February 22, 2025

Supreme Court's 2022 Order On Bail Not Being Followed By Trial Courts

By Sunil Garodia
First publised on 2023-03-22 08:12:08

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

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The Supreme Court is furious and it should be. Trial courts all over the country, public prosecutors and investigating agencies are not following its July 2022 order which mandated that courts be liberal and grant bail where custody was not needed. This was to be specifically adhered to in cases which the law prescribed a punishment of less than seven years in jail for the alleged crime. The apex court had also held that if the accused has not been arrested during the probe and was cooperating in the investigation, there was no need to arrest him on filing of the chargesheet.

The attention of the apex court was drawn to the fact that many trial courts in UP passed orders that were in gross violation of its 2022 order. It was also informed that prosecuting agencies and public prosecutors also took a stand that was contrary to the 2022 order. The bench of Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah and Aravind Kumar was furious and said that these trial court judges needed to be sent to academies for "upgrading their knowledge". It also said that it would be constrained to haul up public prosecutors and investigating agencies if they took such contrary stand.

The 2022 guidelines of the Supreme Court were comprehensive. They categorised offences under four heads and "offences punishable with imprisonment of 7 years or less not falling in category B & D" (where category B was  for offences punishable with death, imprisonment for life, or imprisonment for more than 7 year and category D was for economic offences not covered by Special Acts) was under the head A. This was treated with lesser gravity. In such cases, the Supreme Court had directed that after filing of the chargesheet, ordinary summons must be issued at the first instance where the party could even be represented by a lawyer. If the accused or his/her lawyer do not appear despite service of summons, then a bailable warrant for physical appearance may be issued. Again, if the accused fails to appear despite issuance of bailable warrant, a non-bailable warrant will be issued. Even such non-bailable warrant may be converted by the Magistrate into a bailable warrant/summons without insisting on physical appearance of the accused, if the accused moved an application before execution of the non-bailable warrant on an undertaking to appear physically on the next date of hearing. Once the accused appeared in Court, bail applications may be decided without taking such accused into custody or by granting interim bail till the bail application is decided. This clearly showed that the Supreme Court wanted arrest to be the last resort and trial court judges were expected to be liberal in granting bail in such cases. It also showed that the apex court wanted public prosecutors and investigating agencies not to insist on arresting the accused in such cases or place hurdles in the bail process.

But the ground reality is completely different, as the Supreme Court found out and which led to its anger. The apex court said that trial courts were passing detention orders in a mechanical way and denying bail in violation of the Supreme Court's 2022 order. This denies liberty to the accused and turns the principle 'bail is rule, jail is an exception', as laid down by the apex court in the landmark judgment of State of Rajasthan v. Balchand alias Baliya in 1978 and reaffirmed in many orders thereafter, on its head.

The Supreme Court must initiate the process through which trial court judges are periodically required to update their knowledge, especially regarding Supreme Court judgments. It should also carry out its threat to haul up public prosecutors and investigating agencies for going against Supreme Court orders in such cases.