Court's discretion while deciding bail plea cannot be taken away by any law: Bombay High Court

The discretion of the Court while deciding bail applications cannot be taken away by any law, the Bombay High Court held recently while interpreting a scheme framed by the National Legal Services Authority (NALSA) for the release of undertrials based on their age [Mahipati Antu Jadhav v. State of Maharashtra]..Justice SM Modak explained that the process of obtaining bail from the court consists of two elements - the submission of a bail application and the court's decision on whether to grant or deny bail. He further noted that such discretionary powers of the court to grant or reject bail cannot be taken away by a statute."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 bail or not. Such discretion cannot be taken away by any act," the single-judge said..He made the observation while rejecting the bail plea of a 71-year-old man. The bail applicant had sought his release from prison on bail the basis of a NALSA scheme that favoured the release of prisoners over 65 years of age. .The scheme by NALSA titled as ‘Release_UTRC@75’ was launched in July 2022 for identifying eligible prisoners so that they may be released from prison upon a recommendation by an undertrial review committee..There were various categories within the scheme that apply to both convicts and undertrial prisoners who are seeking release. One such category pertained to the release of undertrial prisoners who have crossed the age of 65. The Court was considering an application by an undertrial prisoner falling under this category..Advocate Hrishikesh R Chavan, appearing for the applicant, informed the Court that his application for release was rejected by a Sessions Court. He urged the High Court not to look into the merits of case as that would defeat the purpose of the NALSA scheme..On the other hand, Assistant Public Prosecutor NB Patil said that if the merits of the matter were not considered, many undertrial prisoners will be released on bail..The High Court noted that the Sessions Court had taken into account the accusation against the applicant under Section 302 (murder) of the Indian Penal Code (IPC), as well as his alleged attempt to murder four witnesses, before dismissing the bail application..The Court noted that the NALSA scheme had shone light on several undertrial prisoners languishing in jails for several years. "So, the attention of the stake holders is brought. One can say that the Authorities of DLSA and MSLSA were successful in bringing into the notice of this Court about the case of the Applicant," the Court said..All the same, considering the merits of the case, the Court found that the applicant could not be granted bail. Hence, his application was refused with directions to the trial court to expedite the trial, given the applicant's age..[Read Order]