‘Judge Expected To Apply Mind, Pass Speaking Order’: Bombay HC Directs Subordinate Courts To Desist From Using Rubber Stamps For Deciding Bail Pleas

A bail order produced before a bench of Justice Vinay Joshi and Justice Valmiki Menezes reflected it had been "rendered on a rubber stamp with blank spaces" in which the Magistrate had filled in the bond amount without mentioning any other details.

“We note that there is no apparent authorization of the High Court for the use of such rubber stamps to enable a Magistrate to grant bail. Grant of bail is a matter of discretion to be exercised by the concerned Magistrate, who is expected to apply his mind after considering the material on record and is required to be granted or rejected by a speaking order. A Magistrate’s order on a bail application certainly cannot be rendered on a rubber stamp as we note, has done in the present case. The bail order dated 09.03.2011 before us, which is in the form of rubber stamp does not contain any reasons for grant of bail,” the court said.

The court directed the Registrar to circulate its judgement to all District and Sessions courts.

“We deprecate this practice, if it does exist in any of the Courts subordinate to this Court and deem it appropriate to circulate this judgment to all concerned District/Sessions Courts, which shall be sent by the concerned Registrar of this Court alongwith a copy of the bail order referred to by us in this judgment, with a specific directions that the subordinate Courts/Magistrates shall desist from making use of such rubber stamps for deciding bail applications in future,” the court said.

The court made these observations while deciding a writ petition against a preventive detention order under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous Persons and Video Pirates Act, 1981 (MPDA Act).

The petitioner challenged the order for preventive detention of his son as well as the Home Department’s order confirming the detention order.

The Detaining Authority i.e., the District Magistrate passed the order on the basis of in-camera statements of two witnesses.

The Detaining Authority had also relied on two crimes in which the detenu had been arrested and also granted bail. In both the crimes, complainants had alleged that he brandished a knife and extorted money from them.

Under section 3 of the MPDA Act, in order to issue a detention order, the Detaining Authority is required to reach subjective satisfaction that the acts of the detenu would be prejudicial to the maintenance of public order.

Not every alleged criminal act would be considered to prejudice the maintenance of public order until it is so demonstrated, the court said.

Relying on Jay @ Nunya Rajesh Bhosale v. Commissioner of Police, Pune, the court added that merely flourishing a weapon at a person without showing that there were other citizens around, who would fear its use, would not be a menace to public order.

"In the present case, though the two In-camera statements refer to acts of the Detenu which might amount to extortion, there does not appear to be any detail of the fear psychosis that might have been created by those acts or that the same were committed at a public place," it added.

The court further noted that there is nothing to show that the Detaining Authority verified the content of the statements or that the witnesses were unwilling depose against the detenu out of fear of him.

The court relied on Sourabh s/o. Sahebrao Rathod v. State of Maharashtra and Smt. Bismilah wd/o Sheikh Rahim v. State of Maharashtra and held that there has been a non-compliance of law as the Detaining Authority has not recorded verification of the content and authenticity of the anonymous witness statements.

The court also said the authority did not record anywhere that it verified that those witnesses were unwilling to give statements and testify against detenu out of fear.

“We, therefore, record that the subjective satisfaction arrived at by the Authority on the basis of In-camera statements which are unreliable, unverified and not even communicated to the Detenu are unsustainable. We also conclude that non communication of this material to the Detenu renders the entire process and the impugned orders to have been passed contrary to the provisions of Article 22(5) of the Constitution of India”, the court held.

The Detaining Authority had also relied on an externment order for arriving at its subjective satisfaction.

The court noted that it had set aside the said externment order with a detailed judgment much before the impugned preventive detention order was passed. Hence, the preventive detention order was passed on the basis of wrong material, the court said.

Therefore, the court quashed the impugned orders and directed the release of the detenu.

Case no. – Criminal Writ Petition No. 738 of 2022

Case Title – Ashokrao s/o Uttamrao Pawar v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 86