Wednesday, December 7, 2022

Default bail denied: Allahabad High Court rebukes magistrates, Session judges for dereliction of duty

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Prayagraj (ILNS): The Allahabad High Court has rebuked the Magistrates and Session Judges from the district of Hardoi in the Lucknow Commissionaire and rest of the state for their failure to perform their duties in securing fundamental rights as guaranteed under Article 21 of the Constitution of India.

The Bench of Justice Attau Rahman Masoodi emphasized:

“A mass disaster or pandemic may severely obstruct our life and governing systems in many ways, but the doors of the courts of law must remain open for the protection of Article 21 of the Constitution of India.”

The issue emanated from two bail applications involving an identical question of law. In both the applications the right of personal liberty embodied under Article 21 of the Constitution of India is questioned on the ground of default on the part of the prosecution to file the charge sheet within the statutory period as provided under Section 167(2) of Code of Criminal Procedure.

In the case of Abhishek Srivastava, in Bail Application No. 5384 of 2020, the first remand order was passed on January 16, 2020. Thereafter, the judicial custody continued from time to time and lastly, the remand was extended on March 11, 2020 for a period of 14 days, i.e. up to March 25, 2020. Thereafter, due to closure of Courts on account of COVID, from March 24, 2020, only fresh remand cases were handled.

The period of 90 days expired on April 14, 2020 and in absence of any remand order since March 25, 2020, the applicant (Abhishek Srivastava) continued in jail till the filing of the charge sheet on May 1. The default bail application was rejected by the magistrate on June 18.

Similarly, in Bail Application No. 5756 of 2020, filed by Sanjeev Yadav, the right of default bail was ignored by a court below after completion of 90 days.

The counsel for the applicants argued that the indefeasible right of default bail could not be denied to them by the State once the limitation for filing the police report ran out. Therefore, irrespective of the fact whether the prayer for release was made or not, the duty had shifted upon the magistrate who ought to have streamlined and secured the personal liberty of the applicants in accordance with the mandate of Article 21 of the Constitution of India.

The AGA, who appeared on behalf of the State, submitted that the right claimed by the applicants though guaranteed under Article 21 of the Constitution of India, can be curtailed by following due procedure of law. In support of his submission he referred to the judgment by the apex court in the case of Sanjay Dutt v. State through CBI, Bombay, reported in (1994) 5 SCC 410, where it was argued that upon filing of the police report before the court concerned, the right of default bail stands eclipsed and thus, the order passed by the trial court is wholly tenable in the eye of law and does not suffer from any illegality.

Regarding Bail No. 5384 of 2020, which was filed by one Srivastava, the District Judge in his report submitted that there was no remand from March 25 to June 16 due to closure of the courts pursuant to complete lock-down order of the government. The Courts were closed till further orders, therefore, remand and bails of accused persons were directed to be done as per holiday practice. It was also mentioned that as per holiday practice only fresh remand used to be done.

Notably, the High Court, in its direction issued on March 25, had directed the subordinate Courts that the remands and bails of arrested person shall be done as per holiday practice.

In this context, the Court observed:

“The District Judges were under a bounden duty to assign the remand duty to the courts of magistrate/Session Judge during the lock-down period and irrespective of the fact that the courts were closed, the remand matters were bound to be taken up and wherever the indefeasible right of personal liberty accrued to an accused incarcerated in jail, he ought to have been offered default bail in the manner prescribed under Section 167(2) of the Cr.P.C.”

The High Court cited the Judgment of the Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 where it was observed that once the application was filed by the accused in jail for the grant of default bail, the mere filing of the police report would not frustrate the right and the ground of default would remain available for release.

The High Court further said:

“The remand matters could not be ignored selectively by attaching preference or priority to fresh remand cases in derogation of the procedure applicable on holidays. The report forwarded by the District Judge, Lucknow is alarming and the selective role which the courts have played from 25.3.2020 to 16.6.2020 deserves to be condemned.”

Noting that “there is a clear dereliction of duty in Bail Application No. 5384 of 2020 (Abhishek Srivastava v. State of U.P.) and the position is amply evident from the report of the District Judge,” the Court said that a case for default bail was made out. Therefore, the Court of the magistrate was directed to release the Applicant Abhishek Srivastava.

With regard to another Bail Application No. 5756 of 2020 (Sanjeev Yadav v. State), the Court said that “the prosecution has adopted a peculiar stand to justify the default. It is stated that the closure of court prevented them to file the charge sheet before the deadline i.e. 29.4.2020. The prosecution has taken a bald plea without showing any steps having been taken to file the charge sheet by approaching the court or through online service.”

The Member Secretary, U.P. State Legal Services Authority has also been directed to appear before the Court in person on the next date of listing with all relevant details from the respective districts.

The Court also said: “Before any further order is passed on the dereliction of duty on the part of respective magistrates/Session Judges, the Senior Registrar of this Court, in the light of report forwarded to this Court on 29.9.2020 by the District Judge, Lucknow, is hereby directed to obtain the relevant details of magistrates/Session Judges from district Lucknow/Hardoi who have failed to pass remand orders from 25.3.2020 to 16.6.2020. The Senior Registrar of this Court shall also remain present in the Court when the case is listed next.”

Also Read: Anganwadi services: No work has happened since lockdown, says petitioner, govt tells otherwise to Supreme Court

Lastly, the Court has concluded: “Since the mass disaster of Pandemic Covid-19 covered the meaning of Section 2(d) of the Disaster Management Act, 2005 is not over, therefore, it is desirable to issue a notice to the National Legal Service Authority as well as the State Legal Services Authority through their Member Secretaries who may apprise the Court as to how the applicants or like victims of mass disaster were or are being helped during Pandemic Covid-19.”

The matter has been listed on December 10 for further hearing.

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