The top court said an accused cannot surrender before a trial court and seek regular bail when a higher court has already granted a pre-arrest bail and the matter is pending there.
It said that copies of its order be sent to directors of all judicial academies in the country for bringing to the notice of all judicial officers exercising criminal jurisdiction in their respective states.
A bench of justices Ranjan Gogoi and Navin Sinha took note of an incident in which a trial court in Jharkhand had granted regular bail to an accused, who had already managed to get anticipatory bail from the top court as an interim relief while the matter was still pending.
"If this is a practice that is prevailing in some of the subordinate courts in the country and we had noticed several such cases, time has come to put the subordinate courts to notice that such a practice must be discontinued and consideration of regular bail applications upon surrender during the pendency of the application for pre-arrest bail before a superior Court must be discouraged," it said.
The top court order came on a plea filed by Jharkhand, through its standing counsel Atulesh Kumar, challenging the grant of regular bail by the trial court.
The bench clarified the factual position and said when the top court or a high court or even a sessions judge grants anticipatory bail and the matter is pending before that court, there can be no occasion for the accused to appear and surrender before the trial court and seek regular bail.
"Surrender and a bail application in such circumstances is nothing but an abuse of the process of law by the concerned accused," it said.
What irked the top court was the affidavit filed by the accused in which it was said that it has become a regular practice for accused to surrender before the trial court and seek regular bail immediately after interim pre-arrest is granted by the higher forums.
The top court had also asked registrar general of Jharkhand High Court to obtain the explanation from judicial officer of the trial court, who had granted the bail.
After perusing the explanation, the top court said, "we are of the view that regular bail was granted to the accused- petitioner on a misconstruction of this court's order, which misconstruction was a bona fide mistake on the part of the judicial officer. The matter insofar as the judicial officer is concerned is, therefore, closed".
The court, while recalling its earlier interim pre-arrest order and set aside the regular bail granted by a trial court, directed the Jharkhand-based petitioner to surrender before the trial court within two weeks.
However, it made it clear that if the accused does not surrender, the investigating agency shall apprehend the accused and take her into custody.
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