By Judicial Order, High Court Cannot Render Advice : Supreme Court

While deprecating a High Court order for overlooking the long period of incarceration undergone by the petitioner, the Supreme Court recently reiterated that Courts cannot render "advice" through judicial orders and stayed a direction calling for a periodical report from Trial Court on the progress of trial.

"We are of the view that issuing such a direction amounts to interference with day to day functioning of the Trial Court which cannot be done in the light of the recent Constitution Bench judgment in the case of High Court Bar Association, Allahabad v. State of U.P. & Ors.", the Bench of Justices Abhay S Oka and Ujjal Bhuyan said.

To put briefly, the petitioner (alongwith others) was accused in a case registered under Sections 302/452/201/120B/34 of IPC and provisions of the Maharashtra Control of Organized Crime Act (MCOCA). He was taken into custody in 2014.

At first, he filed a bail application before the Special Court, but the same was rejected in 2018. Thereafter, he approached the Bombay High Court with a bail plea, but the same was also disposed of with two directions - (i) that the trial Judge complete trial within 6 months, and (ii) that the trial Judge give periodical report to the High Court Registry every 3 weeks until conclusion of trial. 

Aggrieved by this order, the petitioner moved the top Court, which issued notice to respondent-State, noting that the petitioner had undergone incarceration of 10 years and as per his counsel's submission, only 16 out of 30 witnesses had been examined. It was also of the prima facie view that instead of deciding the bail application on merits, the High Court exercised "advisory jurisdiction" by giving advice to the prosecutors, defence lawyers and Trial Court.

"By judicial order, the High Court cannot render advice. What was overlooked was the effect of very long incarceration of the petitioner."

Further, the direction passed by the High Court for submission of periodical report was stayed by the top Court, reiterating that it amounted to interference with the Trial Court's day-to-day functioning. The observation came in light of a recent Constitution Bench judgment in High Court Bar Association, Allahabad v. State of U.P. & Ors.

The stayed direction read thus:

"(b) I direct learned trial Judge seized of the case to give periodical report to the Registry of this Court after completion of every three weeks, till the trial is completed."

Notably, the High Court had recorded in its order that the petitioner did not file/press the bail plea on merits. Instead, it was restricted to the violation of right of speedy trial. To quote,

"When query is made as to whether the Applicant has applied for bail on merits or not, it is submitted that his Application is restricted only on account of violation of right to speedy trial...he has approached this Court in the year 2022, with grievance about denying right to speedy trial. Let us presume that the Applicant has not approached to this Court on merits".

Elucidating expectations had from prosecutor of the case, advocates of the petitioner and the Judge seized of the matter, the High Court further tendered "advice" as follows.

With regard to the prosecutor, the High Court observed that there was some inconsistency between the first witness list and the second witness list, without any satisfactory explanation. So, it advised the prosecutor to be more vigil during further trial.

"Ultimately, the Special Public Prosecutor who is in-charge of the case is expected to be aware about materials collected during investigation and witnesses to be examined on behalf of the prosecution."

Insofar as petitioner's advocates were concerned, the High Court expressed an expectation that they shall prioritize the matter and not seek longer date.

From the trial Judge, it was said, there is expectation of deciding matters as early as possible and not allowing any contingency to delay. "...it is responsibility of the Judge, who is seized of the mater to see that both sides perform their respective obligations and if they are not performing without justifiable reason, learned Judge who is seized of the matter to pass appropriate orders including imposing heavy costs on either side and not nominal costs, from time to time considering the facts and circumstances of the case", observed the High Court.

Recording that there were "daily grievances" about Thane District cases of undertrial prisoners not being heard, the High Court further advised that if the trial Judge in the present case is overburdened with expedited matters, he is at liberty to bring the same to the notice of the Principal District Judge for apt directions/action.

Appearance: AoR Rishi Malhotra

Case Title: Yogesh Narayan Raut v. State of Maharashtra, SLP (Crl) Diary No. 8181/2024

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