Confusion in Allahabad HC over anticipatory bail has led to ‘geography justice’, ‘bench-hunting’

In March 2020, a 5-judge bench said anticipatory bail pleas can be filed directly in HC under 'special circumstances'. But at least 2,000 such bail orders have been passed in Allahabad HC since Jan. 2021.

A file photo of the Allahabad High Court. | Photo: Commons

New Delhi: Two years after the provision of anticipatory bail was re-introduced in the state of Uttar Pradesh, the Allahabad High Court has been grappling with widespread confusion over whether it has jurisdiction to directly grant pre-arrest bail.

This bail provision was scrapped in Uttar Pradesh in 1976, during the Emergency, but was reintroduced 43 years later, in June 2019. And in March 2020, a five-judge bench of the Allahabad HC also clarified that a person apprehending arrest may approach the high court directly seeking pre-arrest bail without approaching the sessions court first but only under “special circumstances”.

However, since the beginning of this year, Justice Siddharth (who goes by his first name only) of the Allahabad HC has allowed thousands of anticipatory bail applications directly, highlighting the importance of “personal liberty”. These applicants did not first approach the sessions court.

Meanwhile, at least three other judges of the HC have repeatedly rejected these applications, asking applicants to approach the lower court first.

This difference of opinion on the procedure has led to a phenomenon that lawyers are referring to as “geography justice” — the result of an anticipatory bail application in the high court now depends on which judge hears the application.

According to lawyers in the HC, this has also led to their peers not appearing before judges that are known to reject such applications allegedly leading to ‘bench-hunting’.

Bulk orders allowing pre-arrest bail in Allahabad HC

Under Section 438 of the Code of Criminal Procedure, anyone who has an apprehension of being arrested on a non-bailable offence can approach the high court or the sessions court for anticipatory bail.

While the section grants ‘concurrent jurisdiction’, allowing both the sessions court as well as the high court to grant anticipatory bail, several HCs have clarified, as a self-imposed restriction and as a rule of procedure, that barring exceptional cases, anticipatory bail applications should ordinarily be first filed in the sessions court and then the high court. As was done by the Allahabad HC in March 2020.

However, since January 2021, Justice Siddharth has passed bulk orders granting anticipatory bail to those who approached the high court directly without moving the sessions court first.

Furthermore, all these orders had a paragraph saying that “irrational and indiscriminate arrests are gross violation of human rights”, with the court highlighting the importance of liberty.

A text search on the Allahabad HC website for the months of January, February and March shows that over 1,500 such orders were passed with the same paragraph copy-pasted, and used as a reason to grant anticipatory bail.

A similar search on the website Indiankanoon reveals that around 2,000 such orders were passed this year. Similar orders have been passed by Justices Alok Mathur and Shekhar Kumar Yadav.

‘No compelling reasons needed’: Justice Siddharth

Justice Siddharth also expressly rejected the idea that there needs to be special or compelling reasons to approach the high court first in such matters.

In an order passed on 10 May, the judge observed that “there is no requirement of giving any special or compelling reason to approach this Court for grant of anticipatory bail without approaching the Court of Session”.

Justice Siddharth had also opined that the “apprehension of an accused being infected with novel coronavirus before and after his arrest” is a valid ground for grant of anticipatory bail to an accused.

However, on 25 May, the Supreme Court stayed the general directions issued by Justice Siddharth on grant of anticipatory bail in the 10 May order.

The apex court also directed that “the courts shall not consider the said directions while considering other applications for anticipatory bail”. But between 10 May and 25 May, Justice Siddharth had already cited this order in over 190 anticipatory bail orders.

‘There need to be compelling reasons’: Other judges

A few other HC judges, meanwhile, hold contrary views on the matter and have sent anticipatory bail applicants to the sessions courts, instead.

Since April, Justice Rohit Ranjan Agarwal has passed at least 70 such orders.

In several of these orders, he has referred to last year’s five-judge bench decision, saying that this judgment “held that there must be compelling or special circumstances entitling a party to directly approach the High Court for grant of anticipatory bail”.

Justice Agarwal has asserted that the HC has to first determine whether the applicant seeking anticipatory bail has pointed out any compelling or special circumstances for entertaining the application.

Noting that no such compelling or special circumstance was found, several applications were dismissed with the applicant being granted the liberty to approach the sessions court.

Similar orders have been passed by Justices Yashwant Varma and Vivek Agarwal.

Is the pandemic to blame?

According to lawyers practicing in the HC, Justice Siddharth’s reasoning made sense considering the lockdown as well as the urgency with which anticipatory bail applications should ideally be dealt with.

“On paper, the lower courts were functioning, but they didn’t really have the infrastructure to conduct virtual hearings. So litigants and lawyers chose to approach the high court instead of first going to the sessions court,” a lawyer told ThePrint.

An order passed by Justice Siddharth in January also mentioned that the applicant had approached the high court directly citing “the uncertainty regarding the functioning of the sessions court”.

Another lawyer felt that the judges asking litigants to go to the sessions court first need to be more “considerate”, in light of the pandemic and the interest of the litigants who stand a chance to get arrested in the interim.

“Concurrent jurisdiction and relegating applicants to lower courts, where mostly such applications are rejected, only delays the process in which applicants suffer irreparably,” another high court lawyer added.

‘Geography justice’

A perusal of the Allahabad HC orders passed this year also revealed that in several cases lawyers failed to appear for a virtual hearing when the application was heard by judges who are known to ask applicants to approach sessions courts first.

According to a lawyer practicing in the HC, lawyers were now avoiding appearing before a few judges, knowing that no adverse orders would be passed because of virtual hearings.

“I had an anticipatory bail matter listed yesterday and I did not appear because I knew they’ll ask me to approach the sessions court instead…And many other lawyers I know have been doing this too,” the lawyer, who did not wish to be named, told ThePrint.

Another lawyer said that once a lawyer does not appear, the court posts the matter for a later date, which is usually a month away.

“Applicants are already suffering due to Covid and long dates make the anticipatory infructuous as in the meantime they get arrested. Or have to hide away,” he added.

A third lawyer explained that due to the pandemic, fewer benches are hearing cases and hence, the roster changes on a weekly basis.

Therefore, lawyers avoid appearing, in the hope that the next time their bail application is listed, it’ll be before a judge who is more inclined towards granting anticipatory bail. “This is virtually bench-hunting,” he added.

He called the hearing of cases in the high court a “potluck”, with a current working strength of 99 judges.

“HC mein geography justice chalta hai…Court ka geography badla, aur apke matter ka relief badal gaya (It is geography justice that goes on in the high court…the moment there’s a change in the court’s geography, there’s a change in the relief that you’ll get),” the lawyer told ThePrint.

(Edited by Rachel John)