It is a matter of immense satisfaction to note that none other than the Supreme Court which is the highest court of our country has in an extremely commendable, courageous, cogent, convincing and composed judgment titled “In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials” in Miscellaneous Application No. 505/2022 in SMW(Crl) No. 1/2017 (Arising out of impugned final judgment and order dated 20-04-2021 in SMW(Crl) No. 1/2017 passed by the Supreme Court Of India) with MA 1836/2021 in SMW(Crl) No. 1/2017 (PIL-W) (IA No. 143809/2021 - Appropriate Orders/Directions) and cited in 2022 LiveLaw (SC) 433 and delivered as recently as on April 28, 2022 has clarified that Rule 17 of the 2021 Draft Criminal Rules on Practice which the High Courts have been directed to adopt should be read as a mandate for furnishing of the bail order to the prison concerned, and the concerned prison in turn should furnish the same to the accused on the same day of pronouncement. This must be definitely implemented by all the High Courts in respective States all across India in totality without any exception. This shall benefit the accused immensely and shall ensure that he does not just keep rotting in jail even after getting bail from court.
It may be recalled that the Bench of Apex Court comprising of Justice L Nageswara Rao, Justice S Ravindra Bhat and Justice BR Gavai had noted that, “Senior advocate Siddharth Luthra, amicus curiae, sought a clarification relating to para 17 of the criminal practice rules which has been reproduced as rule 17, chapter 5 (Miscellaneous).” The Bench had observed in its order that, “We accept the submission made by the amicus curiae and we are of the considered opinion that paragraph 17 of the draft rules should be read as a mandate for furnishing of the bail order to the prison concerned. We are also of the opinion that the bail orders shall be furnished by the concerned prison to the accused.” The Bench recorded that many High Courts and State Governments are yet to incorporate the draft Criminal Practice Rules approved by the Supreme Court.
It may also be recalled that Mr Siddharth Luthra who is the amicus curiae in this case had told the Bench most forthrightly that, “When bail orders are passed, it becomes a peculiar situation because the orders don’t reach the jail, the jail authorities don’t know if the person is granted bail or not. The intimation only goes when the bail order goes to the court and then the court looks at the personal bond and based on that the person is released…The man is in custody when the lawyer is arguing in court. Also, it may be an amicus or the legal aid lawyer arguing. Families often do not reach the court. This frustrates the rights of a lot of people. I understand the problem in incorporating it as a rule but it may also come as a direction in the final order. It may come as a part of your lordships’ order because once the order is passed, it only needs a communication from the court concerned to the jail authorities.”
To start with, this brief, brilliant, bold and balanced judgment authored by a three Judge Division Bench of the Apex Court comprising of Hon’ble Mr Justice L Nageswara Rao, Hon’ble Mr Justice BR Gavai and Hon’ble Mr Justice S Ravindra Bhat sets the ball rolling by first and foremost putting forth in the opening para that, “By an order dated 20.04.2021, this Court directed the High Courts and state governments to take the following steps:“(a) All High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months from today. If the state government’s co-operation is necessary in this regard, the approval of the concerned department or departments, and the formal notification of the said Draft Rules, shall be made within the said period of six months.
(b) The state governments, as well as the Union of India (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into force, and all agencies instructed accordingly, within six months from today.””
It is worth noting that the Division Bench of the Apex Court then unequivocally specifies in the next para of this learned judgment that, “A note has been submitted by the learned Amicus Curiae showing the status of compliance of the directions issued on 20.04.2021. A few High Courts have not taken steps to incorporate the Draft Rules as part of the rules governing criminal trials. It is relevant to note that six months’ time was granted to the High Courts to implement the directions given on 20.04.2021. Such of those High Courts which have not complied with the directions, are granted four weeks’ time to comply with the order passed by this Court on 20.04.2021 and file a status report.”
Without mincing any words whatsoever, the Bench then points out in the next para of this laudable judgment that, “Most of the State Governments/Union Territories have not carried out the consequential amendments to the Police and other manuals. Some State Governments could not carry out the amendments on account of not having received the rules formulated by the High Courts, as directed by this Court. All the State Governments/Union Territories are directed to comply with the directions issued by this Court on 20.04.2021 within a period of 8 weeks from today and report compliance. The status reports by the High Courts and the compliance reports by the State Governments shall be served on Mr. K. Parameshwar a week before the date of next hearing.”
As we see, the Bench then discloses in the next para of this notable judgment that, “The learned Amicus Curiae sought a clarification relating to para 17(i) of the Draft Rules of Criminal Practice, which is as under:“17 BAIL:
i) The application for bail in non-bailable cases must ordinarily be disposed off within a period of 3 to 7 days from the date of first hearing. If the application is not disposed off within such period, the Presiding Officer shall furnish reasons thereof in the order itself. Copy of the order and the reply to the bail application or status report (by the police or prosecution) if any, shall be furnished to the accused and to the accused on the date of pronouncement of the order itself.””
Most notably, the Bench then without mincing any words unequivocally holds in the next para of this remarkable judgment that, “We accept the submission made by the learned Amicus Curiae that para 17 (i) of the Draft Rules should be read as mandating the furnishing of the bail order to the prison concerned. We are also of the opinion that the bail order should be furnished by the prison authorities to the accused.”
Finally, the Bench then concludes by holding in the final para of this noteworthy judgment that, “List this matter on 21.07.2022 at 2.00 p.m.”
In conclusion, the key essence of this extremely commendable and learned judgment by a three Judge Bench of the Apex Court is that the bail order should be furnished to the accused in prison on the same day of pronouncement. It thus merits no reiteration that there should be just no delay of any kind in furnishing the bail order to the accused. This will enable the accused to promptly step out of the jail and this will be in consonance with the old famous adage followed in our courts also that, “Bail is the rule and jail is the exception.” It also goes without saying that all those High Courts and State Governments who are yet to incorporate the draft Criminal Practice Rules approved by the Supreme Court in 2021 must do the same promptly so that the accused who get bail are able to step out promptly and they don’t just keep rotting in jail for a long time! Sanjeev Sirohi