Uttarakhand High Court
Rajeev Khanna And Another vs State Of Uttarakhand on 11 January, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 26 of 2017
Rajeev Khanna & another ....... Petitioners
versus
State of Uttarakhand ....... Respondent
Mr. U.K. Uniyal, Sr. Advocate assisted by Mr. Sandeep Kothari, Advocate
for the petitioners.
Mr. K.S. Rautela, Government Advocate assisted by Mr. D.K. Sharma,
Addl. Advocate General and Mr. Raman Kumar Shah, Dy. Advocate
General for the respondent State.
U.C. Dhyani, J.(Oral)
By means of present criminal writ petition, the petitioners seek a writ, order or direction that the notice period provided in Chapter XVIII, Rule 18 of Rules of Court, 1952, as applicable in the Hon'ble High Court of Uttarakhand, be reduced and the bail application of the petitioners, which was noticed in the office of the Government Advocate on 07.01.2017 be heard earlier.
2) I have heard learned Senior Counsel for the petitioners, learned Government Advocate, learned Addl. Advocate General & learned Dy. Advocate General for the State and gave anxious consideration to the submissions made by them.
3) The short question which arises for consideration of this Court is whether the High Court can entertain a bail application prior to the expiry of ten days time, or not?
4) A decision rendered by Hon'ble Allahabad High Court in Gyan Swaroop Gupta vs State of U.P., 2 reported in 1993 CRI. L. J. 3895, has been placed before this Court. Paragraphs no. 11 and 14 of the said decision read as below:
"11.The first decision cited by Sri V.C. Tewari is 1984 U.P. Criminal Rulings 159 (1984 Cri LJ 1156) (Ramesh Chandra Kapil vs High Court of Judicature at Allahabad) where the Division Bench held that the jurisdiction of this Court to entertain and dispose of the bail application is not inhibited either by Language of Rule 18(2)(3) of Chapter XVIII of the High Court Rules. The inherent power which vests in a Court of record such as the High Court to regulate its own procedure for dealing with the matters of which it is seized. The Division Bench relied on observations of another Division Bench reported in 1970 All LJ 328 (Paras Nath Tiwari v. Bhaiya Lal) and quoted as under:
"The rules only regulate the sittings of the Court. They are not the source from which the Judges of this Court derive jurisdiction to decide cases."
"They are framed for convenience and proper working of the Court and do not affect the inherent jurisdiction of the Bench receiving a case to pass such orders as it considers just and proper."
Thus, the High Court being a Court of record is invested with inherent jurisdiction to dispose of the cases coming before it and prescribe an appropriate procedure for that purpose. To quote again from Paras Nath Tiwari's case (supra):
"Once the case is before a Bench, it has full jurisdiction to decide it and is not fully seized of it but has complete dominion over it to fix dates and decide it in accordance with its view and the law on the subject.
We are of the opinion that the regulation of the sittings of the Judges of the Court is not a judicial function that the Chief Justice performs. It is only an administrative power discharged to facilitate the 3 performance of the judicial functions of the Court by the various Judges who constitute it.
In fact, this is the substance of the well known legal practice CURSUS CURLAF LEX CURAE. Every Court is the guardian of its own records and matter (master) of its own practice."
14. Thus, from the consideration of the above case law it is clear that the provision of Chapter XVIII, Rule 18(2)(3) of the High Court Rules do not curb or curtail the powers of the High Court for entertaining a bail application prior to expiry of ten days time. The Court has inherent power to condone the period provided in the facts and circumstances of each case according to the needs of justice. The objection of the learned Addl. Government Advocate about the ten days time for notice and instructions is merely a technical objection which was waived by one Hon'ble Judge of this Court, who after considering the facts and circumstances of the case and examining the exigencies was pleased to exercise its jurisdiction in favour of the accused applicant. I being a Court of coordinate jurisdiction do not consider it appropriate nor there are any such circumstance which may lead to any other conclusion that the Hon'ble Brother Judge has taken. The Hon'ble Judge had not finally decided the bail application on the said date. He had granted a short term bail and allowed two weeks time to the Addl. Government Advocate to obtain instructions in the matter."
5) It will also be profitable to read Rule 18(2)(3) of the High Court Rules occurring in Chapter XVIII as below:
"18. Application for bail. -(1) No application for bail shall be entertained unless accompanied by a copy of 4 judgment or order appealed against or sought to be revised and a copy of order passed by the Sessions Judge on the bail application for the applicant and unless the accused has surrendered except where he has been released on bail after conviction under Section 389(3) of the Code of Criminal Procedure, 1973.
Explanation. -The copy of the order refusing bail passed by the Sessions Judge shall either be a certified copy or the copy furnished by the Sessions Judge free of charge to the accused.
(2) Every application for bail in a case which is under investigation or which is pending in a lower Court shall state whether application for bail had or had not been previously made before the Magistrate and the Sessions Judge concerned and the results of such applications, if any.
(3) Save in exceptional circumstances -
(a) No order granting bail shall be made on an application unless notice thereof has been given to the Government Advocate and not less than ten days have elapsed between the giving of such notice and the hearing of such application.
(b) If the application for bail has not been moved within two days after the expiry of the aforesaid period of ten days, the applicant or his counsel shall give two days previous notice to the Government Advocate as to the exact date on which such application is intended to be moved.
(c) Where the prayer for bail is contained in a petition of appeal or application for revision, notice thereof may be given to the Government Advocate the same day prior to the hearing of such petition or application and the fact of such previous notice having been given, shall be endorsed on such petition or application. Alongwith such notice a certified copy or one attested to be true by the counsel, of the judgment 5 appealed from or sought to be revised shall also be given to the Government Advocate."
6) Learned Senior Counsel for the petitioners emphasised that the petitioners have been granted bail under Arms Act as well as under Excise Act by learned A.C.J.M., Kotdwar. They have, however, been denied bail under the Forest Act. They are languishing in Pauri Jail where temperature is minus three degree centigrade.
7) It is reiterated that no offence punishable under the Forest Act is made out on a bare perusal of the FIR and, therefore, the petitioners should not be asked to remain in jail any longer.
8) The question, therefore, before this Court is whether on the basis of grounds which have been taken up in the writ petition, notice period as provided in Chapter XVIII Rule 18 of the Rules of the Court, 1952, should be reduced and the bail application of the petitioners, which was noticed in the office of Government Advocate on 07.01.2017 be heard earlier?
9) In the writ petition, the petitioners have mentioned the sequence of events in a chronological order, which has led to filing of FIR against them and others. In the writ petition, Rule 18 of Chapter XVIII of the High Court Rules has also been referred.
10) Learned Senior Counsel for the petitioners is at pains to argue that accepting the allegations made in the 6 FIR to be true, no offence under the Forest Act is made out. The status of the petitioners cannot be treated to be of a trespasser, inasmuch as the petitioners were guests and were of bona fide belief that permission for the gathering or staying in the guest house was required only by the host and further no authority of forest department, much less, the attendant at the guest house has ever informed the petitioners that individual permission will be required for staying in the guest house situated within the reserve forest. Needless to mention here that there was no impediment for the petitioners in getting the permission for entry as well as of stay in the reserve forest.
11) Petitioners were merely present in the gathering. Neither the liquor nor any weapon has been recovered from their possession. No individual role has been assigned to the present petitioners, submitted learned Senior Counsel.
12) A reference of law laid down by the Hon'ble Allahabad High Court has also been given in the body of writ petition with the prayer that the period of notice be reduced.
13) In the grounds of writ petition, aforementioned submissions have been reiterated.
14) Learned Government Advocate and learned Dy. Advocate General have filed their objections with the request to permit the respondent State to grant 10 days' 7 time to file detailed counter affidavit in the matter. It is the submission of learned Government Advocate as well as learned Dy. Advocate General that no order granting bail should be made on an application unless notice therefor has been given to the Government Advocate and not less than 10 days have lapsed between giving of such notice and the hearing of such application.
15) Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. For facilitating hearing of the writs, appeals, applications etc., Hon'ble Allahabad High Court has framed its Rules, which are known as Rules of the Court, 1952. The same are also applicable to the High Court of Uttarakhand except where certain rules have been modified or amended by this Court. Rules of 1952, therefore, contain the procedure prescribed by law.
16) There is no denying the fact that the Court may, in appropriate cases, hear the bail application even before the expiry of the prescribed period of 10 days, as has been held by Hon'ble Allahabad High Court in Chinta Mani Tripathi vs State of U.P., 1991 CRI. L.J. 1662.
17) But the question arises - what may be those appropriate cases in which the Court should exercise its discretion and waive or reduce the prescribed period of 10 days?
818) The very object of giving 10 days' notice to the State is to afford opportunity of hearing to the State and collecting the material in relation to the bail application of the detenue.
19) In the instant case, when the learned Government Advocate and learned Addl. Advocate General submitted that they require at least 10 days' time to collect the material, the Court should not, ordinarily, sit over their option of granting them sufficient time to contest the bail application.
20) If any order is passed by the Court on such application, it will have far reaching consequences. On enquiry from the Registry, it has been informed that this Court in its 16 years span has never done it. In a nutshell, we have yet to come across a case in which 10 days' notice to the prosecution has been waived or reduced by this Court.
21) The facts and circumstances in the decisions which have been relied upon by learned Senior Counsel for the petitioners are on different footings and, therefore, no benefit of such decisions can be given to the petitioners in the instant case.
22) It is a gospel truth that nobody wants to be detained in jail even for a minute. The petitioners, like any other detenue, are detained, in the instant case. Grounds have been taken to show that no offence has been made out 9 against the petitioners. That can very well be seen at the time of disposal of bail application.
23) One would argue that why should they be detained even for a minute. True. But it is said that a fair hearing is the hearing which is fair to the accused as well to the prosecution. Should the prosecution, in the instant case, be denied its due to contest a bail application? What are the exceptional circumstances in the instant case? It is not a bailable offence where a person can claim bail as a matter of right. The FIR has been lodged against the accused persons for non-bailable offences. The State should, therefore, be given appropriate time to respond to the grounds taken up by the petitioners in the present writ petition, as also the grounds taken up by them for seeking bail.
24) Everything should be done in a manner known to law. The procedure known to law is that 10 days' notice should be given to the prosecution. Of course, the Court is armed with exceptional powers to deal with an extra ordinary situation. What is extra ordinary situation in the present case, which may distinguish this case from other cases in which the bail applications are filed? What is so glaring about it? None, in the humble opinion of this Court.
25) There is yet another aspect of the case. If the bail applications are heard and decided in the absence of appropriate instructions by the prosecutor from the State 10 agency, it will do more harm than good to the judicial system. In appropriate cases, even the Court, after the expiry of 10 days notice, insists the prosecution for filing counter affidavit to do complete justice.
26) It is a writ petition in which the bail application has not been filed by the petitioners / applicants in the Registry as yet and, therefore, the petitioners, by means of present writ petition, seek to reduce the time period between giving of such notice and the hearing of such application.
27) Whosoever seeks bail, will, of course, say that the provisions of law have been violated, he is innocent and has been wrongly framed by the police. The petitioners have also taken the same grounds in the present writ petition. So what is peculiar about their case which is distinguishable from other similar cases?
28) Judicial discretion is a discretion to be exercised by the Courts in discerning the course prescribed by law. Judicial power is never exercised for the purpose of giving effect to the will of the judge. It is always for the purpose of giving effect to the will of the Legislature (framers of the rules, in the context of present case), or, in other words, to the will of the law.
29) The word 'exceptional' may also mean unusual, may also mean special. This Court does not see any exceptional, unusual or special reason as to why 11 hearing of (yet to the filed) bail application be preponed without expiry of 10 days' notice period to the State Government.
30) The Court is, therefore, not inclined to accede to the request of the petitioners for reducing the time period between giving of notice to the State Government and hearing of such application.
31) Writ petition is, accordingly, dismissed.
(U.C. Dhyani, J.) Dt. January 11, 2017.
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