Annexing Case Diary Extracts With Bail Plea Now A Norm, Bail Can't Be Opposed Or Denied On This Ground: Allahabad High Court

“It is a basic principle of natural justice that no person should be condemned without giving him an adequate opportunity of hearing, which would include providing copies of the material against him”, a bench of Justice Subhash Vidyarthi observed while allowing bail to a murder-accused on the grounds of parity.

In this case, the applicant has been accused of killing the deceased and thereafter, trying to give it a semblance of an accident. Interestingly, the applicant and the accused persons are descendants of the same ancestor, and they are fighting for the same piece of land left by the applicant's grandfather.

During the hearing, the informant raised a preliminary objection to the maintainability of the bail application, contending that the accused had access to the case diary and had even annexed copies of certain extracts with the bail plea, which indicated that he could influence the course of the investigation.

Rejecting this submission, the bench noted that Section 230 BNSS (Supply to accused of copy of police report and other documents) itself provides a mandate to the Magistrate that upon appearance of the accused, he shall furnish to the accused copies of the police report, copies of the statements recorded under Section 180(3), the confessions and statements recorded under Section 183 and any other document forwarded to the Magistrate with the police report to the accused.

The Court observed that although Section 230 of the BNSS appears to be in conflict with Section 192 regarding the supply of prosecution papers to the accused, the provision more beneficial to the accused (namely, Section 230) would be given precedence, especially as it aligns with the principles of natural justice.

Against this backdrop, cautioning against denying bail solely because the accused accessed investigation material, the Court observed thus:

“In case an Investigating Officer provides copies of the material collected during investigation, to which the accused is entitled under Section 230 BNSS, for being presented before the Court so as to enable the Court to decide the bail plea after taking into consideration all the relevant facts and circumstances of the case, it should not result in non-consideration of the bail application on its merits.”

Moreover, the bench added, a person who is in custody, cannot be blamed for extracts of case diary procured by some person for his benefit, as he is not directly involved in this process and, therefore, he cannot be made to suffer by rejection of his bail application on this preliminary objection.

The single also emphasised that annexing copies of extracts of the case diary has become a norm, and not annexing the same is an exception.

“When the photocopies are being freely provided to the persons doing Pairvi of criminal cases, copies of extracts of case diary having been annexed with the bail application would not make out a ground for rejection of the bail application in limine without its merits being examined by the Court,” the bench added.

Against this backdrop and discarding the preliminary objection to maintainability of a grant of bail, the bench factored in the following considerations, while granting bail to the accused:

• The F.I.R. was lodged 37 hours after the incident,
• There is an old animosity between the parties,
• The registration number of the Car (connected with the accused-applicant) which had hit the motorcycle (connected to the deceased) has not been identified even after examination of footages of numerous CCTV cameras
• The applicant's call detail records and his photo taken in the photo affidavit centre of HC indicated that at the time of the incident he was at a distance of about 175 Kilometers from the place of the incident.
• Co-accused person has already been granted bail

In its postscript to the 17-page order, the High Court also urged the members of the bar to be precise and concise in preparing pleadings and making submissions before the Court.

“I once again request the learned members of the bar and remind them that besides being a representative of their client, they are also responsible officers of the Court. They should be considerate towards the other litigants also and should cooperate in expeditious dispensation of justice by being precise and concise while preparing pleadings as well as while making submissions before the Court,” a bench of Justice Subhash Vidyarthi observed.

The Single Judge was constrained to make these observations upon noting that the bail plea could have been decided by a brief order, but for the elaborate submissions made by the Counsel for the informant on various aspects of the matter.

While the Court acknowledged that a lawyer is duty-bound to advance submissions in the interest of his/her client, it added that, in the context of a bail application, the Court is not expected to conduct a mini-trial.

The Court further observed that when a Counsel insists on making detailed submissions, all such arguments must be recorded and addressed so as to avoid giving rise to a genuine reason for grievance.