to look into the correctness of the decision of the
Court of Sessions, rather the idea is to provide the Superior
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Court with an advantage of apprising itself with the grounds
of considerations, which prevailed with the Court of Sessions
in taking the view which it did. It was noted therein that
where the bail application under Section 439 of the Cr.P.C. is
rejected by the Court of Sessions during the course of
investigation and the applicant applies for bail to the High
Court and by the time of consideration of the bail application,
chargesheet is filed, the applicant, if he/she so likes, has an
option to withdraw the bail application from the High Court
to move the Court of Sessions again, but if he/she chooses not
to do the same and to pursue the bail application pending
before the High Court, it is to be decided on its own merits as
the High Court can take note of the factum of submission of
the chargesheet and the materials which have come against
the applicant in the charge-sheet. It was further noted that
there cannot be any rational to show the door of the Court of
Sessions again to the applicant, in such a case and the bail
application would be maintainable before the High Court.
31. A five Judges Bench of the Allahabad High Court in Ankit
Bharti vs. State of Uttar Pradesh and others, [Criminal
Misc. Application No.1094 of 2020], 2020 ILR 3-5 ALL
1281, was dealing with the question as to whether the
anticipatory bail applications shall be entertained by the High
Court directly. It was noted therein that the jurisdiction as
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conferred on the High Court and the Court of Sessions by
Section 438 is concurrent and the discretion and the power of
the High Court to entertain an application directly is one,
which is liable to be exercised according to the facts and
circumstances of each case. It was noted that there may be
cases in which it may be considered by the High Court to be
proper to entertain an application without the applicant
having moved the Court of Sessions initially. Similarly, there
may be cases in which the Court may feel justified in asking
the applicant to move the Court of Sessions or to refer the
matter to that Court. In any case, all depends upon the
discretion of the Judge hearing the case, it must be left to the
Judge to exercise the discretion vested in him by the Statute
depending upon the facts obtained in a particular case. It is
open for the learned Judge to assess the facts of each case to
form an opinion whether special circumstances existed for
not entitling the applicant to approach the High Court
directly. There can be no exhaustive detail of general
exposition of circumstances in which the applicant may be
held entitled to approach the High Court, directly.
32. Noticing the above, we may record that there cannot be any
dictum that may guide the exercise of discretion vested in the
High Court under Sections 438 or 439 of the Cr.P.C. The
discretion left unfettered by the legislature must be
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recognized as being available to be exercised depending upon
the facts and circumstances of the particular case. It is
neither permissible nor advisable to us to lay down any strict
procedure or issue a mandate to the learned Judge dealing
with the bail applications under Sections 438 or 439 of the
Cr.P.C to adopt a fixed approach in the matter of pending bail
applications where chargesheets have been filed. In a given
case, the Court may feel justified in asking the applicant to
move the Sessions Court or refer the matter to that Court and
it would depend upon the discretion of the Judge hearing the
case. However, we find it just and proper to add a word of
caution that any routine practice of relegating the applicant
to approach the Court of Sessions where the chargesheet is
filed during the pendency of the bail application before the
High Court, has not got our seal of approval with what we
have stated above.
33. We may further clarify that, however, it would not be open
for the Public Prosecutor to argue before the High Court that
since the chargesheet is filed during the pendency of the bail
application, the applicant has no option but to approach the
Sessions Court. It is the choice of the applicant to loose a
chance to approach the trial Court, because otherwise, the
applicant will have two chances, first to approach the
Sessions Court and then to the High Court. No mandate in
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this regard, as such, can be issued in the matter of exercise
of discretionary power of the Courts dealing with the bail
applications under Sections 438 and 439 of the Cr.P.C.
34. In the end, we dispose of the present petition with the
observation that all Courts in the State of Gujarat including
the High Court are obliged to scrupulously follow the
directions of the Apex Court in the case of Satender Kumar
Antil (supra), while dealing with the bail applications under
Sections 437, 438 or 439 of the Cr.P.C., as the case may be.
This order be circulated by the Registrar General, High Court
of Gujarat to all concerned Courts in the State of Gujarat.
35. The petition stands disposed of accordingly.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
SUDHIR
