Court's Discretion Of Deciding On Bail Plea Cannot Be Taken Away By Any Act: Bombay High Court

A single judge bench of the Bombay High Court comprising Justice SM Modak has recently observed that the discretion of the court while deciding bail applications cannot be taken away by any Act.

The high court observed this while deciding on a scheme framed by the National Legal Service Authority for the release of undertrial prisoners.

The high court was hearing a bail plea filed by a 71-year-old accused on the basis of a scheme called ‘Release_UTRC@75’ framed by the National Legal Services Authority. The applicant had relied on a category that provides for the release of undertrial above 65 years of age.

The categories are divided into two divisions, one is the persons who are convicted and who are languishing in jail, and the second is those who are waiting for their turn for the trial. Amongst the undertrial prisoners, there are various categories depending upon the nature of the offense, type of punishment, medical health, gender, age group.

The advocate for the applicant argued that the applicant was above 65 years of age and that he fitted in that category. He submitted that the bail application was rejected by the Sessions Court and now, this application was filed in view of the decision of the High Court Legal Services Committee. He argued that while deciding such a request, if the merits of the matter are considered, then it will defeat the purpose of that scheme.

The Additional Public Prosecutor submitted that the merits of the matter needed to be considered and if they were not considered, then many undertrial prisoners will be released on bail irrespective of merits of the matter.

The court said that the District and Session Judge is given certain responsibilities so also the Under Trial Review Committees have been given certain responsibilities. As per that mechanism, the Authorities were supposed to take steps for the release of the prisoners.

The court then observed that it is the discretion of the court whether to grant bail or not. The order stated,

“There are two aspects. One is moving the concerned Court for releasing on bail and other is passing an order of bail on their request. It is true that it is the discretion of the concerned Court ; whether to grant bailor not. Such discretion cannot be taken away by any act”

However the court said that it was not inclined to grant bail since the trial Court as well as the high court had considered the merits, and the applicant could not secure bail considering the merits of the matter.

Case Title: Mahipati Antu Jadhav vs State of Maharashtra

Statue: Code of Criminal Procedure 1973