SC laments non-disclosure of essential information in bail applications, issues guidelines to curb the practice

Lamenting the degradation of "values in the last 40 years", the Supreme Court has issued a slew of guidelines to prevent litigants in bail matters from attempting to lead the court up the garden path.

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THE Supreme Court of India seems to have had enough of litigants trying to pull the wool over the court's eyes while filing for bail applications.

A division Bench comprising Justices Vikram Nath and Rajesh Bindal, lamenting the degradation of "values in the last 40 years", whereby litigants have started going to "any extent" to mislead the court, have issued a slew of directions for litigants to make certain disclosures while filing bail applications.

It has directed that petitioners must disclose:

• Details and copies of Order(s) passed in the earlier bail application(s) filed by the petitioner which have already been decided. 
• Details of any bail application(s) filed by the petitioner, which is pending in any court, above or below the court in question, and if no such application is pending, a clear statement to that effect has to be made. 

The Bench also reiterated that the bail applications filed by different accused in the same first information report (FIR) should be listed before the same judge except in cases where the judge has superannuated or has been transferred or otherwise incapacitated to hear the matter.

The system, the Bench said, needs to be followed meticulously to avoid any discrepancies in Orders.

The Bench also said that the applicant must mention if they are filing for bail the first time, or the number of times they have applied for bail previously in order to enable the next higher court to appreciate the arguments in that light.

It added that it is the duty of the investigating officer and any officer assisting the State counsel in court to apprise him of the Order(s), if any, passed by the court with reference to different bail applications or other proceedings in the same criminal case. The counsel appearing for the parties have to conduct themselves truly like officers of the court.

The Bench was ruling on a petition by an accused Kusha Duruka. The petitioner claimed that he has been in custody since February 3, 2022 in connection with a crime registered under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The allegation in the FIR is that the petitioner and the co-accused Gangesh Kumar Thakur @ Gangesh Thakur were in exclusive and conscious possession of 23.8 kg ganja and were transporting the same.

On February 4, 2022, the first bail application filed by the petitioner as well as the co-accused was rejected by the sessions judge-cum-special judge, Malkangiri, Odisha.

The petitioner approached the High Court of Orissa for a grant of bail by filing. The co-accused Gangesh Kumar Thakur @ Gangesh Thakur also approached the High Court for a grant of bail. The bail application filed by the petitioner and co-accused were assigned to different judges.

On January 17, 2023, the bail application filed by the co-accused Gangesh Kumar Thakur @ Gangesh Thakur was allowed by the high court. The Order did not suggest that the State counsel had pointed before the high court that there was another bail application filed by another petitioner pending consideration before a different judge.

On March 3, 2023, the bail application filed by the petitioner was rejected by a different judge of the Orissa High Court. The high court had specifically recorded in the Order that the co-accused Gangesh Kumar Thakur @ Gangesh Thakur had been released vide Order dated January 17, 2023.

On July 21, 2023, aggrieved by the rejection of his bail petition, the petitioner filed an appeal in the Supreme Court.

On September 15, 2023, during the pendency of the matter before the Supreme Court, the second bail application filed by the petitioner was rejected by the sessions judge-cum-special judge, Malkangiri. The argument raised by the petitioner that the co-accused had already been granted bail was noted in the Order. However, the Order did not record the fact that a petition filed by the petitioner seeking bail was pending before the Supreme Court.

On September 21, 2023, while the matter was pending before the court, the petitioner filed a second bail application before the high court and the same was not disclosed before the Supreme Court.

On October 10, 2023, during the pendency of the matter before the Supreme Court, the high court judge granted bail to the petitioner.

On November 8, 2023, the counsel for the State appeared and sought time for filing a counter affidavit to the petition. Though the high court had already granted bail to the appellant, it was not pointed out when the matter was taken up by the Supreme Court.

On December 6, 2023, the advocate for the petitioner pointed out before the Supreme Court that the petitioner had already been released by the high court.

The Bench took strong exception to the non-disclosure in the high court of the fact that the petitioner had filed an appeal in the Supreme Court in which notice was already issued.

The Bench stopped short of cancelling the bail granted to the petitioner by the high court. It, instead, imposed a cost of ₹10,000 on the petitioner for misleading the court.

Click here to read the order.