Gujarat High Court: In a special criminal application whereby the issue of long practice of issuance of ‘Rule’ or ‘Rule Nisi’ in bail matters, was raised, the Division Bench of Sunita Agarwal, CJ. and Aniruddha P. Mayee, J. directed all the Courts in the State including the High Court to scrupulously follow the directions laid down in Satender Kumar Antil v. CBI, (2022) 10 SCC 51, while dealing with the bail applications under Sections 437, 438 or 439 of the CrPC. The Court also said that practice of issuance of ‘Rule’ and posting the bail applications after weeks for final hearing without adverting to the merits of the application on the date of its presentation, should be curbed immediately.
In the matter at hand, the applicant was aggrieved by the pending bail application and that the bail application had not been decided even after 27 adjournments without the applicant’s fault. The applicant’s case was that the practice of issuance of “Rule” or “Rule Nisi” and posting bail matters after two or three weeks for final hearing was contrary to the provisions of the Gujarat High Court Rules, 1993 (“the Rules, 1993) and the Rules governing the procedure of the Court. The applicant contended that such practice was causing prejudice to the right of the applicants to seek release on bail at the earliest. The applicant sought guidelines for expeditious disposal of bail matters in consonance with Sections 438 and 439 of the Code of Criminal Procedure, 1973 (CrPC) and in the spirit of Article 21 of the Constitution of India.
Decision
The Court said that the pendency of a bail application beyond a reasonable time period is contrary to the constitutional scheme incorporated in the procedure laid down under the CrPC. The Court also said that the liberty of an individual 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 Court referred to Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, wherein, the need to maintain the balance between individual liberty and societal order while exercising the power of arrest was emphasized.
The Court reiterated that personal liberty is an important aspect of constitutional mandate and merely, because an arrest can be made because it is lawful, does not mandate that the arrest must be made and that a distinction must be made between the existence of the power to arrest and the justification for exercise of it. If an arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.
Further, the Court referred to Satender Kumar Antil (supra) wherein, the object of bail was discussed as being neither punitive nor preventive. The Court noted that it was laid down that the 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 and that the Courts owe more than verbal respect to the principle that the punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
The Court perused Section 438 and 439 of the CrPC which provides for ‘Direction for grant of bail to person apprehending arrest’ and ‘Special powers of High Court or Court of Session regarding bail’ respectively. The Court noted that in Satender Kumar Antil (supra) it was said that Sections 436, 437, 438 and 439 of the CrPC are to be read in consonance. The Court added that the Rules framed by the Court 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. The Court also perused Rule 335 of the Rules, 1993 which provides for- ‘Application for bail to be served on Government Pleader’. The Court said that the Rule 335 of the Rules, 1993, 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, was scrupulously being followed and no application for bail was received by the Registry without the proof of the advance notice of the application in the Office of the Public Prosecutor.
The Court noted that Section 438(1A) of the CrPC , 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 was scrupulously being followed in the High Court.
Thus, the Court said that once the advance notice of the bail applications of all categories is served in the office of the Public Prosecutor before filing of the same in the Registry, there was no reason to issue ‘Rule’ to the Public Prosecutor. Further, the Court said that the Public Prosecutor’s Office 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 in a day or two of the date of filing, if there is no office objection.
For the matter at hand, the Court said that the issuance of ‘Rule’ in the order dated 16-11-2022 for the applicant’s bail application even after recording of the factum of waiver of service of notice by the Additional Public Prosecutor, in a routine manner, was contrary to both the legislative mandate and the law laid down by the Supreme Court in Satender Kumar Antil (supra). The Court said that such 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, should be curbed immediately.
Regarding the directions for expeditious disposal of bail matters, the Court noted that the practice of issuance of ‘Rule’ or ‘Rule Nisi’, which continued in the Court for a long time, was done away with. Therefore, the Court refused to issue any directions or guidelines in the matter and said that the bail applications should 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 Supreme Court in Satender Kumar Antil (supra), through-out the State including the High Court.
On the aspect of procedure for disposal of the bail applications, the Court said that law laid down in Satender Kumar Antil (supra) shall be followed, 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. Thus, the Court directed that all Courts in the State including the High Court are obliged to scrupulously follow the directions laid down in Satender Kumar Antil (supra), while dealing with the bail applications under Sections 437, 438 or 439 of the CrPC, as the case may be.
[Bhavesh Baldevbhai Desai v. State of Gujarat, R/Special Criminal Application (For Challenging Vires/Ultra Vires) No. 14040 of 2023, Decided on: 12-02-2024]
Advocates who appeared in this case :
For the applicant: Senior Advocate Asim Pandya, Advocate Gaurav Vyas, Advocate Shyam Shah
For the respondent: Additional Public Prosecutor KM Antani
Buy Code of Criminal Procedure, 1973 HERE
Buy Constitution of India HERE
