All the bail applications arising out of the same F.I.R. shall be placed before one Judge: Supreme Court

In compliance with the Order dated February 7, 2025 passed by the Supreme Court of India in Shekhar Prasad Mahto @ Shekhar Kushwaha Versus The Registrar General Jharkhand High Court & Anr, Patna High Court has issued a circular drawing the attention towards the following directions:

1. All the bail applications arising out of the same F.I.R. shall be placed before one Hon'ble Judge.

2. If on account of change of the roster, the Hon'ble Judge who was earlier dealing with the bail matters is not taking up the bail matters, the aforesaid directions that all the bail applications arising out of the same F.I.R. shall be placed before one Hon'ble Judge, shall not be applicable.

3. Further, in order to maintain consistency in the views taken by the Court, the Hon'ble Judge, who will hear the subsequent applications filed for bail, may give due weightage to the views taken by the earlier Hon'ble Judge, who had dealt with the bail applications arising out of the same FIR.

The Circular Order No. 01 of 2024 and 03 of 2024 issued in the light of directions contained in the judgment dated January 19, 2024 passed by the Supreme Court ourt of India in Kusha Duruka vs. The State of Odisha (2024) is superseded to the above extent. The aforementioned instructions shall be followed scrupulously henceforth by all concerned and any deviation shall be indicated as defect by the Stamp Reporting Section. Non-compliance of the instructions by the Registry shall be viewed seriously. 

On Febryary 7, 2025, in Shekhar Prasad Mahto @ Shekhar Kushwaha Versus The Registrar General Jharkhand High Court & Anr, Supreme Court's Division Bench of Justices B.R. Gavai and K. Vinod Chandran recorded in ist judgement that "the counsel for the petitioner submitted that in defiance of the orders passed by this Court on 31.07.2023 in SLP(Crl.) No. 7203 of 2003 and on 12.12.2023 in SLP(Crl.) No. 15585 of 2023, the matters pertaining to the same FIR were not placed before the same learned Judge. It is submitted that this Court in unequivocal terms has directed that all the matters arising out of the same FIR should be placed before the same learned Judge. It is, however, submitted that in the present case though Judge ‘A’ had passed an order in the bail application preferred by a co-accused, the application for bail preferred by the petitioner was placed before Judge ‘B’. The three judges-Bench of this Court in SLP(Crl) No. 7203 of 2023 has observed thus: “7. We have come across various matters from the High Court of Allahabad, wherein matters arising out of the same FIR are placed before different Judges. This leads to anomalous situation. Inasmuch as some of the learned Judges grant bail and some other Judges refuse to grant bail, even when the role attributed to the applicants is almost similar.”

These observations were reiterated by a Division Bench of the Supreme Court in SLP(Crl.) No. 15585 of 2023 titled as “Rajpal Vs. State of Rajasthan”.

The Court observed: "What this Court meant in passing the order dated 31.07.2023 was that when the bail matters are assigned to different Benches and when those bail applications arise out of the same FIR and if such application are heard by different Benches, it leads to an anomalous situation, inasmuch as some of the benches grant bail whereas some of them take a different view. However, it is to be noted that in many High Courts, the roster system is followed. After a particular period, the assignment of the learned Judges change. It is also quite possible that the learned Single Judge, who was earlier taking up the assignment of bail matters may in the subsequent roster be a part of the Division bench. We are, therefore, of the view that if the aforesaid direction is followed universally, it may lead to disruption of benches inasmuch as the learned judge who had initially heard the bail application of one of the accused, may have become a part of some Division Bench when a bail application arising out of the same FIR is filed by another accused. We, therefore, clarify that if in a particular High Court, the bail applications are assigned to different single Judge/Bench, in that event, all the applications arising out of same FIR should be placed before one learned Judge. This would ensure that there is a consistency in the views taken by the learned judge in different bail applications arising out of the same FIR. However, if on account of change of the roster, the learned judge who was earlier dealing with the bail matters is not taking up the bail matters, the aforesaid directions would not be applicable. Further, we expect that in order to maintain consistency in the views taken by the Court, the learned judge, who will hear the subsequent applications filed for bail, may give due weightage to the views taken by the earlier judge, who had dealt with the bail applications arising out of the same FIR."

The Court concluded: "14. We find that if this is not followed and if the judges siting in the Division Bench or thereafter taking up different assignments are required to take up the applications arising out of the same FIR, it may further delay the decisions in the bail matters. The Registrar (Judl.) is directed to forward a copy of this order to the Registrar Generals of all the High Courts. Needless to state that taking into consideration the urgency in deciding bail matters, learned Judge of the High Court to whom the bail application of the present petitioner is assigned, shall decide the matter expeditiously."

Bail with excessive and onerous conditions is no bail: Supreme Court

In Girish Gandhi vs. State of Uttar Pradesh and Others, the Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan observed that the grant of bail with excessive conditions that the accused would find difficult to fulfill would tantamount to denial of bail. The judgement was delivered on August 22, 2024. The Court took note of the meaning of ‘surety’ according to Oxford Dictionary. It defines it as “a person who takes responsibility for another’s obligation”. Advanced Law Lexicon defines ‘surety’ to mean “the bail that undertakes for another man in a criminal case.” The Court referred to the relevant provisions-Sections 441 and 446-under Code of Criminal Procedure (Cr.PC).

Section 441 of the Cr.PC which deals with bonds and sureties, reads: “Bond of accused and sureties.– (1)Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.”

Section 446 of the Cr.PC which deals with procedure when bond has been forfeited, reads: “Procedure when bond has been forfeited. – (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.”

The Court relied on Court's decision in Satender Kumar Antil vs. Central Bureau of Investigation & Anr. (2022) 10 SCC 51. The Court has held that “imposing a condition which is impossible of compliance would be defeating the very object of release.” 

It also relied on Court's order in Court in Re Policy Strategy for Grant of Bail in SMWP (Criminal) No. 4/2021 reported in 2023 SCC OnLine SC 483. By the order dated 31.01.2023, the Court endorsing certain directions sought by the Amicus Curiae passed an order for compliance with those directions. The two relevant directions are extracted hereunder:- “6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/relaxation.
7) One of the reasons which delays the release of the accused/convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.” 

The Court recalled the decision of Justice V. R. Krishna Iyer in Moti Ram and Ors. vs. State of Madhya Pradesh (1978) 4 SCC 47. Justice Iyer observed “33. To add insult to injury, the magistrate has demanded sureties from his own district! (we assume the allegation in the petition). What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic, sometimes linguistic, sometimes legalistic. Article 14 protects all Indians qua Indians, within the territory of India. Article 350 sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland Swaraj is made of united stuff.”

The Court observed: "From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right. As to what is excessive will depend on the facts and circumstances of each case. In the present case, the petitioner is experiencing a genuine difficulty in finding multiple sureties. Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the 14 requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case."

Drawing on these decisions, the Court's judgement reads: "In view of the above, we propose to relieve the petitioner from the direction to produce a local surety....This condition will supersede the condition imposed in the respective bail orders." The judgement was authored by Viswanathan.

 

 

Supreme Court reiterates "bail is rule and jail is exception", sets aside Delhi High Court's order on Manish Sisodia's bail application

Hearing Manish Sisodia Vs. Directorate of Enforcement, the appeal challenging the judgment and order of May 21, 2024 passed by the Delhi High Court rejecting the grant of bail, the Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan observed: "The present case travelled two rounds before the trial court, the High Court and this Court. This is now the third round before this Court wherein the appellant is seeking bail in connection with the aforesaid two cases."  The application was filed for seeking bail in connection with a Enforcement Directorate (ED) case registered against the appellant by the ED and First Information Report (FIR) registered against the appellant by the Central Bureau of Investigation (CBI). The judgement was delivered on August 9, 2024. It was authored by Justice Gavai.  Dr. Abhishek Manu Singhvi, Senior Counsel appeared for the appellant and S. V. Raju, Additional Solicitor General (ASG) appeared on behalf of the respondents.

The Supreme Court's 38 page long judgement reads: "The impugned judgment and order dated 21st May 2024 passed by the High Court of Delhi in Bail Application Nos. 1557 and 1559 of 2024 is quashed and set aside; The appellant is directed to be released on bail in connection with ED Case No. HIU-II/14/2022 registered against the appellant by the ED and FIR No. RC0032022A0053 of 2022 registered against the appellant by the CBI...." Reacting to grant of bail by the Court, Sisodia said,"Lawyer is like God for any person in jail, Abhishek Manu Singhvi is also God for me".  

The judgement records Court's opinion in its first order. It reads: "Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years." 

It relied on Court's own decision in Vijay Madanlal Choudhary and Others v. Union of India and Others (2022) to infer that "Section 436A Cr.P.C. should not be construed as a mandate that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period."

It observed: "In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post." It recalled the adage: "procedure is a hand maiden and not a mistress of justice." 

The Court drew on its decision in the case of Prabir Purkayastha v. State (NCT of Delhi) (2024). It reads :
“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala3:—“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution
Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”” Justice Gavai was part of the bench which decided the release of Prabir Purkayastha, the editor of NewsClick. 

Justice Gavai led bench observed: " the question that arises is as to whether the trial court and the High Court have correctly considered the observations made by this Court with regard to right to speedy trial and prolonged period of incarceration. The courts below have rejected the claim of the appellant applying the triple test as contemplated under Section 45 of the PMLA. In our view, this is in ignorance of the observations made by this Court in paragraph 28 of the first order wherein this Court specifically observed that right to bail in cases of delay coupled with incarceration for a long period should be read into Section
439 Cr.P.C. and Section 45 of the PMLA."

He observed: we find that the finding of the learned trial judge that it is the appellant who is responsible
for delaying the trial is not supported by the record. The learned Single Judge of the High Court endorses the finding of the trial court on the ground that the accused persons have taken three months’ time from 19th October 2023 to 19th January 2024 for inspection of “un-relied upon documents” despite repeated directions from the learned trial court to conclude the same expeditiously. It is to be noted that there are around 69,000 pages of documents involved in both the CBI and the ED matters. Taking into consideration the huge magnitude of the documents involved, it cannot be stated that the accused is not entitled to take a reasonable time for inspection of the said documents. In order to avail the right to fair trial, the accused cannot be denied the right to have inspection of the documents including the “un-relied upon documents”. 

His decision noted that the contentions raised by the Additional Solicitor General was self-contradictory and the failure of both the High Court and the trial court. He observed: "We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor."

The Court factored in the Court's decision on a bail application in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another (2024) wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. The Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh (1978), Shri Gurbaksh Singh Sibbia and Others v. State of Punjab (1980), Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar (1980), Union of India v. K.A. Najeeb (2021) and Satender Kumar Antil v. Central Bureau of Investigation and Another (2022). 

After the survey of its own decisions, the Court observed:“If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”

The Court observed: "The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”." 

Justice Gavai observed: "In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial."

It all began with on the basis of a letter dated July 20, 2022 by Vinai Kumar Saxena, the Lieutenant Governor of Delhi alleging irregularities in the framing and implementation of Delhi’s Excise Policy for the year 2021-22, the Director, Ministry of Home Affairs had directed an enquiry into the matter vide Office Memorandum dated July 22, 2022. On February 26 2023, the appellant came to be arrested by the CBI. Subsequently, the appellant was arrested by the ED on March 9, 2023. After investigation, CBI filed charge-sheet on April 25, 2023 for the offences punishable under Sections 7, 7A, 8 and 12 of the Prevention of Corruption (PC) Act, 1988 read with Sections 420, 201 and 120B of the Indian Penal Code (IPC), 1860. Upon completion of investigation, the ED filed a complaint under Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA) on May 4, 2023.

 

"Bail is the rule and jail is an exception" is a settled law: Supreme Court

In Jalaluddin Khan Vs. Union of India, Justices Abhay S. Oka and Augustine George Masih of the Supreme Court heard the appeal of the appellant who is being prosecuted for the offences punishable under Sections 121, 121A and 122 of the Indian Penal Code (IPC) and Sections 13, 18, 18A and 20 of the Unlawful Activities (Prevention) Act (UAPA), 1967. A charge sheet was filed on January 7, 2023. The appellant applied for bail before the Special Court under the UAPA, which was rejected. Hence, the appellant and some co-accused applied for bail before the High Court. 

The prayer for bail made by the appellant was rejected by Patna High Court's bench of Justices Ashutosh Kumar and Alok Kumar Pandey, while bail was granted to a co-accused. The High Court's verdict was authored by Justice Kumar. As far the accused who was granted bail by the High Court is concerned, Justice Kumar observed, "Merely being a member of a banned organization, would not justify rejection of bail when the Trial is likely to continue for a longer time." The judgement reads: "Considering the overall materials against appellant/Nooruddin Jangi @ Advocate Nooruddin Jangi [Cr. Appeal (DB) No. 749 of 2023], we deem it appropriate to set-aside the order dated 01.05.2023, refusing to grant him bail." Prior to High Court's judgement, the prayer for bail of Advocate Nooruddin Jangi in Special Case No. 07 of 2022/R.C. No. 31 of 2022, arising out of Phulwari Sharif P.S. Case No. 827 of 2022 was rejected by Special Judge, N.I.A., Patna vide order dated 01.05.2023.

With regard to Jalaluddin Khan, the Supreme Court observed: "we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively." It further said: "When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. 'Bail is the rule and jail is an exception' is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution. Hence, the impugned orders are set aside. The appeal is allowed. The appellant is directed to be enlarged on bail on the terms and conditions as may be fixed by the Special Court. For that purpose, the appellant shall be produced before the Special Court within a maximum of 7 days from today. The Special Court shall enlarge the appellant on bail until the conclusion of the trial on appropriate terms and conditions."  

The judgement was authored by Justice Oka. It was delivered on August 13, 2024. Mukta Gupta, the appellant's senior counsel relied on Court's decision in Shoma Kanti Sen v. State of Maharashtra and another (2024).

Relying on the Court's decision in Thwaha Fasal v. Union of India (2022), the Court examined the material forming part of the charge sheet to decide whether there are reasonable grounds for believing that the accusations against the person applying for bail are prima facie true. While doing so, the court is required to take the charge sheet as it is. 

The Court observed: "There is nothing in the charge sheet which shows that the appellant has taken part in or has committed unlawful activities as defined in the UAPA. There is no specific material to show that the appellant advocated, abetted, or incited commission of any unlawful activities. A terrorist act is defined in Section 15(1). Assuming that the co-accused were indulging in terrorist acts or were making any act preparatory to the commission of terrorist acts, there is absolutely no material on record to show that there was any conspiracy to commit any terrorist act to which the appellant was a party. There is no material produced on record to show that the appellant advocated, abetted, advised, or incited the commission of terrorist acts or any preparatory activity." 

It further observed: "We must note here that the appellant’s son conducted the negotiations for giving the first floor on rent. Taking the charge sheet as correct, it is not possible to record a prima facie finding that the appellant knowingly facilitated the commission or preparation of terrorist acts by letting out the first floor premises. Again, there is no allegation in the charge sheet against the appellant that he organised any camps to impart training in terrorism."

The Court recorded: "There is not even an allegation in the charge sheet that the appellant was a member of any terrorist gang. As regards the second part of being a member of a terrorist organisation, as per Section 2(m), a terrorist organisation means an organisation listed in the first schedule or an organisation operating under the same name as the organisation was listed. The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member. We find that the PFI is not a terrorist organisation, as is evident from the first schedule."

The Court concluded: "Therefore, on plain reading of the charge sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true. We have taken the charge sheet and the statement of witness Z as they are without conducting a mini-trial. Looking at what we have held earlier, it is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UAPA was prima facie true. No antecedents of the appellant have been brought on record. The upshot of the above discussion is that there was no reason to reject the bail application filed by the appellant."

The application for bail of Jalaluddin Khan was rejected by the Special Judge, N.I.A., Patna in Special Case No. 07 of 2022/R.C. No. 31 of 2022, arising out of Phulwari Sharif P.S. Case No. 827 of 2022, by order dated 15.04.2023. It was rejected by the High Court as well. Drawing on Supreme Court's decision in National Investigation Agency Vs. Zahoor Ahmad Shah Watali; (2019) 5 SCC 1, the High Court had not found "any folly with the conclusion of the Trial Court" with respect to Jalaluddin Khan. Drawing on the decision in Shoma Kanti Sen v. State of Maharashtra and another (2024), Supreme Court found the conclusion of the Trial Court and the High Court to be unreasonable. It did not question the grant of bail to Advocate Nooruddin Jangi by the High Court.