Tuesday, December 5, 2023

Nagpur bench of Bombay High Court pulls up prosecutor, judge for not looking into accused’s bail plea history before granting it

The Sessions Judge rejected the application, after minutely scrutinizing the material in the charge sheet. The order of rejection of bail dated 20.6.2020 noted the uncontroverted position that the applicant is a history-sheeter and is facing as many as six prosecutions involving serious offenses.

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“The credibility of the justice dispensation system is the collective responsibility of all stakeholders; the judges, the bar, the litigants, and the common man. Unfortunately, the erosion of the faith of the common man in the justice dispensation system, more often than not, is attributable to stakeholders, who may not be alive to their pious duty and responsibility to ensure that the stream of justice flows unpolluted and unhindered.”

The Nagpur Bench of the Bombay High Court recently dismissed an application challenging the cancellation of bail to a murder accused with cost Rs 50,000.

The applicant, Shubham @ Bhaiyyalal, and the co-accused allegedly killed one Nikhil Lokhande and were booked in an FIR registered at Police Station Kalamana, Nagpur, under Sections 302, 307, 326, 143, 145, 147, 148, 149, 504, 506, 120-B of Indian Penal Code read with Section 135 of Maharashtra Police Act. The applicant preferred bail, which was assigned to S.S. Deshpande, the Additional Sessions Judge-8, Nagpur.

The Sessions Judge rejected the application after scrutinizing the charge-sheet. The order of rejection of bail dated 20.6.2020  noted the uncontroverted position that the applicant is a history-sheeter and is facing as many as six prosecutions involving serious offences. The rejection order further notes that there is overwhelming evidence to link the applicant with the brutal killing and that a weapon is also recovered at the instance of the applicant.

The rejection of bail by Sessions Judge Deshpande did not deter the applicant. Two days after the rejection of bail, the assignment changed. The applicant sensed an opportunity and was quick to prefer an application for bail dated 22.6.2020 which was assigned to V.D. Ingle, Additional Sessions Judge-7, Nagpur. The details of the first application, which was rejected, were not disclosed, much less, the fact that the rejection was on merits and hardly 48 hours had elapsed therefrom, nor was the rejection order placed on record. Judge Ingle granted bail to the applicant dated 24.6.2020. Later, after the intervention of the complainant, the prosecution moved an application seeking cancellation of bail. Judge Ingle then canceled the bail vide order dated 29.8.2020. The applicant then approached the High Court challenging the same.

A Single-Judge Bench of Justice Rohit B. Deo said, “I do not have even an iota of doubt in my mind, that the note was a machiavellian lip service paid to the solemn duty of true and faithful disclosure of the rejection of the first bail application on merits. Indeed, the note is a manifestation of a devious mind and the intent was to subvert the administration of justice.”

The prosecutor in the second bail was not alive to her duty, the Judge also did not, either consider the deceitful half-truth or if she did consider the note, the counsel Chetan Thakur, who also appeared for the applicant in the earlier bail proceeding, was not called upon to produce on record the first rejection order. The prosecutor was silent, and the learned judge failed to hear the alarm bells, which the conveniently and deceptively worded “disclosure” ought to have set ringing, the Court held.

The Counsel for the applicant R.R. Vyas argued that strict rules of pleadings are not applicable to bail applications and the degree of disclosure is not absolute. The Court noted the argument only as a courtesy to R.R. Vyas. “The duty is to make a true and faithful disclosure, and not a half-truth with the intent of subverting the administration of justice. Not only the applicant, the learned counsel, who appeared in both the bail proceedings, must share the blame for the attempt to take the judicial process for a ride,” the Court observed.

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Reliance was made on the Supreme Court Judgement in R. Muthukrishnan Vs. The Registrar General of High Court at Madras, AIR 2019 SC 849, to the counsel would do well to be guided by the following observations, “27. It is said by Alexander Cockburn that “the weapon of the advocate is the sword of a soldier, not the dagger of the assassin”. It is the ethical duty of lawyers not to expect any favor from a Judge. He must rely on the precedents, read them carefully and avoid corruption and collusion of any kind, not to make false pleadings and avoid twisting of facts. In a profession, everything cannot be said to be fair even in the struggle for survival. The ethical standard is uncompromisable. Honesty, dedication and hard work is the only source towards perfection. An advocate’s conduct is supposed to be exemplary. In case an advocate causes disrepute of the Judges or his colleagues or involves himself in misconduct, that is the most sinister and damaging act which can be done to the entirely legal system. Such a person is definitely deadwood and deserves to be chopped off”.

The High Court, therefore, directed the applicant to surrender vide order dated 14.6.2021 to surrender to custody within 24 hours.

“The application is dismissed with a cost of Rs 50,000 which shall be deposited with the High Court Legal Aid Sub-Committee, Nagpur, within the next 15 days, and in default, the costs shall be recovered by the Collector, Nagpur, as arrears of land revenue,” the order reads.

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