PTI
New Delhi
The Supreme Court on Wednesday expressed deep concern over the “growing practice” of routinely challenging bail orders, saying that a legal flaw in a bail order is not, by itself, sufficient grounds to cancel an accused person’s liberty.
The observations were made by a bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana while dismissing the separate pleas of the Enforcement Directorate and the Chhattisgarh government against the High Court order granting bail to Chaitanya Baghel, son of former chief minister and senior Congress leader Bhupesh Baghel, in alleged liquor scam cases.
“There was a judgment which said that when bail is granted, you do not need to give reasons. But when you don›t grant the bail then you give reasons,” Justice Bagchi said.
Senior advocate Mukul Rohatgi urged the bench to reiterate this principle in a judgment to ensure that liberty of an accused is not curtailed ordinarily.
While declining to cancel Baghel’s bail, the bench expunged adverse remarks made by the High Court against the economic offences wing (EOW) of Chhattisgarh Police.
The bench kept the larger questions of law relating to cancellation of bail open for consideration in an appropriate case. During the hearing, Justice Bagchi questioned whether the legal correctness of a bail order could, by itself, justify depriving an accused of liberty.
Stressing that the top court’s jurisdiction under Article 136 is exercised sparingly, he said that interference is warranted only where the continuation of bail seriously undermines the administration of justice.
Article 136 of the Constitution grants the top court discretionary power to grant ‘special leave to appeal’ against any judgment, decree, order, or sentence passed by any court or tribunal in the country.
«We have developed a judicial review doctrine to test liberty now. Can the correctness of an order be the sole test to deprive the liberty of an accused» Justice Bagchi asked.
He asked the bar to reflect on whether an erroneous bail order should automatically lead to cancellation of bail.
The judge observed that the true test for cancellation of bail is whether the accused›s continued liberty obstructs the administration of criminal justice, rather than whether the order granting bail is legally deficient.
Referring to the increasing number of challenges to bail orders, Justice Bagchi said the court›s effort to ensure doctrinal correctness in bail jurisprudence has had unintended consequences.
«Our jurisprudence in bringing about correctness in granting bail is delaying the further cause of trial. The number of special leave petitions has increased so much because of this in recent years,» he said.
Justice Bagchi further cautioned that excessive focus by prosecutors and investigating agencies on challenging bail orders could divert attention from the primary objective of securing convictions through timely trials.
«If a prosecutor or investigator is so focused on all this, then the ultimate goal of securing conviction gets compromised,» the judge said.
The bench also referred to the increasing length and complexity of bail orders in cases under stringent statutes such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA).
Justice Bagchi said that bail orders in such matters frequently run into 40 to 50 pages, adding that judicial time must be apportioned cautiously.
The CJI also expressed concern over an increasingly «rigid approach» adopted by high courts in dealing with bail applications.
Referring to a recent matter before the Allahabad High Court, the CJI said that an advocate had remained in custody for nearly two years following a complaint by another judge.
Senior advocate Kapil Sibal said that the trend of detailed bail orders was, in part, a consequence of directions issued by the Supreme Court itself requiring courts to record elaborate reasons while granting bail.
