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There appear to be systematic problems with lower courts in Haryana in the exercise of their power to grant bail, as the Punjab and Haryana High Court, in two of its recent orders, sought an explanation from Sessions Judges over their apparent goof-ups in deciding bail matters, while in another order, the High Court directed to Chandigarh Judicial Academy to prepare lower court judges about the manner in which they must decide bail matters, reports VIVEK GUPTA from Chandigarh.
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WHILE commenting on a judicial order passed by Additional Sessions Judge, Gurugram in response to an anticipatory bail plea by an accused arrested on the charge of dacoity, Justice Arvind Singh Sangwan of the Punjab and Haryana High Court stated that it is a well-settled that while passing on order or a judgment, a judge must take note of multiple factors such as the facts of the FIR, the role of the person seeking bail, his antecedents and the gravity of offence committed, and only then form an opinion in the light of guidelines given by numerous Supreme Court judgments regarding the granting or dismissing of bail applications.
In his order dated July 8, Justice Sangwan observed:
"The manner in which the order has been passed only reflects that the Additional Sessions Judge, Gurugarm has noticed that since the offence is under Section 395 of the IPC, which is a serious offence, therefore, custodial interrogation is required. But on the face of it, this order is passed against the settled norms." [sic]
Justice Sangwan did not stop there. He went on to direct the Director of the Chandigarh Judicial Academy to "look into the matter and issue appropriate directions to the judicial officers about the manner by which, while passing an order on the bail application, the facts in the FIR need to be reflected before forming an opinion whether bail/anticipatory bail is to be granted or declined."
Earlier this week, Justice H.S. Madaan of the same High Court expressed surprise in an order in a case in which he found that a goof-up by a lower court in Haryana's Panchkula caused an accused to stay behind bars for over one year despite being granted bail.
The fact of the matter was that the Chief Judicial Magistrate (CJM), Panchkula had, on February 13, 2020, allowed the bail plea of the petitioner. However, this fact did not come to the notice of the petitioner or his counsel. He then moved an application for regular bail before the Sessions Judge, Panchkula on September 3, 2020, which was declined on September 15, 2020.
Hearing the bail plea of the accused now filed at the High Court, Justice Madaan termed it a "very peculiar and unusual situation", since a perusal of the order passed by the CJM Panchkula shows that it was passed in the presence of the petitioner's counsel.
Justice Madaan recorded that it was strange that neither the petitioner nor his counsel would come to know about the order granting regular bail to him, and that the Sessions Judge, Panchkula was approached for bail.
Further, he was astonished that the Sessions Judge disposed of the bail application without verifying or going through the CJM's order. This, as per Justice Madaan, "should not have been done" as the petitioner had already secured bail from the CJM.
He further noted that if either the petitioner's advocate or the public prosecutor would have brought this fact to the Sessions Judge's notice, this predicament could have been avoided. But they failed to do so.
He recorded that it was incumbent upon the police authorities to assist the Sessions Judge properly and intimate him on the order passed by the CJM. He noted that even the reply to the bail application filed by the prosecution before the Sessions Judge failed to mention this fact.
Justice Madaan lamented that not only had there been wastage of valuable time of both the Sessions Judge and the High Court in this scenario, but the petitioner himself remained imprisoned for a further sixteen months.
He concluded by directed the Sessions Judge to furnish an explanation "as to how this situation has cropped up", after informing the Director, Prosecution, Haryana, and the Director-General of Police (DGP), Haryana. He also directed the state counsel to bring this order to the notice of the latter two in order to fix accountability for the fault.
Another unusual case came to the notice of Justice Madaan earlier this month in which a Sessions Judge in Haryana's Sirsa granted bail to an accused in a narcotics case even as the matter of bail was pending before the High Court.
The matter came to light when the accused applied to the High Court for the withdrawal of his petition for regular bail.
Justice Madaan noted that while his bail plea before the High Court was filed on May 6, 2021, and had been awaiting adjudication, the petitioner went on to file another bail plea before the Sessions Judge, Sirsa on June 25, 2021. The Sessions Judge granted bail on June 28.
Taking a serious view of the matter, Justice Madaan, in his order dated July 6, sought an explanation from the Sessions Judge for entertaining and deciding a bail petition when a similar petition was pending before the High Court.
Justice Madaan further asked the Sessions Judge to report whether the pendency of the petition before the High Court was brought to his notice by the Public Prosecutor or the concerned police officer.
He also sought an explanation from the Sessions Judge as to how he released the accused on bail without considering the bar of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
As per this section, courts are required to provide an opportunity to the Public Prosecutor to oppose release on bail in case of accusation for certain offences. Further, while granting bail, courts should be satisfied about two conditions: that there exist reasonable grounds for believing that the applicant is not guilty of the offence, and that the applicant is not likely to commit any offence while on bail.
In his order, Judge Madaan directed the Assistant Advocate General, Haryana to convey the entire matter to the Director Prosecution, Haryana as well as DGP, Haryana so that necessary action is taken against the official at fault.
Chandigarh-based human rights lawyer Arjun Sheoran, who is also national organizing secretary of the People's Union for Civil Liberties (PUCL) said, "I don't think there is anarchy prevailing in the judicial system but these judicial passed orders by HC do reflect systemic problems in lower courts."
"The courts these days are working under tremendous pressure. They are vastly under-resourced and under-financed. More importantly, in the lower judiciary, a single judge has so many cases since there are very few judges dealing with a vast number of cases who also lack proper support unlike higher court judges," said Sheron.
Sheoran said that in the Panchkula case where the accused remained in jail despite being granted bail, it appears that judicial officers passed orders mechanically. Even if one assumes that the accused could not find out that he was granted bail, it is hard to digest how the police and the prosecution ignored it when the bail matter came up for hearing before the Sessions Court.
"The law is very clear: when a bail plea comes up for hearing, a police officer is given notice through a public prosecutor. Then a reply is filed. So it is strange how the fact that the CJM had already granted bail to the accused did not feature in police or prosecution replies. Why did the police not act on the order when CJM had granted bail in the first place?" said Sheoran.
(Vivek Gupta is an independent journalist based in Chandigarh. The views expressed are personal.)
