1. The present application reveals a startling and disturbing state of affairs.
2. The applicant was in custody in connection with an FIR, being C.R. No.I18/2008, registered with Bavla Police Station, for offences punishable under Sections 365, 394, 397 and 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. He moved an application for grant of bail under Section 439 of the Code of Criminal Procedure before this Court, which was registered as Criminal Miscellaneous Application No.5738 of 2009. By an order dated 13.05.2009 passed in the above application, this Court enlarged the applicant on bail upon his executing a personal bond of Rs.10,000/ (Rupees Ten Thousand Only) with one solvent surety of the like amount to the satisfaction of the Trial Court, subject to certain conditions as mentioned in the said order.
3. To the shock and surprise of this Court, the very same applicant has moved the present application for grant of bail under Section 439 of the Code of Criminal Procedure, even though, by the earlier order dated 13.05.2009 passed in Criminal Miscellaneous Application No.5738 of 2009, he has already been enlarged on bail. This order still holds good.
4. The averments made in the present applicant disclose the casual attitude which has prevailed with all concerned regarding the needless deprivation of the valuable fundamental right to life and liberty of the applicant, enshrined in Article 21 of the Constitution of India. As per the averments made in the application, what occurred after grant of bail to the applicant by the abovementioned order is best quoted, as below:
“It is submitted that after receiving the bail packet, those were handed over to the friend's father for further proceedings which is to be carried out in lower court. It is respectfully submitted that thereafter, those bail packet was never tendered before lower court by the concern (sic) parties and therefore, petitioners (sic) could not come out from the jail.
6. It is submitted that recently some friends of the petitioners (sic) approached the advocate who appeared in earlier application and thereafter this facts came into notice of Ld. Advocate and therefore, immediate (sic) thereafter, earlier order was obtained from computer.”
5. Incidentally, the same learned advocate who is appearing in the present application has appeared for the applicant in Criminal Miscellaneous Application No.5738 of 2009. While passing the order dated 13.05.2009, granting bail in that application, the Court had permitted Direct Service of the bail order, as prayed by the learned advocate for the applicant. It appears that the learned advocate has not taken trouble to ensure that the bail order reaches the Trial Court or the jail authorities. The explanation for this monumental lapse, if at all it can be called an explanation, is absolutely vague and unsatisfactory. To the mind of this Court, it conceals more than it reveals. The Court does not wish to say anything further regarding this aspect.
6. It appears from the record that before filing the present application, the applicant approached the Sessions Court by filing a bail application which was rejected by order dated 27.06.2012, on the ground that as the High Court has already passed the order dated 13.05.2009 in Criminal Miscellaneous Application No.5738 of 2009, it would not be appropriate for the Sessions Court to pass any order. Thereafter, the applicant has approached this Court again by filing the present application for grant of bail.
7. On 20.07.2012, this Court issued Notice and directed the learned Additional Public Prosecutor to verify the factual position from the papers available with the Investigating Officer and Jail Authorities and to report to the Court. On 30.07.2012, Mr.N.J.Shah, learned Additional Public Prosecutor submitted a copy of the statement dated 28.07.2012 of the applicant for the perusal of the Court. This statement has been recorded after passing of the order dated 20.07.2012. The applicant states that though he was in knowledge of the previous order dated 13.05.2009 granting him bail, he could not furnish the Bail Bond as his financial condition was poor. The contents of this statement are at variance with the averments made in the application. It seems that there is more to the matter than meets the eye. No undertrial prisoner would like to stay in jail for even a day after the Court releases him on bail. It was open to the applicant to file an application, either in person or through an advocate, for modification of the conditions of bail if he faced any financial difficulty. However, that was not done for reasons not known and the applicant has remained in jail for about three years after grant of bail.
8. While it is imperative that the applicant gets the benefit of the bail order already passed in his favour, it is the duty of this Court to ensure that such incidents do not happen again, whatever may be the reason. To this end, this Court, on 30.07.2012, had called for the Record and Proceedings of Criminal Case No.1029 of 2008 from the Court of learned Judicial Magistrate, First Class, Dholka, and directed the authorities to produce the applicant before the Court on 09.08.2012.
9. The applicant is present in person before this Court, today. On being asked whether he was given a copy of the bail order dated 13.05.2009, the applicant has stated that it was never supplied to him, but he had come to know that bail had been granted to him. This is a most unfortunate situation, to say the least. The applicant has had to remain in jail for about three years after this Court released him on bail on 13.05.2009, for no fault of his own. It amounts to nothing less than a serious deprivation of his fundamental right to life and liberty. But who is responsible for this situation? It is the casual attitude and carelessness of all concerned, that is writ large on the face of the record.
10. Mr.Prakash K.Jani, learned Public Prosecutor, appearing with Mr.N.J.Shah, learned Additional Public Prosecutor, for respondent–State, has submitted that neither the Jail Authorities nor the Police Authorities had any knowledge of the order dated 13.05.2009 passed in Criminal Miscellaneous Application No.5738 of 2009, as the learned advocate for the applicant had taken Direct Service of the said order and the Registry of this Court had handed over the Bail Packet to him. This Bail Packet never reached the concerned authorities or Court, leading to the present unfortunate situation.
11. In a case like the present one, the priority of this Court would be to ensure that the applicant gets the fruit of the bail order earlier granted in his favour, though belatedly, and not to apportion blame or fix responsibility. That can only be done by an inquiry, which course of action is not contemplated by this Court. However, the present is a fit case which should serve as an eyeopener to all concerned with the administration of justice, including the Bar and the Bench. It highlights the serious need for introspection and evolvement of mechanisms to ensure that such an incident is not repeated.
12. The State Authorities appear to be oblivious of the passing of the earlier order granting bail, as submitted by the learned Public Prosecutor. The State is the prosecutor and the main litigant in every criminal case. It, therefore, ought to have knowledge of the outcome of every criminal case, be it an order passed in a bail application or any other criminal matter. The Office of the Public Prosecutor, in consultation with the State Government, are directed to evolve a mechanism to ensure that the outcome of every criminal matter, especially orders on bail applications, are reported to the concerned Police and Jail Authorities so that a situation like the present one can be avoided. It is directed that the needful is done as expeditiously as possible, and definitely within a period of four weeks from the date of receipt of a copy of this order. The Court shall be apprised of the steps taken in this regard at the end of the stipulated period of time.
13. Next comes the issue regarding Direct Service of orders of the Court. In civil matters, when Direct Service is requested for by learned advocates, and granted by the Court, the learned advocate is required to file an affidavit of Direct Service in the Registry, which makes it clear whether service has been effected, or not. It would be worth considering whether similar directions can be issued in cases where Direct Service of bail orders is granted by the Court, on the request of learned advocates. Learned advocates can be directed to file affidavits of Direct Service in the Registry within a reasonable period of time to ensure that the bail order has been served upon their clients. The Registry is, therefore, directed to place this matter before Honourable the Chief Justice on the administrative side, for consideration and passing appropriate directions in this regard.
14. Insofar as the applicant is concerned, he has already been granted bail by order dated 13.05.2009 in Criminal Miscellaneous Application No.5738 of 2009. The applicant is, therefore, directed to be released on bail on the same terms and conditions, as imposed by in the order dated 13.05.2009 passed in Criminal Miscellaneous Application No.5738 of 2009.
15. The applicant, who is present in the Court, has submitted that he has arranged for a surety. Mr.Zahir Rana, who is known to the applicant, is present in the Court and has stated that he shall arrange for the surety for bail of the applicant. The applicant has further consented that the Bail Packet be handed over to Shri Zahir Rana.
16. In the peculiar facts and circumstances of the case and without making it a precedent in other cases, the Direct Service of the Writ of this order, along with a fresh Writ of the order dated 13.05.2009 CR.MA/9654/2012 10/10 JUDGMENT passed in Criminal Miscellaneous Application No.5738 of 2009, be handed over by Registry to Shri Zahir Rana, today, in addition to the normal mode of service by the Registry.
17. The Record and Proceedings of Criminal Case No.1029 of 2008 be sent back to the concerned Court.
18. The application is disposed of, in the above terms.
(Smt. Abhilasha Kumari, J.)
(sunil)