Updated: May 26, 2021 11:23:07 am
The Supreme Court Tuesday stayed a Rajasthan High Court order suspending arrests in cases where punishment is up to three years and which can be tried by a First Class magistrate, after the HC itself filed an appeal against it in a rare move.
A vacation Bench of Supreme Court Justices Vineet Saran and B R Gavai stayed the order by the single-Bench of Justice Prakash Bhandari, on a special leave petition filed by the HC.
The top court’s order also stayed Justice Bhandari’s direction to the Registrar (Judicial), Jaipur Bench, and Registrar (Judicial), Principal Seat, Jodhpur, to not list bail applications under Section 438 of the CrPC in offences where maximum sentence extends up to three years and the offence can be tried by a First Class Magistrate, till reopening of courts after the summer vacation. Justice Bhandari had cited Covid-19 conditions for his order.
Senior advocate Vijay Hansaria, appearing for the Rajasthan High Court, said, “Last year, the same High Court judge had passed an order saying that no bail application should be listed (during the 21-day national lockdown).” This order was also stayed by the SC in April 2020.
“Last week, the same judge passed (a similar) order in another case he was handling… All the epidemic laws, Covid protocol (laws), are punishable by two years. Now people are saying you cannot arrest us due to the High Court order. They are not afraid of not following the Covid protocol. So that’s a major issue,” Hansaria told The Indian Express.
He said that, besides, it was “settled law” that judges cannot decide which cases to list, and which not. “It is up to the Chief Justice’s discretion… And if bail applications aren’t being listed in vacation, then what will be listed in vacation?” Hansaria said.
Senior Advocate Manish Singhvi appeared for the Rajasthan government and supported the High Court’s stand on the matter.
On May 17, hearing a bail plea, Justice Bhandari had said that arrests in cases where punishment is up to three years and which can be tried by a First Class magistrate are “counter-productive” in Covid times. “If a person who is arrested and produced before the Magistrate and, thereafter, sent to jail is an asymptomatic carrier of Covid-19, the inmates may be put at risk.”
Justice Bhandari added that “in view of larger public interest, this Court is of the view that the police may be restrained for the time being from making arrest of the accused persons” and that listing of bail applications under Section 438 of the CrPC (direction for grant of bail to person apprehending arrest) will also be “avoided” before the Sessions Court as well as High Court till July 17.
On May 21, he said that due to a typographical error, the maximum sentence for the offences covered by his order had appeared as “may extend to three years”, instead of “may extend to five years”.
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