Human Liberty Is A Precious Constitutional Value: Supreme Court In Arnab Goswami Interim Bail Order

(Judicial Quest News Network)

Supreme Court today called upon all courts in the judicial hierarchy to address the issue of bail applications not being heard and disposed of in a timely manner.

A division bench comprising of Justices DY Chandrachud and Indira Banerjee delivered the Judgement today.

It is urged that administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with.

Calling upon the courts across the country the Country address this issue of pending bail applications, the judgement authored by Justice Chandrachud states

“As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition.”

The Court described that the National Judicial Data Grid (NJDG) statistics on the number of bail applications pending before the High Courts and subordinate courts are 91,568 bail applications were pending before the High Courts, while 1,98,861 such please were pending before the district courts.

This NJDG information is quite valuable instrument to promote access to justice, particularly in matters concerning liberty.

It also urged that the Chief Justices of High Courts should this valuable information to democratise access to justice.

Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty.The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to

Justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition.

It is further mentioned in the Judgement that “The interim protection which has been granted to the above accused by the order dated 11 November 2020 shall continue to remain in operation pending the disposal of the proceedings before the High Court and thereafter for a period of four weeks from the date of the judgment of the High Court, should it become necessary for all or any of them to take further recourse to their remedies in accordance with law.

The Judgement says that here was a failure of the High Court to discharge its adjudicatory function at two levels – first in

Declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Court did have the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law.

The Court said that the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:

(i) The nature of the alleged offence, the nature of the accusation and the

Severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar

Considerations.

Since the proceedings are pending before the High Court, we clarify that

the observations on the facts contained in the present judgment are confined to a determination whether a case for grant of interim protection was made out. Equally, the observations which are contained in the impugned order of the High Court were also at the interim stage and will not affect the final resolution of the issues which arise and have been raised before the High Court.

The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the CrPC.

While dealing with the petition under section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR.

If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established.

As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellant‘s application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case.

However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power.