Dispose Of Bail Applications Within 2 Weeks And Applications For Anticipatory Bail Within 6 Weeks: Gujarat HC Directs Trial Courts
The Gujarat High Court has directed the Trial Courts of the State to dispose of bail applications within two weeks and anticipatory bail applications within six weeks.
The Court was dealing with a petition that raised an important issue pertaining to the procedure being adopted by the High Court as a long practice in issuance of “Rule” in bail matters and the applications filed under Sections 438 and 439 of the Criminal Procedure Code (CrPC).
A Division Bench comprising Chief Justice Sunita Agarwal and Justice Aniruddha P. Mayee ordered, “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.”
The Bench further directed that 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 vs. Central Bureau of Investigation and another, (2022) 10 SCC 51 and Rule 25A of the Criminal Manual, 1977, inserted by way of Notification No.C.2001/93 dated May 24, 2022.
Senior Advocate Aim Pandya represented the applicant while Addl. Public Prosecutor KM Antani represented the respondent.
Brief Facts -
The applicant/petitioner was aggrieved by the pendency of the bail application, in which an order was passed issuing Rule returnable on November 28, 2022 when the Additional Public Prosecutor already waived service of notice of Rule for and on behalf of the respondent-State. It was stated in the writ petition presented on August 25 last year that the bail application was not decided even after 27 adjournments without the petitioner’s fault. The issues that were agitated by the senior counsel for the petitioner were:
(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.
(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.
The High Court in the above regard said, “… 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 in a day or two of the date of filing, if there is no office objection.”
The Court further said that the 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.
“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 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”, it observed.
The Court noted that the jurisdiction as conferred on the High Court and the Court of Sessions by Sections 438 and 439 of CrPC, is concurrent and 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. It said that 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.
“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. … 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 recognized as being available to be exercised depending upon the facts and circumstances of the particular case”, it also noted.
Furthermore, the Court cautioned 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 the court’s seal of approval.
“… 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”, it concluded.
Accordingly, the High Court disposed of the petition.
Cause Title- Bhavesh Baldevbhai Desai/Rabari v. State of Gujarat
Appearance:
Applicant: Senior Advocate Asim Pandya, Advocates Gaurav Vyas and Shyam M Shah.
Respondent: Addl. Public Prosecutor KM Antani
