A blanket ban on the listing of pleas for bail or suspension of sentence infringes upon the right of personal liberty of the incarcerated, the Supreme Court has said and observed that by giving such orders a Rajasthan High Court judge went “beyond his allocated judicial business”.
The apex court made the remarks in a rare case where the Rajasthan High Court approached the Supreme Court against two orders of its own judge.
One order was passed on March 31 last year directing the registry to not list bail pleas, appeals, applications for suspension of sentence and revisions in the category of extreme urgent matters till the Centre lifts the nationwide complete lockdown imposed due to COVID-19 pandemic.
The other order by the same judge, which was challenged by the High Court was of May 17, 2021, in which police were directed not to make arrests till July 17 for offences entailing up to a three-year jail term.
A bench of Justices L Nageswara Rao and Aniruddha Bose said, “In our view, orders under appeal passed on March 31, 2020 and May 17, 2021 encroached upon the administrative power of the Chief Justice of the High Court of Rajasthan in the matter of allocation of business to judges of that Court”.
The bench, while referring to various verdicts of the top court said the position of the chief justice for allocation of business to the individual judges’ stands well established in the light of the decisions of the top court.
“Apart from this jurisdictional issue, on which we find the single judge went beyond his allocated judicial business, a blanket order prohibiting listing of bail applications or applications for suspension of sentence in appeals also infringe upon the right of personal liberty of incarcerated persons,” the bench said in its recent verdict.
It said such right has been taken away by judicial order, without compliance of procedure established by law, which in constitutional jurisprudence, is akin to “the due process dictum”.
“Right to apply for bail is an individual right implicit in Articles 14, 19 and 21 of the Constitution. The right of an accused, an undertrial prisoner or a convicted person awaiting appeal court’s verdict to seek bail on suspension of sentence is recognized in Sections 439, 438 and 389 of the CrPC,” the bench said.
It said the factors guiding appeal provision is contained in the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 and if there is a blanket ban on listing of these applications, even for offences with lesser degree of punishment that would effectively block access for seekers of liberty to apply for bail and in substance suspend the fundamental rights of individuals in or apprehending detention.
Senior advocate Vijay Hansaria, who represented the High Court, had contended that decisions for listing of matters by fixing the roster rest with the chief justice of a high court and such administrative power cannot be appropriated by any bench.
Dealing with the jurisdiction of the judge to pass such orders, the bench said, “Such sweeping orders in our adversarial adjudicatory system would be contrary to law as many persons would be impacted by such orders without having any knowledge of the proceeding”.
The top court said, “It was also improper for the single judge to come to a general finding that when there is complete lockdown the bail applications, appeal under SC/ST Act and applications for suspension of sentence in appeals and revisions could not be considered to be matters of extreme urgency.” “The orders were passed in relation to criminal matters and would have had adverse effect on those suffering or anticipating pre-trial detention or convicts awaiting their appeals. There could be individual cases of extreme urgency for undertrial prisoners or convicts also to apply for bail, upon suspension of sentence for the latter category of litigants.” The top court held that in the impugned orders, the judge “was in error” in picking up the categories of litigations and arrived at a finding that these categories of cases could not be considered to be of extreme urgency.
“It was also not within his jurisdiction to direct the Registrar (Judicial) not to list bail, appeals and applications for suspension of sentence in appeals and revisions in the category of extreme urgent matters,” it said.
The Supreme Court said that in passing such an order, the judge had assumed administrative jurisdiction of the chief justice to allocate business to individual judges of the court.
“Also, by issuing such sweeping directions, decision has been taken which should have been left to be decided by the respective Benches for determining as to whether the specific cases fell in the category of extreme urgent matters warranting listing, even during the pandemic,” the bench said.
Both the orders of the judge were earlier stayed by the top court on April 3, 2020 and on May 25, 2021.
The SC said though the impact of the orders under appeal no more survives, it has decided to express its opinion on the subject-controversy as the directions issued had the potential for breaching the constitutional and legal rights of individuals who could be or are arraigned in criminal action and also put fetters on power of investigating agencies.