I must record that it is shocking to note that the learned Session Judge also failed to appreciate the legal position and erroneously rejected the prayer of the petitioner on the ground of "seriousness of offence and participation of the petitioner into the commission of crime", the court said.
A man accused of certain bailable offence filed a plea before the Sessions Court in Shekhpura district in Bihar seeking anticipatory bail.
The Sessions Court dismissed his plea, not because it is not maintainable, but on the ground of "seriousness of offence and participation of the petitioner into commission of crime".
Aggrieved with this dismissal, the accused approached the high court and the case came up before Justice Ashwani Kumar Singh.
Justice Singh said it is shocking to note that the Sessions judge failed to appreciate the legal position in the matter of anticipatory bail, and that this case reveals a very disturbing state of practice prevailing in the said court. He said: “The order speaks a volume about the casual manner in which the learned Session Judge is disposing of the bail matters. He ought to have rejected the application on the ground of its non-maintainability considering the provisions prescribed under Section 438(1) of the Cr. P.C.”
The court then quoted relevant provisions of the Criminal Procedure Code to explain that, in order to seek a pre-arrest bail, there must be an accusation against the person concerned of having committed non-bailable offences for which he has reason to believe of getting arrested and only on such condition precedent, he may approach either the high court or the Court of Sessions for a direction that he may be released on bail in the event of such arrest.
“Such an erroneous order is not expected from a Judicial Officer of the rank of Session Judge. This Court hopes and trusts that in future the Officer would be more cautious while passing judicial order,” the court remarked.
In the facts of this case, Justice Singh said: “Since the provisions prescribed under Sections 341, 323, 342, 363 and 504 read with 34 of the Indian Penal Code under which the FIR has been instituted against the petitioner are all bailable in nature, the right to claim bail by the petitioner in the case in hand is an absolute and indefeasible right. There is no question of discretion in such matters. However, instead of appearing before the court of Magistrate and seeking bail under Section 436 of the Cr. P.C., the lawyer conducting the case in the court below filed an application under Section 438 of the Cr. P.C. seeking pre-arrest bail.”
The court made the following remarks for the lawyer community while dismissing the appeal. It said: “At this stage, I must also say that even the lawyers assisting the Court either for the petitioner or the prosecution are supposed to conduct the case responsibly. They have failed to do so in the court below as also before this Court. They are officers of the Court. They have a duty towards the client as also towards the Court. It is not expected from an advocate that he would suggest his client to file pre-arrest bail application in a case instituted only for bailable offences. The lawyer appearing for the State is also not expected to oppose the application mechanically. He also has a duty to assist the Court in arriving at a just decision in a case. I say no more.”