The apex court while hearing a criminal appeal [NO.1862 OF 2013] ruled that high courts should not direct the Magistrate to grant bail to an accused on surrender.
The bench of Justice Ranjana Prakash Desai and Justice Madan.B.Lokur said,"such orders put restriction on the power of the trial court to consider the bail application on merits and grant or reject prayer for bail. We are of the opinion that such orders should never be passed."
In the instant case a non- bailable warrant was issued against the accused by SDJM/Magistrate, and the accused applied for anticipatory bail in Orissa High Court,which disposed of the application. But the High Court gave the direction that in the event the accused surrenders before the SDJM, within four weeks and moves an application for bail, he shall be released on bail on such terms and conditions as the Magistrate deems fit and proper.
Considering the order legally unsound, the Supreme Court observed that, when the High Court rejected the application for anticipatory bail, it was sufficient indication that the High Court thought it fit not to put a fetter on the investigating agency's power to arrest the accused. Therefore, after rejecting the prayer for anticipatory bail, the High Court should not have negated its own order by directing that respondent be released on bail.The bench noted, "It overlooks the scope and purport of Sections 438 and 439 of the Code of Criminal Procedure, 1973."
The apex court quashed the order and directed the SDJM to decide respondent's application on merits and in accordance with law.