Rajasthan High Court - Jodhpur

Gagandeep @ Goldy vs State Of Rajasthan on 1 August, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Application No. 58/2022 in S.B. Criminal Misc. Interim Bail Application No.6821/2021

Rajasthan High Court through Registrar (Writs), Rajasthan High Court, Jaipur.

---------Applicant

Gagandeep @ Goldy S/o Sh. Naresh Kumar Arora, Aged About 32 Years, 6/j/32, Jawahar Nagar, Agrasen Chowk, Sri Ganganagar, Dist. Sri Ganganagar. (Lodged In Central Jail, Sri Ganganagar).

----Petitioner (Bail applicant) Versus

State Of Rajasthan, Through Pp

-------Respondent

For Applicant(s) : Dr. Sachin Acharya, Sr. Advocate assisted by Mr. Chayan Bothra For Respondent(s) : Mr. Gaurav Singh, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 22/07/2022 Pronounced on 01/08/2022

1. This Criminal Misc. Application has been preferred under

Section 482 read with Section 439 Cr.P.C praying for the following

reliefs:-

"It is, therefore, most respectfully and humbly prayed that the application may kindly be allowed and the order dated 18.06.2021 may be recalled to the extent of the prescription of directions/guidelines for tabulation of information while deciding the interim/temporary bail application(s).

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Further, the Rajasthan High Court registry may kindly be dispensed with the requirement to circulate the order dated 18.06.2021 to the District/Sessions Court across the state as well as other police authorities."

2. This above-numbered interim bail application was

preferred by the bail applicant Gagandeep @ Goldy under

Section 439 Cr.P.C. seeking his interim release on account of

illness of his mother, in connection with F.I.R. No. 121/2019 for

the offences punishable under Section 8/22 N.D.P.S. Act, 1985

lodged at Police Station Suratgarh City, District Sriganganagar.

3. Dr. Sachin Acharya, learned Senior Counsel assisted by

Mr.Chayan Bothra, appearing on behalf of the present applicant

submitted that the matter came up for consideration before this

Court on 18.06.2021, and on that date, this Court while allowing

the interim application was pleased to issue certain directions/

guidelines to be followed by the learned Trial Court below while

disposing of interim/temporary bail applications.

3.1 Relevant portion of the aforesaid said order, as referred to

by the leaned Senior Counsel is reproduced as under:-

"13. Thus, this Court directs that all the learned trial courts in the State shall, while allowing or rejecting the interim/temporary bail application(s) of any accused person, seek and compile, in a tabular form, all the necessary details in a comprehensive manner.

The parameters, which need to be observed, as per the applicability in the facts and grounds of the interim/temporary bail application(s), are as follows:

(a) Previous criminal antecedent(s) of the concerned petitioner.

(b) Whether the petitioner has any background of being a history-sheeter and/or hardcore offender.

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(c) Whether any previous interim/temporary bail(s) have been granted to the concerned petitioner, and if granted, for how long, and also whether the concerned petitioner surrendered in time.

(d) The concerned Jail authorities shall be required to provide a report regarding conduct of the concerned petitioner in Jail alongwith the schedule of previous releases of the concerned petitioner on interim/temporary bail, if any.

(e) The details regarding the immediate family of the concerned petitioner shall also be noticed, so that the requirement of the petitioner can be adjudged.

(f) In regard to the assessment of custodial release, in case of illness of the concerned petitioner or his family member, the details to be provided, shall include the duration of treatment, operation or any surgical intervention, if required. The date(s) of operation or any such surgical intervention, if required, shall also be provided. The list of medical record produced by the concerned petitioner is also required to be furnished. The verification of the medical record shall be required to be made by a Government Doctor.

(g) The details of the family member(s) of the concerned petitioner shall also be required to be attested by the concerned Patwari or Gram Sewak, and any other details which are necessary for the grounds, on which the concerned petitioner is seeking interim/temporary bail.

(h) Any other information, which is relevant to the grounds mentioned in the interim/temporary bail application(s).

Such compilation of details shall be mandatory only if the perspective of the grounds mentioned in the interim/temporary bail application(s) are connected to it."

14. The necessity of giving the aforesaid directions was to enable this Court to precisely decide the duration, schedule, requirement and feasibility of releasing the petitioner efficaciously, which shall enable him to complete the task at hand, be it last rites of a close family member or any critical treatment for himself or his family member, or any other eventuality.

15. The aforementioned comprehensive tabular chart, incorporating all the details, as directed in this order, shall be the requirement of disposal of any interim/temporary bail application by the learned courts below in the State of Rajasthan. It is also directed that the learned Public Prosecutors all over the State shall also use their good offices and make all endeavour to procure and collect the aforementioned detailed information well in advance in every case of interim/temporary

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bail, so as to enable the courts to have a definite and correct information in regard to the case of interim/temporary bail.

16. Thus, with a view to have a compilation of all the aforementioned necessary and complete information for the purpose of synchronizing the details in regard to interim/temporary bail application(s) to enable the courts to make a quick and effective adjudication thereof, this Court further directs that a certified copy of this order shall be conveyed by the Registry of this Hon'ble Court to all learned District & Sessions Judges of the State, who shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are hearing the bail applications. The certified copy of this order shall also be conveyed to the Director (Prosecution) of the State, for necessary compliance, amongst the learned Public Prosecutors all over the State of Rajasthan. A certified copy of this order shall also be sent to the Director General of Police, Rajasthan as well as the Director General (Prisons), Rajasthan, for necessary compliance.

17. This Court also directs that if any interim/temporary bail application is preferred directly before this Court, then it shall be the duty of the learned counsel for the concerned petitioner to provide the necessary information, as per the aforesaid direction, well in advance to the learned Public Prosecutor, and in case, such advance information is not provided by learned counsel for the concerned petitioner, then the learned Public Prosecutor shall have a right to seek an adjournment in the concerned case, until such information comes on record.

18. The Registry of this Hon'ble Court shall file compliance of the aforesaid directions before this Court on 27.08.2021, when the matter is otherwise ordered to be listed."

4. Learned Senior Counsel further submitted that while the

above mentioned directions in the aforementioned order seem to

be aimed at quick and effective adjudication of interim/temporary

bail application(s), certain practical difficulties may crop up in

compliance of the same.

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4.1 Learned Senior Counsel also submitted that given the ever

increasing pendency in the learned Trial Courts, coupled with lack

of necessary infrastructure as well as court staff and personnel at

various places, compilation of the information in the tabular form

as mandated by the order impugned may not be feasible as the

nature of information/data sought to be compiled is of a very

exhaustive nature, which would involve the procurement and

examination of a variety of Court records, as well as police and jail

records, the procurement and examination of which require both

time and manpower.

4.2 Learned Senior Counsel also submitted that the compilation

and ascertaining of such details, would not only promote red-

tapism, but also would delay the disposal of such cases which

would defeat the very purpose of such compilation. Furthermore,

the exercise of such compilation would only be further delayed if

the accused is from outside State.

4.3 Learned Senior Counsel further submitted that the right to

interim bail is sought in emergency situations, and compilation of

such information would frustrate the very purpose of seeking

interim bail, and in turn, would violate the fundamental rights of

the bail applicant(s) concerned, as envisaged under Article 21 of

the Constitution of India.

4.4 Learned Senior Counsel also submitted that the learned

Courts below may adopt such directions in a straight-jacket

manner which shall not serve the purpose of quick and effective

justice as envisaged by this Hon'ble Court, and the guidelines

contained in the order under recall shall hamper the inherent

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discretion of the learned Courts below, while disposing of interim

bail applications, necessary to be exercised in the given facts and

circumstances of a particular case.

5. Learned Senior Counsel placed reliance on the following

judgments in support of the contentions so made;

State of Uttar Pradesh and Ors. Vs. Subhash

Chandra Jaiswal and Ors. (2017) 5 SCC 163

"The High Court, as the impugned order reflects, proceeded to issue certain directions. They are reproduced below: In our view, time has come where State should be asked to show its real sincerity required in the field not only for effective registration of cognizable offences but also proper and well studied investigation and effective prosecution to ensure appropriate punishment to guilty persons. Since, even District level Officers, we find, are not competent enough to take appropriate steps in this regard and nothing can be done unless top authorities take steps, we direct Principal Secretary (Home), U.P., Lucknow and Director General of Police, U.P., Lucknow to consider over following aspects and submit their reply through personal affidavits, by 16th September, 2016:

(i) Work of investigation of crime and prosecution be separated from normal policing or prevention of crime and other works, by constituting separate specialized cadre managed by officials well trained in respective fields. These officials be given due status, designation and appropriate perks and facilities so that State may attract deserving, talented and meritorious persons, willing to work with all sincerity in respective wings. Both these wings be separately headed by independent officers of the level of Director General so that one wing may not get influenced by another.

(ii) The prosecution wing after separation, should be headed by an Officer of Secretary level, taken on deputation from Higher Judicial Services, so that it may function independently and effectively.

(iii) Whether sanctioned strength of police for maintaining law and order and normal police functions including prevention of crime, investigation and prosecution is sufficient? If not, what is actual requirement for the said purposes and why required number of posts were/are not created by Government so that problem of law and order in State is effectively managed?

(iv) What is actual number of sanctioned strength in the respective fields of Police Department and what is normal period of time taken for filling existing vacancies?

(v) Whether any existing qualification or specific eligibility conditions are prescribed for appointing Investigating Officer? If not,

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why such conditions should not be prescribed considering the fact that in these days, investigation process involves multifaceted scientific, technical and advanced techniques requiring an efficient and well conversant person to deal with all such techniques etc.

(vi) How many cases are pending for investigation in the State, older than six months, and what is the actual number of Investigating Officers available. These figures shall be supplied in the form of a chart, district-wise.

(vii) Why Forensic Labs with modern equipments and sufficient staff be not established at every District Headquarters. State should also provide adequate staff looking to the size of District, general trend, number of criminal cases reported every year and nature of cases, normally reported in that area and maintain it regularly so that Investigating Officers may be able to get Forensic test/opinion/report with the utmost expeditiousness and as early as possible.

(viii) A report shall be submitted to this Court obtained from each and every Autopsy Centre as to what facilities are available thereat, how many Postmortem/Autopsy they are conducting every day and show preservation of body organs etc. is being maintained. (The officers submitting report shall bear in mind that veracity of report, whatever is submitted, may got cross-checked by Court through Judicial Officers and, therefore, there should be no attempt to submit a casual and shallow report but it should be true and complete report in all respect.) In case affidavits, as above, are not filed by date mentioned above, the two Officers namely, Principal Secretary (Home), U.P., Lucknow and Director General of Police, U.P., Lucknow shall appear before this Court on next date.

On a perusal of the aforesaid directions, we have no trace of doubt in our mind that the High Court in a case of the present nature could not have issued such directions. In fact, as we perceive, some of the directions are in the field of exclusive domain of the Legislature.

Having noted the aforesaid submissions, it is necessary to state that it is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter. The concept, what is thought of or experienced cannot be ingrained or engrafted into an order solely because such a thought has struck the adjudicator. It must flow from the factual base and based on law. To elaborate, there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner. To say the least, some of the directions issued are not permissible and

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all of them are totally unrelated to the case before the High Court. We are constrained to say that the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it.

Some of the directions, as we perceive, are in the sphere of policy. A court cannot take steps for framing a policy. As is evincible, the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it.

The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it."

Ganesh Patel Vs. Umakant Rajoria S.L.P. (Crl.) No. 9313 of 2021, decided by the Hon'ble Supreme Court on 07.03.2022:

"This application for recall of the order was maintainable as it was an application seeking a procedural review, and not a substantive review to which Section 362 of the Code of Criminal Procedure, 1973, would be attracted. [Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Ors. 1980 (supp) SCC 420]. On the aspect of the difference between recall and review and when an order of recall can be passed reference can be made to Budhia Swain and Others v. Gopinath Deb and Others, (1999) 4 SCC 396. The High Court was therefore right in recalling the order and listing MCRC No. 6576/2017 for hearing and decision on merits."

6. Learned Public Prosecutor opposes the application.

7. Heard learned counsel for both parties and, perused the

record of the case and the judgments cited at the Bar.

8. This Court observes that the directions/guidelines issued to

the learned Trial Courts below, as observed by the Hon'ble Apex

Court in State of U.P. and Ors. Vs. Subhash Chandra Jaiswal

and Ors. (supra), flow from the factual matrix of the case,

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wherein it was the claim of the applicant-petitioner who sought

interim bail citing the medical ailment of his mother.

9. This Court further observes that the directions/guidelines so

issued by this Court vide the order under recall was with the view