Can't Appreciate Approach Of High Court In Rejecting Bail Application In A Single Sentence: Supreme Court

"...instead of examining bail, clearly rejected on the ground that the appeal itself should be heard appears to serve no purpose given the large number of appeals pending in the Allahabad High Court."

Stating the present approach of the High Court insisting on hearing appeal rather than granting bail is affecting the accused as well as unnecessarily overburdening the Apex Court, a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh directed the order to be placed before the Chief Justice of the Allahabad High Court and to circulate the same amongst the judges in the hope of witnessing change in their approach.

"We would require the order to be placed before the Chief Justice of the Allahabad High Court and to be circulated to the judges of the Allahabad High Court so that we can see some change in the approach…"

Reiterating its observation made on previous occasions, the Bench also asked the U.P. Government to revisit its remission policy in view of the backlog of criminal cases, in particular, the large number of appeals pending before the Allahabad High Court.

The Bench was hearing the plea of suspension of sentence filed by an accused who had undergone more than 14 years of imprisonment while his appeal was pending before the concerned High Court since 2017. The bail application filed by the accused was rejected by the High Court stating that the appeal would be heard shortly. Unfortunately, even after filing three applications for listing the appeal was not listed for hearing.

Advocate, Mr. Aarif Ali appearing on behalf of the accused submitted -

"My case is for suspension of sentence. Petitioner has served 14 years 5 months 22 days. This is actual custody. My appeal is pending since 2017. Last time my application for listing the case (appeal) was listed on 25.10.2021."

The Bench observed that when bail was rejected on 12.12.2019, the accused had undergone almost 10 years of imprisonment and the High Court had refused to grant bail only on the ground that the appeal should be heard. It recorded in the order -

"This happened in Allahabad High Court once again!...As on date the appellant has undergone more than 14 years of actual imprisonment and 16 years with remission while the appeal is pending for 7 years. Even if the date of the order of the High Court is taken into account, the appellant would have spent 10 years in custody by then and if the appeal is pending, we see no reason as to why in this kind of a single incident case bail should be rejected. We cannot appreciate the approach of the High Court in rejecting bail application with a simple sentence that the appeal should be heard, while the hearing of the appeal looks almost impossible."

Justice Kaul asked Advocate, Mr. Adarsh Upadhyay appearing for the State of U.P. why remission was not granted to the accused even after he had undergone more than 14 years in custody.

"Why did you not take up his case for remission if 14 years is already done. Is it not in accordance with the norm?"

The Counsel responded that remission can be considered only when such an application is filed by the accused.

The Bench had previously passed orders asking the U.P. Government to consider early remission for the convicts who have served more than 14 years sentence. In this backdrop, Justice Kaul, noted -

"We have repeatedly passed orders, there is some problem in the State of U.P. You keep the accused behind bars for years, not looking for responsibility. Overcrowding in jail should not be created."

Mr. Upadhyay stated that appeal is pending before the High Court.

Justice Kaul enquired, "Does that restrict you?"

Mr. Upadhyay submitted that once the application is moved by the accused, remission would be considered by the State. But, the Bench was also apprised that as per the State's policy, the accused has to undergo 16 years of actual sentence and 20 years with remission for filing application for consideration of remission.

Referring to its observation in another proceeding, Justice Kaul stated -

"We had asked them (State) to reduce it. Last time Aishwarya Bhati (ASG) told me that the policy has changed…We were somehow under the impression that there is some change. We had also suggested."

Justice Sundresh added -

"The ASG told us that a decision would be taken once the election is over."

In this regard the Bench noted -

"On this behalf, in some other proceedings, Ms. Aishwarya Bhati had assured us that in view of the election process it was not possible to take up the revisiting of the policy, but, post-election the needful would be done. We expect the State to examine the issue, more so, in the context of the policy found in the State and the huge backlog of criminal cases at trial and high court stage and also the fact that appeals are not taken up for years together. Some of the appellants may be satisfied with remission instead of prosecuting the appeal."

Justice Kaul remarked -

"Sorry to say but, we are being burdened with everything by the Allahabad High Court on the criminal side."

Setting aside the order of the High Court and granting bail to the accused, the Bench noted -

"We have no hesitation in setting aside the impugned order, that this is an incorrect approach…and we grant bail to the appellant on terms and conditions to the satisfaction of the trial court. So far as the aspect of remission is concerned, the case of the appellant can be examined once the policy has been revisited."

[Case Title: Brijesh Kumar @ Ramu v. State of Uttar Pradesh SLP(Crl) No. 1378 of 2022]

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