Supreme Court Stays Rajasthan High Court Order Which Restrained Police From Arresting Accused In Cases Where Maximum Sentence Is Up To 3 Years

The Supreme Court on Tuesday stayed the Rajasthan High Court Order which restrained the police from making the arrest of the accused persons, who are charged with an offence where the maximum sentence is up to three years, till 17th July, 2021.

The Supreme Court has also stayed the direction of High Court Single Bench which directed The Registrar (Judicial), Jaipur Bench, Jaipur & the Registrar (Judicial), Principal Seat, Jodhpur, not to list bail applications under Section 438 Cr.P.C in offences where maximum sentence extends upto three years and the offence is triable by First Class Magistrate till reopening of Courts after Summer Vacation.

A vacation bench comprising Justices Vineet Saran and BR Gavai stayed the order on a special leave petition filed by the High Court of Rajasthan against the single bench order.

The Bench was hearing a petition filed by High Court challenging the May-17 Order of single bench directing the DGP to issue instructions to all the Officers concerned in the State of Rajasthan not to make arrest of persons in cases where accused is charged under an offence where maximum sentence extends upto three years and the offence is triable by First Class Magistrate. The order was to remain in operation till 17th July, 2021.

Senior Advocate Vijay Hansaria, appearing for the High Court of Rajasthan, told the Supreme Court bench that the single bench directions were problematic. The senior lawyer informed the bench that last year also, the same single bench had issued an order to not list bail applications during the lockdown period, and that the said order was stayed by the Supreme Court on an appeal filed by the Rajasthan High Court.

Senior Advocate Manish Singhvi, appearing for the State of Rajasthan, supported the submissions of the High Court.

Following that, the Supreme Court issued notice on the petition, and ordered that the directions in paragraphs 9, 10 and 11 of the single bench order will remain stayed. The matter has been tagged along with the last year's special leave petition filed by the Rajasthan High Court against the single bench order.

(Case : HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR Versus THE STATE OF RAJASTHAN AND ANR)

Matter before the High Court

The singe bench of Justice Pankaj Bhandari of the Rajasthan High Court was hearing an anticipatory bail application filed for offences under Sections 457 and 354 of IPC read with Section 67 of I.T. Act, wherein, the maximum sentence, which may be awarded after conviction, may extend to 3 years.

Apprehending arrest, the petitioner moved an anticipatory bail application before the Sessions Judge and on dismissal of the same, he approached the High Court.

Importantly, the court noted,

"There is a huge pendency of bail applications and as on date, as many as five Judges at Jaipur Bench of Rajasthan High Court are hearing bail matters in addition to Miscellaneous Petitions, Criminal Appeals etc., which are assigned to them."

Further, the Court noted that it was alive of the fact that in cognizable and non-bailable offences, police has a right to arrest the accused, however, taking note of the grave condition of the pandemic, lockdown and various guidelines issued by the State the Court asked the Additional Advocate General,

"Whether the police, which is involved in other more important tasks of enforcing the lock-down, be directed not to arrest an accused charged with offence punishable with a term, which may extend upto 3 years till situation normalizes and for the time being, till 17th of July, 2021?"

To this, the Additional Advocate General replied in affirmative.

Thus, the Court opined that the arrest of persons in cases where imprisonment extends up to 3 years and are triable by First Class Magistrate under present circumstances will prove to be counter-productive and if a person, who is arrested and produced before the Magistrate and thereafter, sent to Jail is an asymptomatic carrier of Covid-19, the inmates may be put at risk.

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