It is most significant in matters pertaining to bail orders that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Ayub Khan vs The State of Rajasthan in Criminal Appeal arising out of Special Leave Petition (Crl.) No.10587 of 2023 and cited in Neutral Citation No. 2024 INSC 994 that was pronounced as recently as on December 17, 2024 has minced just no words to hold in no uncertain terms that Constitutional Courts (High Courts and Supreme Court) do not have the authority to direct Trial Courts to adopt a specific format or manner for writing orders in bail cases. To put it differently, the Apex Court has made it explicitly clear in this most commendable judgment that High Courts and Supreme Court lack the authority to mandate specific formats for Trial Court orders particularly in matters of bail. This has to be followed in letter and spirit as laid down by the top court in this leading case unless it is overruled by a larger Bench of the Apex Court!
We thus see that in this leading case, the Apex Court expunged the adverse remarks and directions by Rajasthan High Court against Mr Ayub Khan who is a District and Sessions Judge in Rajasthan while addressing broader legal issues pertaining to judicial discretion and supervisory powers. The Bench of Apex Court comprising of Hon'ble Justices Abhay S Oka and Augustine George Masih reaffirmed that Constitutional Courts cannot encroach upon the discretionary powers of Trial Courts by prescribing a specific format for writing orders in bail cases.
It merits mentioning that this leading case germinated from a bail application that had been filed by the accused in an attempt to murder case. The District and Sessions Judge had rejected the bail plea and this rejection order was later challenged before the Rajasthan High Court. The Rajasthan High Court not only granted bail to the accused but also made adverse observations against the Sessions Judge.
It took potshots at the Sessions Judge for not complying with the specific directions of the Rajasthan High Court in Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 pertaining to the documentation of the accused's criminal antecedents in a prescribed tabular format in his order rejecting bail. The Apex Court in this robust judgment held that the Rajasthan High Court's observations against the Judicial Officer were completely uncalled for, the entire exercises done by the High Court right from issuing directions in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 and passing of impugned orders was not only unwarranted but illegal. The top court also opined that the directions issued by the Rajasthan High Court to Trial Courts in Jugal Kishore case cannot be construed as mandatory directions and at best, they can be taken as mere suggestions. It also made it pretty clear that the explanation of a judicial officer can be called for only on the administrative side.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon'ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and Hon'ble Mr Justice Augustine George Masih sets the ball in motion by first and foremost putting forth in para 1 that:
Leave granted.
To put things in perspective, the Bench while elaborating on the factual aspects envisages in para 2 that:
The appellant is a District and Sessions Judge of Rajasthan Judicial Service. The appellant joined the judicial service in the year 1993. The appellant has filed the present appeal for limited purposes of striking down observations made in the impugned order against him and for quashing the adverse directions issued against him. The appellant decided a bail application filed by an accused who was charged with offences punishable under Section 307 read with Section 34 of the Indian Penal Code (for short, 'IPC') and Sections 3, 3/25 and 5/25 of the Arms Act, 1959. The appellant rejected the bail application.
Therefore, the accused filed a bail application before the High Court. The impugned order has been passed on the bail application. By the impugned order, bail has been granted to the accused. While granting bail, adverse observations have been made by the High Court against the appellant. Certain directions have been issued which affect the appellant.
Do note, the Apex Court notes in para 8 that:
We have already quoted the directions issued by the High Court in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386. The gist of the directions issued is summarised as follows:
- The Trial Courts shall, while allowing or disallowing any regular or anticipatory bail application, incorporate complete details of the antecedents of the accused, if any, in the order;
- The Trial Court shall record that there are no antecedents in case none are there; and
- If antecedents exist, the same shall be incorporated in the tabular form containing details mentioned in the judgment.
Be it noted, the Bench notes in para 9 that:
The principles to be followed while deciding on a bail application are well settled. If Trial Courts commit errors while deciding bail applications, the same can always be corrected on the judicial side by the Courts, which are higher in the judicial hierarchy. The Constitutional Courts can lay down the principles governing the grant of bail or anticipatory bail. However, the Constitutional Courts cannot interfere with the discretion of our Trial Courts by laying down the form in which an order should be passed while deciding bail applications. What the High Court has done in paragraph 9 in the decision in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 is that it has made it mandatory for the Trial Courts to incorporate a chart containing details of the antecedents of the accused who applies for bail.
Most rationally, the Bench enjoins in para 10 propounding that:
The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents. In such cases, the question of incorporating details of antecedents in a tabular form does not arise. If the directions in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 are to be strictly implemented, the Court may have to adjourn the hearing of the bail applications to enable the prosecutor to submit the details in the prescribed tabular format.
It is worth noting that the Bench notes in para 11 that:
When the prosecution places on record material showing antecedents of the accused, and if the Court concludes that looking at the facts of the case and the nature of antecedents, the accused should be denied bail on the ground of antecedents, it is not necessary for the Court to incorporate all the details of the antecedents as required by paragraph 9 of the decision in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386. The Court may only refer to the nature of the offences registered against the accused by referring to penal provisions under which the accused has been charged.
Most significantly and most sagaciously, the Apex Court mandates in para 12 what constitutes the cornerstone of this notable judgment postulating that:
In a given case, if necessary, the court can incorporate a chart as directed in paragraph 9 while deciding a bail application. However, if a High Court directs that in every bail order, a chart should be incorporated in a particular format, it will amount to interference with the discretion conferred on the Trial Courts. Therefore, in our view, what is observed in paragraph 9 of the decision in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 cannot be construed as mandatory directions to our Criminal Courts. At the highest, it can be taken as a suggestion which need not be implemented in every case. No Constitutional Court can direct the Trial Courts to write orders on bail applications in a particular manner. One Judge of a Constitutional Court may be of the view that Trial courts should use a particular format. The other Judge may be of the view that another format is better.
Most forthrightly, the Apex Court observes in para 13 enunciating that:
The matter does not rest here. In the order dated 4th April 2023 passed in the same bail petition in which the impugned order has been passed, it was observed that the directions issued in paragraph 9 have been disregarded by the appellant. The High Court went to the extent of observing that the act of disregarding direction contained in paragraph 9 of the decision in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 is not only indiscipline but is a serious matter which may amount to contempt. Therefore, an explanation of the appellant was called for. We fail to understand how the appellant committed acts of indiscipline or contempt by not following the suggestion incorporated in paragraph 9. Secondly, even assuming that the appellant was guilty of indiscipline, on the judicial side, the High Court ought not to have passed an order calling for an explanation from a judicial officer.
The direction of calling for an explanation from a judicial officer by a judicial order was inappropriate. Explanation of a judicial officer can be called for only on the administrative side. The High Court carried the matter further. By order dated 25th April 2023, the High Court directed the appellant to send a list of the total number of bail applications he disposed of in February 2023, along with copies of the orders passed by him. He was also directed to submit a report on whether directions contained in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 were followed by him. The appellant was forced to give a reply and was left with no choice but to tender an apology by submitting the reply. With the utmost respect to the High Court, undertaking such an exercise was a waste of precious judicial time of the High Court which has a huge pendency.
More to the point, the Bench holds in para 14 that:
What the High Court has done while deciding a bail petition in a case where bail was denied by the appellant as a Session Judge was completely uncalled for. The entire exercises done by the High Court right from issuing directions in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386 and passing orders dated 4th April 2023, 25th April 2023 and the impugned order by which the High Court found fault with the appellant was not only unwarranted but illegal.
Further, the Bench specifies in para 15 stating that:
As noted earlier, in the judgment and order dated 18th June 2021 in S.B. Criminal Misc. Interim Bail Application No.6821/2021, in paragraphs 13 to 16 and in particular paragraph 15, similar directions were issued which are issued in the case of Jugal Kishore vs State of Rajasthan (2020) 4 RLW 3386, and by order dated 20th February 2023, the said directions have been set aside by this Court in Special Leave Petition (Crl.) Nos.11675-11676 of 2022 (Rajasthan High Court v. State of Rajasthan and Anr.).
Most remarkably, the Bench very precisely states in para 16 holding that, Therefore, to conclude, we hold that the directions issued in paragraphs 9 and 10 of the decision of the Rajasthan High Court in the case of Jugal Kishore1 cannot be said to be binding directions. At the highest, the same shall be treated as suggestions made by the High Court. Non compliance with what is observed in paragraphs 9 and 10 of the said decision by a judicial officer cannot be treated as an act of indiscipline or contempt.
While citing a recent and relevant case law, the Bench expounds in para 17 mentioning that:
Injustice has been done to the appellant by passing the orders which we have referred to above. Before we part with this judgment, we may refer to a decision of this Court in the case of Sonu Agnihotri vs. Chandra Shekhar and Others 2024 SCC OnLine SC 3382. In paragraphs nos. 15 and 16, this Court held thus:
15. The Courts higher in the judicial hierarchy are invested with appellate or revisional jurisdiction to correct the errors committed by the courts that are judicially subordinate to it. The High Court has jurisdiction under Article 227 of the Constitution of India and Section 482 of the CrPC to correct the errors committed by the courts which are judicially subordinate to it. We must hasten to add that no court can be called a subordinate court. Here, we refer to subordinate courts only in the context of appellate, revisional or supervisory jurisdiction. The superior courts exercising such powers can set aside erroneous orders and expunge uncalled and unwarranted observations. While doing so, the superior courts can legitimately criticise the orders passed by the Trial Courts or the Appellate Courts by giving reasons.
There can be criticism of the errors committed, in some cases, by using strong language. However, such observations must always be in the context of errors in the impugned orders. While doing so, the courts have to show restraint, and adverse comments on the personal conduct and calibre of the Judicial Officer should be avoided. There is a difference between criticising erroneous orders and criticising a Judicial Officer. The first part is permissible. The second category of criticism should best be avoided. The reasons are already explained by this Court in Re:'K', A Judicial Officer.
There are five reasons given in paragraph 15 of the decision why judicial officers should not be condemned unheard. As observed in the decision, the High Court Judges, after noticing improper conduct on the part of the Judicial Officer, can always invite the attention of the Chief Justice on the administrative side to such conduct. Whenever action is proposed against a judicial officer on the administrative side, he gets the full opportunity to clarify and explain his position. But if such personal adverse observations are made in a judgment, the Judicial Officer's career gets adversely affected.
16. The Judges are human beings. All human beings are prone to committing mistakes. To err is human. Almost all courts in our country are overburdened. In the year 2002, in the case of All India Judges' Association (3) v. Union of India, this Court passed an order directing that within five years, an endeavour should be made to increase the judge-to-population ratio in our trial judiciary to 50 per million. However, till the year 2024, we have not even reached the ratio of 25 per million.
Meanwhile, the population and litigation have substantially increased. The Judges have to work under stress. As stated earlier, every Judge, irrespective of his post and status, is likely to commit errors. In a given case, after writing several sound judgments, a judge may commit an error in one judgment due to the pressure of work or otherwise. As stated earlier, the higher court can always correct the error. However, while doing so, if strictures are passed personally against a Judicial Officer, it causes prejudice to the Judicial Officer, apart from the embarrassment involved. We must remember that when we sit in constitutional courts, even we are prone to making mistakes. Therefore, personal criticism of Judges or recording findings on the conduct of Judges in judgments must be avoided. (emphasis supplied).
Frankly speaking, the Bench held clearly in para 18 that:
The High Court ought to have shown restraint. The High Court cannot damage the career of a judicial officer by passing such orders. The reason is that he cannot defend himself when such orders are passed on the judicial side.
Finally, the Bench then concludes by holding in para 19 that:
Hence, we pass the following order:
- All adverse remarks/observations in the impugned order dated 5th May 2023 made against the appellant, stand expunged. The findings contained in paragraph 11 of the impugned order holding that the appellant has indulged in disobedience of judicial instructions and indiscipline are set aside and the direction to place the case before the Chief Justice is also set aside;
- The observations made against the appellant in orders dated 4th April 2023, 25th April 2023 and directions issued thereunder to the appellant are set aside. We clarify that in view of what we have held earlier, the adverse remarks and observations made against the appellant in the aforesaid orders cannot be the basis for taking any action against the appellant on the administrative side;
- A copy of this judgment shall be forwarded to the Registrar General of the High Court of Rajasthan who shall place the same before the Hon'ble Chief Justice of the said Court on administrative side.
- Appeal is allowed on the above terms.
In summary, it is high time and all the High Courts in India and so also the Supreme Court must always pay heed to what the Apex Court has held so explicitly, elegantly, eloquently and effectively in this leading case that the Supreme Court and High Courts which are Constitutional Courts can lay down the principles governing the grant of bail or anticipatory bail but the Constitutional Courts cannot interfere with the discretion of Trial Courts by laying down the form in which an order should be passed while deciding bail applications. It is also most heartening to note that the top court very rightly expunged the adverse remarks and directions by Rajasthan High Court against Mr Ayub Khan who is a District and Sessions Judge. No denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
