JNU row: Kanhaiya Kumar’s bail plea sets ‘dangerous precedent’, move HC first, says SC

But with the defence seeking more time to place additional documents in their petition seeking bail, the matter was not heard immediately. High Court sources said the plea was “unlikely to come up for hearing on Saturday”.

Kumar had approached the apex court after being assaulted by groups of lawyers at the Patiala House Courts complex on Wednesday. On Friday, security was beefed up inside and outside the high court premises minutes before Kumar’s lawyers, escorted by police, arrived to mention their plea.

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The apex court had earlier directed the defence lawyers to move the High Court after refusing to hear Kumar’s bail plea on the ground that it would set a “dangerous precedent”.

“You are leading a dangerous proposition. If this court will entertain it (bail plea bypassing courts below it), it will become a precedent which will be available to all the accused in the country. Wherever there will be sensitive cases involving political persons or prominent persons or others… you know the atmosphere in the court,” said a bench comprising justices J Chelameswar and A M Sapre.

“So in every case if it is said that Supreme Court is the only court (to hear the matter), it would be a dangerous precedent,” the bench said.

Further, it observed, “Remember, this is not the only case of this type.”
Solicitor General Ranjit Kumar strongly opposed the hearing of the plea by the apex court, saying a wrong message
would go that the High Court is incapable looking into the matter.

The apex court bench was not in agreement with the arguments advanced on Kumar’s behalf by a battery of senior advocates, including Soli Sorabjee, Raju Ramachandran and Rajeev Dhawan, that a threat to the life of the accused and his counsel, hostile environment at the lower court and the simmering situation compelled them to rush directly to it.

They also submitted that they moved the highest court for bail as already a writ petition concerning the arrest of the JNUSU President was pending before it.

However, their submission was objected to by the lawyers for Centre and Delhi Police, the SG Kumar, ASG Tushar Mehta and senior advocate Ajit K Sinha, who said the facts in the writ petition and the bail plea are different. They opposed it being heard directly by the Supreme Court.

When the argument was made by Kanhaiya’s counsel about the law and security situation, the bench said, “We do agree with you that it is an exceptionally extraordinary circumstance,” the bench said.

The counsel said that they preferred the apex court to hear his bail plea as the situation in the High Court also would not be much different.

The bench then asked, “Is it so in the high court? Are we to understand that the lawyers in HC are also agitated?”
While concluding the 90-minute hearing, the bench said, “We permit them to make and amend the bail application today itself.”

While transferring the bail plea, the bench took an assurance from SG Kumar that in the “prevailing extraordinary situation” pertaining to this matter, the Government of India and the Delhi Police Commissioner would provide adequate safety and security to the accused and a team of lawyers, who will be appearing in the High Court.
The bench also said that the counsel for all the parties would be given preference while entering into the court room at the High Court and the Registrar General would be responsible for limiting number of people to be allowed to enter inside.

At the outset when Kanhaiya’s bail plea was taken up, the bench asked his counsel, “Did you move bail petition
before the trial court?”

When the reply was in the negative, the bench asked the counsel, “Why are you rushing here?” Ramachandran responded saying the incident of February 17 “does not require recounting”.

“For me to go to any sessions court in Delhi is impractical, unsafe, dangerous to me as accused, dangerous to me as a lawyer who performs professional duty in a calm and peaceful environment,” he said.

Noting his submission, the bench wanted to know from him that why he did not then approach the Delhi High Court.
The senior advocate said that it was his statutory right to apply for bail and against the experience of the past few days there was a feeling that there was denial of access to justice to his client.

He said he approached this court for the bail as it was already seized of the matter concerning access to justice for Kanhaiya Kumar and he was seeking the court’s indulgence.

However, the bench interrupted him and said, it was fully aware of the situation prevailing in the Patiala House Court complex and will examine the reports placed before it by the apex court-appointed commissioners, Registrar General of the Delhi HC and the Delhi Police.

“There was some commotion in the Patiala House Court. We know there is a difficult situation there. However, what is the difficulty and what prevents you from going to High Court?” the bench asked.
Ramachandran said the high court is in the “same city and the same hexagon” so they are moving the Supreme Court which has better security arrangements.

“I am here because this court deals with totality of the matter,” he said.

At this point, the bench came out with the stern observation that taking his bail plea directly would lead to “a dangerous proposition” and set a “dangerous precedent”.