'Approx 3000 Bail Pleas Disposed Within A Month': Gujarat High Court On Discontinuation Of Practice Of Issuing 'Rule Nisi'

The court, presided over by Chief Justice Sunita Agarwal and Justice Aniruddha Mayee, disclosed that this change has led to the expeditious disposal of approximately 3,000 bail applications within a month. This observation was made during the hearing of a special criminal application challenging specific procedures employed by the High Court in handling bail matters.

"We got very good results after stoppage of this practice. Approximately 3,000 bail applications have been disposed of within a period of month only. As of now only 1,000 bail applications are pending," the Chief Justice stated.

The above development came in a plea filed by Bhavesh Desai, who contended that the procedural approaches employed by the High Court in handling bail matters were causing undue delays in the resolution of bail applications.

In the course of the hearing, Senior Advocate Asim Pandya, representing the petitioner, highlighted to the bench that an amendment to clause 25a of the Criminal Manual was implemented in May 2022. According to the amendment, courts are now obligated to adjudicate on a bail application or an anticipatory bail application within a stipulated time frame of three to seven days from the initial date of the hearing.

He stated that this provision does not apply only to lower courts but even to the High Courts.

The Chief Justice then emphasized that the expeditious disposal of cases relies on the cooperation of all the stakeholders involved.

"Everybody has to cooperate," she stated, questioning Pandya about any requests for adjournments.

Pandya clarified by saying not in bail matters.

Chief Justice Agarwal, then said, "No, the practice is once the Court expresses opinion, you take a chance, you avoid the court sometimes. It's a mandate, it's ordinarily. Ordinarily means as far as possible. For early decision of a matter, cooperation of Bar is very much needed. So Bar and Bench can only work together to decide the matter expeditiously. So if you are taking adjournments, then it will not apply. We aren't issuing any mandamus on the judicious side to decide bail applications within the 3-7 days."

Following this, Pandya underscored that despite the explicit instructions outlined in the Arnesh Kumar guidelines by the Supreme Court, there is a persistent violation where the police fail to conduct a preliminary inquiry. Additionally, Magistrates or trial courts are unwilling to grant bail to individuals arrested for offenses carrying a maximum sentence of up to 7 years.

He additionally emphasized that numerous cases exist where, in contravention of the Arnesh Kumar guidelines, individuals are not released by the trial court.

He then stated, "The guidelines require the police to utilize their powers responsibly, and the Magistrate is obligated to scrutinize the evidence, providing reasons for the necessity of the arrest. Failure to do so can lead to departmental liability for the Magistrate."

He further noted that these powers are frequently not being exercised, resulting in such cases reaching the High Court within the context of bail jurisdiction.

To which the Court replied by saying that the guidelines don't say that there shouldn't be any arrests at all.

Chief Justice Agarwal remarked that there is no law prohibiting arrests altogether; the absence of arrest is not the standard.

She said, "When no arrest is not the norm, the court must carefully consider the specific circumstances and evaluate the legality of the arrest. If the court believes the arrest was conducted unlawfully, it has the authority to seek a response from the relevant authorities."

The Chief Justice emphasized that the rule should not be interpreted in the manner suggested.

Continuing the discussion, Senior Advocate Pandya highlighted a noteworthy shift in the High Court's procedure. He emphasized the erstwhile practice of the High Court issuing notices to public prosecutors even in cases involving bailable offences, leading to adjournments.

The Court responded, noting that this practice has been discontinued. Instead, a new approach has been implemented, mandating the advance issuance of notices to public prosecutors in all cases.

The court additionally stated that issuing notices mechanically is no longer a consideration. The current practice involves providing advance notice to the prosecutor, and if such notice is not given, the case will not be registered at all, the Court said.

Chief Justice Agarwal suggested, “The best mechanism which can be laid down by us is that no unnecessary adjournments, all bail applications will be filed with an advance notice to the public prosecutor which is mandated in accordance with Rule 335 of the High Court Rules, and then as far as possible the minimum time will be taken in disposal of bail application.”

“The Public Prosecutor office has to be proactive, they should complete their instructions within the shortest possible time and should make their submissions and present the material before the Court. While saying so we will keep in mind and take note of the criminal manual, the provisions in 438 and 439 and 335,” she added

The Court dismissed the request for an order mandating bail applicants to submit the affidavits of the investigating officer (IO) filed in the High Court before lower courts.

The Court asserted that compelling the accused to provide material against themselves is not permissible.

Case Title: Bhavesh Baldevbhai Desai Vs. State Of Gujarat