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Why the Delhi HC decision to limit extension of interim bail to prisoners falling under the HPC's recommendation is flawed

An authoritative clarification on this matter by the Full Bench is needed to reconcile the differing judicial opinions present, and to resolve the concerns of individuals who are on interim bail.

Nipun Arora

Ever since the beginning of the COVID-19 pandemic, there has been an attempt to decongest prisons and control the spread of the disease among inmates.

To this effect, the courts took several steps. However, there appears to be some unnecessary confusion.

The Supreme Court directed the formation of a High Powered Committee (HPC) in every state to recommend release of classes of prisoners on parole and interim bails. The HPC for Delhi recommended the release of prisoners, and later recommended extension of their interim bail as the pandemic continued.

Simultaneously, the Delhi High Court had taken cognizance of the obstructions in accessing the courts, and directed on March 25 that all interim orders (including interim bails) that would have expired “on or after 13.03.2020” stand automatically extended by about two months. This was subsequently extended further on May 15 and June15 for a month each.

However, there was confusion. Considering the original order was regarding extension of orders subsisting on March 16, there were some views that the extensions did not apply to any orders made thereafter. That is to say, an undertrial who was granted one week’s interim bail on March 15 would have his bail extended throughout the lockdown period, but someone granted interim bail a week later would have to surrender on its expiry.

On July 13, the Court clarified that the extension applies to all orders subsisting presently, and thus, everyone who is on bail gets to stay regardless of when such bail was granted. The Court observed:

“It is clarified that this order of extension of bail/interim bail/parole shall be applicable to all undertrials/convicts, who are on bail/interim bail or parole as on date irrespective of the fact that they were released on bail/interim bail or parole before or after 16th March, 2020.”

However, a Single Judge Bench of the High Court appears to have taken a different view and diluted this order. It ruled that the automatic extension applies only to those individuals who have been granted bail in pursuance to the HPC recommendations.

I respectfully argue in this article that this ruling of the Single Judge Bench is erroneous. It is based on a misunderstanding of the facts of the two sets of cases and is per incuriam.

Reconsideration required

It pertinent to observe that the proceedings regarding automatic extension of interim orders generally and the matter regarding implementation of the HPC recommendations are separate. The orders regarding automatic extension of general orders are passed by a Full Bench led by the Chief Justice, whereas the orders on HPC recommendation are passed by a Division Bench. The two cases bear different writ petition numbers as well. In any case, one does not rely upon the other, and the two are distinct, independent sets of cases.

Thus, the HPC recommendations have no discussion in the order (and no bearing on the implementation of the automatic extension of interim orders made on July 13. However, the view taken by the Single Judge Bench on July 17 appears to have mixed the two sets of cases to conclude that the automatic extension applies only to cases where bail is granted on the basis of the HPC's recommendation.

Further, the July 13 order is passed by a Full Bench and has categorically observed that the extension has been ordered to minimize the risk of individuals carrying the disease to prisons upon surrender. It is my humble opinion that the ruling of the Single Judge Bench is not in consonance with the principles of precedent and judicial propriety, and in case of any concerns, the matter ought to have been referred to the Full Bench.

At this juncture, I wish to make it clear that this article is only an academic exercise to discuss the tangled developments and not targeted towards either of the benches. There are legitimate reasons for the Single Judge Bench to have ruled in the way it did. Otherwise, an interim bail of even one day would entitle the person to remain on bail throughout the pandemic period, making the judicial discretion in granting ‘interim’ bail pointless.

However, the problems which arise out of this order, in my very humble opinion, outweigh the considerations on the other side. Firstly, individuals whose bails were expiring between July 13-17, but did not surrender due to the Full Bench decision, would face undue repercussions for ‘jumping’ bail, even though their actions were an outcome of a legitimate interpretation of the Full Bench order.

Secondly, it would mean that a person who was granted bail on March 15 – just a day prior to the cut off in the first order – gets to enjoy his liberty throughout this period as opposed to someone granted interim bail just a few days later. The only distinguishing factor between the two is the dates on which they got ‘interim’ bails, and nothing else. Thus, any classification on such an arbitrary factor is inherently unjust.

An authoritative clarification on this matter by the Full Bench is needed to reconcile the differing judicial opinions present, and to resolve the concerns of individuals who are on interim bail.

The author is an advocate practicing in Delhi.

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