Judicial Orders Mandating Incarceration- Recent Trend Of Imposition Of Restriction On Filing A Subsequent Bail Petition

Settled Position In Law

The issue can be essentially divided into two aspects, in both of which, the practice in ordinary course is not consistent with the settled position in law. The two parts of the issue are as follows:

With regard to fixing a time-bound schedule for disposal of pending cases

• The contemporary settled position in law with regard to fixing a time-bound schedule for the disposal of cases pending in other courts is that Constitutional Courts—in the ordinary course—are not to fix a time-bound schedule for the disposal of cases pending before other courts.
• The said position can be traced from the Supreme Court five Judges Bench Judgement in High Court Bar Association, Allahabad v. State of U.P. & Ors Special Leave Petition (Crl.) Nos. 13284-13289 of 2023 ('Allahabad Bar Association”) wherein the Supreme Court has stated that “Constitutional Courts, in the ordinary course, should refrain from fixing a time-bound schedule for the disposal of cases pending before any other Courts. Constitutional Courts may issue directions for the time-bound disposal of cases only in exceptional circumstances. The issue of prioritizing the disposal of cases should be best left to the decision of the concerned Courts where the cases are pending.”
• Even the power to decide whether there is any change in circumstances worthy of filing a subsequent bail application is vested in the petitioner himself.

With regard to imposing a cooldown period for bail

• The established position in law with regard to courts passing orders stating prayer for bail may be renewed at any later stage based on changes in circumstances or more materials or fresh developments.
• The said position can be traced from Babu Singh & Ors. Vs State of UP, (1978) 1 SCC 579, Kalyan Chandra Sarkar vs Rajesh Ranjan, (2005) 2 SCC 42, State of Tamil Nadu vs S.A. Raja, (2005) 8 SCC 380, and State of MP vs Kajad, AIR 2001 SC 3317 et al, wherein it is stated that facts and circumstances of each case are of paramount importance when it comes to deciding whether bail should be granted or not. Justice VR Krishna Iyer and Justice D.A. Desai laid a proposition (Babu Singh), stating the following: “[A]n order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further development and different considerations. While it is a circumstance which the Courts surely must set store, courts are not barred from second consideration at a later stage.”

Despite the law being clear about the matter, the Supreme Court and the High Courts very often pass orders that are contrary to what the Supreme Court held as mentioned above.

Constitutional Validity Of The Court's Conduct

The practice of Constitutional Courts fixing time for concluding the trial and renewing the Bail application after a certain time is violative of Article 14 and Article 21 of the Constitution of India.

Article 14 And The Principle Of Parity

• “'When two persons have equal status in at least one normatively relevant respect, they must be treated equally with regard in this respect. This is the generally accepted formal equality principle that Aristotle articulated in reference to Plato: “treat like cases as like” (Aristotle, Nicomachean Ethics, V.3. 1131a10–b15; Politics, III.9.1280 a8–15, III. 12. 1282b18–23).”'

• The principle of parity is backbone of the parliamentary democracy. In the platonic term, “treat like cases as like” gives sanction and validity of parity.

• The principle of parity in bail matters is a legal doctrine that ensures that similarly situated accused persons are treated equally when it comes to the granting or denial of bail. According to this principle, if one accused person is granted bail, other co-accused individuals who are in similar circumstances and have no significant distinguishing factors should also be granted bail.

• This principle stems from the broader concept of equality before the law, enshrined in Article 14 of the Indian Constitution. It is stated that often, there exists a circumstance wherein one co-accused is granted bail while the other one is not. As per the principle of parity, the other person, if in similar circumstances, is entitled to get bail as well as everyone is equal before the Law as per Article 14 of the Indian constitution.

• While the court puts a restriction on when a person can seek bail, there exists a possibility that a co-accused is granted bail despite being in the same situation. This should entitle the Petitioner to seek bail on the ground of parity at any time, and thus, in light thereof, whether the cooldown period effectively makes the Petitioner's right to equality under Article 14 of the Constitution nugatory by barring the accused from preferring subsequent bail application till the prescribed time period. Hence, directing a person not to file a bail application for a certain amount of time is violative of the principle of parity and, by extension, article 14 of the Constitution of India.

• The Supreme Court in Ajmer Singh vs State Of Haryana Criminal Appeal No. 436 of 2009 stated the following: “[T]he principle of parity in criminal case is that, where the case of the accused is similar in all respects as that of the co-accused then the benefit extended to one accused should be extended to the co-accused.”

• The Supreme Court in the case of Javed Shaukat Ali Qureshi v. State Of Gujrat, Criminal Appeal No. 1012 OF 2022, affirming the principle of parity noted the following: “[W]hen there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination.”

• As illustrated in Table 1, an instance of arbitrary imposition of a cooldown period has resulted in the deprivation of individuals' constitutional rights guaranteed under Article 14 of the Constitution of India.

Table.1

• The table above illustrates that on 23.06.2023, FIR No. 1 of 2023 was registered by P.S Cyber, District- Lakhisarai, Bihar u/s 406, 420, 419, 467,468,471, 120B of IPC and Section 66 of IT act. On 28.02.2024, an accused named in that FIR by the name of Ratan Kumar approached the high court of judicature at Patna wherein his bail petition was dismissed by passing an unusual order that if the trial is not completed in 9 months only then the petitioner would be entitled to renew his prayer for bail. The main accused in the same FIR , Pankaj Bind was granted bail by the High Court of Judicature at Patna on 29.02.2024. Further, Supreme Court in SLP (Criminal) 6648 of 2024 granted bail to another co-accused, Santosh Kumar, on 22.07.2024. Again in the same FIR, Lallan Kumar was granted bail dated 22.08.202 by the High Court. It is evident that the principle of parity is violated in the above-mentioned circumstances since two of the co-accused, who were similarly placed in the same matter, were granted bail while Ratan Kumar was stripped of his right to renew his bail till the expiry of the period of one year and he unnecessary spend more time in the jail.

Article 21

• The Court's direction to the Petitioner to wait for a period of one year (in the event of non-completion of trial within that period) for filing any subsequent bail application effectively 'eclipses' the Petitioner's fundamental right to life & liberty under Article 21 of the Constitution for that period. Article 21 of the Constitution of India is the soul of the Constitution, as the liberty of a citizen is of paramount importance”.
• Article 21 of the Constitution of India is the soul of the Constitution, as the liberty of a citizen is of paramount importance”. It is affirmed by the Supreme Court time and time again. For the Supreme Court, article 21 and liberty of the citizen is the body of the constitution from A.K. Gopalan vs The State Of Madras and Ors., AIR 27, 1950 SCR 88, AIR 1950 to and more recently in the plethora of judgments.
• In denying a person bail and further setting a virtual 'cooldown period' for bail ignores the possibility of new circumstances arising and hence, arbitrary and unfair. Therefore, any such imposition of a cooldown period is contrary to the violative of Article 21 of the Constitution of India. It violated the due process of law and procedure established by the law. The due process and procedure are defined in the statuary provisions i.e. CRPC, 1973 AND BNSS, 2024. The cooldown period takes away the rights of the accused arbitrarily, as it restricts the accused from going before Ld. Trial Court and the High Court within the mentioned time period.
• The principle of personal liberty has been acknowledged to be the soul of the rights of man and woman across various legal cultures as well as India's legal history. Its violation attacks the right to be a human itself.
• This cooldown period is contrary to what the Supreme Court has stated in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Supreme Court emphasized that the “i. procedure established by law” must be just, fair, and reasonable, and not arbitrary, fanciful, or oppressive. To de-valuing of clean hand of the accused, facts, circumstance and stage of the case and fixing time for subsequent bail application are contrary of the “procedure established by law”, must be just, fair, and reasonable, and not arbitrary, fanciful, or oppressive.”
• The cooldown period for bail infringes upon the right to approach the trial court and it has impacts as follows:
• Unreasonable restriction- the cooldown period must be seen as an unreasonable restriction on the accused's right to seek bail and approach the trial court.
• Access to justice: The right to approach the trial court is a fundamental aspect of access to justice. A cooldown period causes a delay or deny this access.
• Presumption of innocence: The accused is presumed innocent until proven guilty. A cooldown period undermines this presumption by implying that the accused is neither entitled to seek bail for a certain amount of time nor entitled to approach the trial court for bail.
• Fair trial: A cooldown period can impact the accused's ability to prepare for a fair trial, as it limits their ability to seek legal recourse or challenge their detention or approach for bail and participate in trial efficiently without living in detention. The Supreme Court has emphasized that the right to approach the trial court is a fundamental right, and any restrictions on this right must be reasonable and justified. In the context of bail, the court has held that a cooldown period is not a valid restriction on this right.

Circular Litigation, Pendency Of Cases And Poverty Of Citizen

The providing cooldown period for bail causes hardships and difficulties, especially for poor citizens. When a person is trapped into a cooldown period for bail, it can create a cycle of litigation from pillar to post, from trial court to the Supreme Court, which a poor person must suffer and cannot escape due to this unreasonable restriction of law. This can lead to a prolonged period of uncertainty, causing stress and financial hardship for the individual and their family. In addition, the pendency of trials is a significant issue in India, with many cases taking years to conclude. Trapping a person in circular litigation from lower courts to higher courts due to the cool-down period further leads to a backlog of cases, causing further delays and prolonging the uncertainty. To address these issues, there needs to be a reform of the bail system, making it more accessible and equitable for all citizens, regardless of unreasonable restrictions like the cool-down period. Ultimately, the goal should be to ensure that the bail system serves as a safeguard for the rights of the accused rather than a source of further hardship and injustice. To ask a person who may not be able to provide for their own family if they even stop working for a day is a cost too high to pay. The Supreme Court, in the case of Santosh Kumar @Santosh vs The State of Bihar, Arising out of S.L.P.(Criminal) No.6648 of 2024) notes that “[W]e are surprised to note that notwithstanding the decision of the Constitution Bench in the case of High Court Bar Association, Allahabad vs. State of U.P. & Ors.1 (2024) INSC 150, the High Courts are issuing such directions without even considering that every criminal Court in the State of Bihar will have huge pendency.”

The imposition of a cooldown period on subsequent bail applications is akin to hitting the brakes on justice under the guise of procedure, leaving the accused stranded on the road to liberty. While courts aim to balance expedience and fairness, this practice skews heavily toward inefficiency and arbitrariness, undermining constitutional safeguards. True justice isn't served by erecting procedural barricades but by ensuring that every individual—regardless of circumstances—has unimpeded access to due process and equitable treatment. In the race between pendency and liberty, the Constitution unequivocally sides with the latter.

The Author is an Advocate practicing at Supreme Court of India. Views are personal.