A Division Bench of the Allahabad High Court has raised questions on the manner in which a single judge bench granted bail to the two accused in the National Rural Health Mission (NRHM) scam — former BSP MLA Ram Prasad Jaiswal and Dinesh Kumar Singh — on December 5. It has referred the matter to the Bench headed by Chief Justice D Y Chandrachud for further hearing.
While Jaiswal is accused of favouring unqualified firms to supply medical items under the NRHM scheme, Singh is accused of raising false bills in the name of supplying materials.
The December 5 order had come in dispute after the two accused filed correction applications and obtained favourable orders on December 11 without informing the CBI counsel, allegedly to get bail from the court of special CBI Judge, Ghaziabad.
The correction applications pertained to a particular section of the Prevention of Corruption Act, 1988, which was not mentioned in the original bail order. However, CBI had approached the Chief Justice on filing recall applications against the order passed on the correction applications.
The Chief Justice Bench, while referring the issue of recall of applications to a Division Bench, comprising Justices Amar Saran and Amreshwar Pratap Sahi, had stayed the operationalisation of the December 5 order. The Division Bench has allowed the recall applications filed by the CBI and also said that the stay on operationalisation of the December 5 order would continue till the matter is finally disposed off.
However, passing the order on Thursday, the Bench said: “More alarmingly, the issue relating to jurisdiction of the learned single judge to hear all the three bail applications when only one was nominated, gains significance. A court not having been assigned the roster, the presiding judge cannot assume jurisdiction without nomination. There cannot be a presumption of an implicit or implied nomination.”
The accused, Jaiswal, had filed two separate bail applications- No. 4314/ 2013 and 4310/ 2013, both relating to different FIRs registered under the NRHM scam by CBI against him while Singh had filed a bail application No. 8237/2013. All three bail applications were clubbed for hearing.
However, the court pointed out that the Chief Justice had only nominated bail application No. 4314 to the court of Justice Jayashree Tiwari, who retired on December 12. As it is, as per roster, the said Bench did not have the jurisdiction to hear bail matters, the court said.
There were no separate nomination orders for the other two bail applications, the court said. It added that judges have to be careful in dealing with the applications, as casual approach may create doubt over whether justice was done in the matter.
Further, on the issue of the single judge bench allowing the correction applications, the bench said: “A correction can only be allowed when there is an inadvertent typographical or arithmetical error which is not willful and is unintentional. It is a fault that creeps in ignorance. However, an error of judgment or a conscious omission in spite of the facts correctly disclosed, cannot be continued…
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