The Supreme Court has held that the right to apply for bail is an “individual right” implicit in the Constitution.
“The right of an accused, an undertrial prisoner or a convicted person awaiting appeal court’s verdict to seek bail on suspension of sentence is recognised in Sections 439, 438 and 389 of the Code of Criminal Procedure,” a judgment by a Bench of Justices L. Nageswara Rao and Aniruddha Bose said.
The court was hearing a case in which a Single Judge of the Rajasthan High Court had in March passed an order to not to list bails, appeals, applications for suspension of sentence in appeals and revisions in the category of extreme urgent matters.
“If there is a blanket ban on listing of these applications, even for offences with lesser degree of punishment, that would effectively block access for seekers of liberty to apply for bail and in substance suspend the fundamental rights of individuals in or apprehending detention. Such an order also has the effect of temporarily eclipsing statutory provisions,” Justice Bose, who authored the judgment, observed.
The court noted that the same judge had in May directed the police authorities not to make arrest of persons in cases where the accused is charged under an offence carrying maximum sentence of three years and the offence is triable by a First Class Magistrate.
In this order also, direction had been given to the High Court administration not to list bail applications in offences where maximum sentence extends upto three years and the offence which is triable by a First Class Magistrate.
When these orders were passed, the Covid-19 pandemic was raging across this country.
The apex court noted that both directions, in March and May, “had the potential for breaching the constitutional and legal rights of individuals who could be or are arraigned in criminal action and also put fetters on power of investigating agencies.”