The prerogative of Sessions Court and High Court to grant Bail to an apprehender is absolute under Section 438 of Cr.P.C. But the question is how soon to dispose of an AB petition by these Courts?
When an Accused files an AB Petition, the Court prima facie dismiss it or take it up for judicial consideration. On both counts – in the first instance, Court relies on information supplied to it by the Petitioner himself in support of his bail petition together with evidences [if any] he adduced. It may dismiss the Petition provided the Petitioner was found to be a habitual offender or his judicial remand was necessitated in the given background of the offence committed by him. The role of the Prosecution was limited to an extent either it affirm or it says no reply from the concerned Police. Otherwise, the Court’s decision was final.
In the event, the Court takes up the AB Petition for judicial consideration; in the interest of equity of justice, it is pertinent for the Court to do two things under the Law;
- The Court has to grant interim protection to the Petitioner, and
- Give notice of such interim protection to the Prosecutor and Superintendent of Police and calls for reply on advancing AB to the Petitioner within 7 days.
The purpose of such privilege granted to the State was just to ensure an opportunity of being heard and for the reasons that the State’s law & order are in the very hands of the Police. Whereas, the State can either raise objections or it might restrain.
But the point is, how long the opportunity of being heard the Prosecution is welcomed by the Courts?
Courts, particularly District / Sessions Courts are giving long time to Prosecution for its reply and the same was unwarranted in these days of communications. In a case of Bail and Anticipatory Bail it was expected of the Courts to dispose of such applications expeditiously. Unfortunately the same was not happening!
Take for instance, in a case where two senior citizens filed an AB against an unknown FIR and the District Court originally took up the matter on 05-08-2021, it then posted the matter for 12-08-2021, then on 19-08-2021 and now on 26-08-2021 – all for what – just to seek reply from the Prosecution. Interestingly the Prosecution on 19-08-2021 informed the Court that the case was in CSR stage?
Our understanding of Code of Criminal Procedure is; there is no reference of CSR anywhere in this statute book. Then how the Court would accept to such non-existence yet an obstinate utterances of the Prosecution after delving on the Petition for about 15 days? Very unfortunate was even after hearing such [legally untenable] stage, the Court did not come forward to give any interim protection to those medically unfit senior citizens.
Unfortunately, Courts are tend to behave in a strange manner and put Petitioners under unnecessary fear. The Courts are not coming forward to provide interim protection to the Petitioners and in manier cases it was found that the Petitioners are put under the mercy of law enforcers for not getting them arrested. This was not expected of by the lawmakers under Section 438 of Cr.P.C. if interpretation done in right perspective.