Supreme Court: High Court Bail Orders Must Be Treated as Final

NEW DELHI: In an important exposition on the working of criminal justice process without diluting the primacy of individual liberty, the Supreme Court on Wednesday said that once a high court grants bail to an accused, it must be treated as final and SC must not entertain appeals against the order by the state, reports DhananjayMahapatra. A bench of CJI Surya Kant, and Justices Joymalya Bagchi and V Mohana made the statement as they disposed of Chhattisgarh govt's appeal against grant of bail to Chaitanya Baghel, son of ex-CM Bhupesh Baghel, despite having serious reservations about HC's order, and said judicial system must get back to the trend during 1980s, when then CJI P N Bhagwati had said HC's orders granting bail should be final.

CJI Surya Kant said HCs appear to have become very conservative in granting bail and write 40-50 pages while granting or rejecting bail without realising the impact of long discussions on merits of the case in a fair and impartial trial. The bail orders should not exceed three to four pages. Justice Bagchi suggested that appeals to SC in matters of bail should be made in cases where it has been denied. "Cases where liberty is deprived stand on a completely different footing in SC which is the enforcer of fundamental rights. When it is cancellation of bail, that is diminution of liberty, we must weigh it against victim's rights and the societal interest. These are the guiding principles."

The bench said the states' penchant for challenging bails granted by HCs in the last two decades is the single largest reason for the burgeoning of appeals in SC. "Every day each bench of SC deals with at least ten such petitions. This is the concern of the court," he said. "Why we are concerned -if a prosecutor and investigator rests so much on interlocutory relief, the ultimate effort for securing conviction is lessened... by seeking cancellation of bail you (state) can ensure that an undertrial prisoner continues to be incarcerated while absolving yourself of the higher responsibility of ensuring fair and just trial to secure conviction, which the victims of crime desire," the bench said. "In most cases there is no honourable acquittal. The accused is not convicted because the investigator slips and the prosecution fails to present evidence properly. This is where the state must fasten accountability and not seek cancellation of bail. We are making these observations out of serious concern," it further said.

Justice Bagchi said, "The HCs are passing 50-page bail orders in UAPA cases, 40-page orders in PMLA cases. Why? Do the judges understand the consequences of such lengthy bail orders?" When Kapil Sibal attempted to argue in favour of upholding Baghel's bail, the bench said, "Please do not bring up the facts of your case. There are some very serious reservations about your case." The bench said even in MISA (Maintenance of Internal Security Act enforced during the Emergency) detentions, HCs used to release detenues by passing one-page orders - "we are not satisfied with grounds of arrest, as communicated, and hence detention order is set aside".

Justice Bagchi said CJI Kant-authored judgment in K A Najeeb case in 2021 had laid down guidelines for grant of bail and cleared doubts in minds of HC judges who were finding it difficult to strike a balance between liberty and continued detention. In Najeeb judgment, SC had said courts can grant bail to the accused on the ground of long incarceration even in UAPA cases. Solicitor general Tushar Mehta had argued Baghel's case was no ordinary one. "This case involves a peculiarity. A large number of WhatsApp texts... were exchanged between two constitutional authorities - the judge and then Chhattisgarh advocate general."