On March 21, the Supreme Court expressed disbelief over some of the trial courts failing to adhere to the Supreme Court's July 2022 order, in which the trial courts had been directed to adopt a liberal view and grant bail to accused in cases where custody was not essential. The Supreme Court declared that the courts should not issue detention orders in a routine and mechanical manner, denying the accused's liberty, and that such judges need to be sent to academies to "upgrade their knowledge."

The Supreme Court also warned that prosecuting agencies, including the CBI, magistrates and public prosecutors, would be "hauled up" if they continued to take a stand in trial courts contrary to the apex court verdict while opposing bail petitions. It further asked the Centre and states to brief prosecutors on the matter.

The Supreme Court was frustrated to learn that, even after 10 months, the District Judiciary has still failed to comply with the directions issued in Satender Kumar Antil vs Central Bureau of Investigation (SLP(Crl)No. 5191/2021), in which it had laid out elaborate guidelines regarding arrest and bail. It observed that non-compliance would have two consequences: a) sending people to custody when they were not required to be sent, and b) causing additional litigation, both of which the Court thought should not be tolerated.

It was the Amicus Curiae, Mr. Siddharth Luthra, who produced samples of orders demonstrating non-compliance by the lower rungs of the judiciary. The Supreme Court Bench comprising of Justice SK Kaul, Justice Ahsanuddin Amanullah, and Justice Aravind Kumar then made the aforementioned observation. Senior advocates Sidharth Luthra and Maninder Singh had brought to the court's attention numerous orders issued by trial courts in Lucknow, Hathras, and Ghaziabad that were in direct violation of the Supreme Court's directive. In these cases, apart from the Judiciary it was the prosecuting agencies who first took positions before lower courts that were contrary to the Supreme Court's verdict.

Following a look at these orders, the court observed that the trial judges issued orders contrary to the July 2022 decision of the Supreme Court even after this was brought to their attention. It is then that Supreme Court bench observed that such judges needed more training at the judicial academy, and entrusted the task to High Courts to take action against them.

The High Court, which has oversight over the District judiciary, was also advised to ensure that the Supreme Court's ruling is followed in true letter and spirit. “It is not that SC judgment (for not sending people to custody where it is not required) was not brought to court's notice as the order noted the verdict. It is something which cannot be countenanced. In our view it is the duty of the High Courts that it ensures that the subordinate judiciary under their supervision follows the law of the land. If such orders are issued by some Magistrates, some judicial work may be withdrawn, and the magistrate may be sent to judicial academies to improve their skills," reported LiveLaw.

"The District judiciary is under the supervision of the High Court," Justice SK Kaul stated, and held it to be the High Court's responsibility to guide and educate them.

The Bench was also apprised that submissions made by the Public Prosecutors are at times contrary to the law laid down in Antil. Accordingly, the Bench noted that it is also the duty of the Public Prosecutors to argue the correct legal position before the Courts.

Justice Amanullah reckoned, “Are we not required to take strict notice of the Agencies who make these submissions against law. Why leave it only to the court? The moment you make such submissions we must haul you up also,” as was reported by the Times of India.

 Additional Solicitor General, Mr. SV Raju responded saying that it is the bounden duty of the Public Prosecutors to bring to the notice of the Court the correct position of law. He assured the Bench that he would ask the CBI to issue directions to the Public Prosecutors in this respect.

Directions issued by the Supreme Court bench

During the hearing, the Bench noted that the number of such undertrial prisoners in Allahabad, Odisha, Assam, and Tamil Nadu was disproportionately high. Counsel for the Gauhati and Orissa High Courts assured the Bench that special measures would be taken to address the situation. Because no one from the Madras High Court appeared, the Bench directed that the Registrar be present on the next date of hearing. Concerning Allahabad, Justice Kaul recalled that he had previously proposed a solution in another suo moto case. Justice Kaul has previously opined that all persons who have completed 10 years of sentence, and whose appeals will not be heard in the near future, should be enlarged on bail, unless there are other reasons to deny them bail.

The Counsel appearing for the High Courts of Meghalaya and Uttarakhand informed the Bench that compliance reports had been filed with the court but that a copy had not been provided to the Amicus. None of the other two courts were represented.

Given this, the Bench directed that the Registrars of the four Courts appear in person on the next date of hearing. “We can see no reason why the orders of this Court cannot be complied with by serving a copy so that proper assistance is made available to us. Even the Counsels don’t care to attend. So far as Delhi and Telangana are concerned Counsels are present, but compliance reports not filed. We …but to direct the personal presence of the Registrar of the four Courts before us,” the court stated as reported by LiveLaw.

Previous orders issued by the SC on bail

Today, the three-Judge Bench headed by Justice Kaul was ascertaining the compliance of the directions issued in Antil by the States. In July last year, the Supreme Court stated that there is no place in a democracy for a police state in which investigating agencies can arrest people unnecessarily and mechanically, and it issued a slew of directives prohibiting agencies from arresting people in cognisable offences punishable by up to seven years in prison where custody is not required, and it also asked criminal courts to protect people's liberty and be liberal in granting bail. It ruled that an accused who was not arrested during the investigation and cooperated with it should not be detained upon the filing of the charge sheet. The bench, comprising of Justices SK Kaul and MM Sunderesh, had also expressed concerns at the large number of undertrials languishing in jails, and emphasised that the accused should not be remanded in a mechanical manner. The judgment also suggested that the Union Government should bring a 'Bail Act' to streamline the process for granting bail. On the last occasion, the High Courts were also directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions.

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