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Ganesh Ashok Pathare v. State Of Maharashtra
Structured Summary of the Opinion — A.M. Badar, J.
Factual and Procedural Background
A praecipe has been moved in respect of an already-pending bail application. According to the learned counsel for the applicant, the applicant should be released on bail because the applicant's son is "100% blind." The applicant is involved in an offence under Sections 8(c) and 22 of the N.D.P.S. Act. The Court was nominated by the Chief Justice to hear extremely urgent criminal matters during the COVID-19 pandemic and the consequent lockdown. The opinion describes the procedural mechanics that follow allowance of a bail application (preparation of bail writ by Registry, transmission to Sessions Court, verification of sureties and issuance of release warrant, transmission to prison, and release formalities), and explains how these processes are impeded by the lockdown and minimal staffing.
Legal Issues Presented
- Whether the bail application before this Court can be said to be "extremely urgent" during the COVID-19 pandemic and the State-declared lockdown, thereby warranting immediate entertainment and orders for release.
- Whether the praecipe seeking immediate action (processing and grant of bail) can be granted given the practical constraints and public health considerations during the lockdown period.
Arguments of the Parties
Applicant's Arguments
- The applicant's counsel stated that the applicant's son is 100% blind and, on that ground, the applicant needs to be released on bail.
The opinion does not contain a detailed account of any opposing or State arguments in the record provided.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shahrukh S/o. of Juharu Khan v. State of Rajasthan, S.B. Criminal Misc. Second Bail Application No. 17767 of 2019 (High Court of Rajasthan, Jaipur Bench) | The Rajasthan High Court's observations addressed whether bail applications and similar matters, though ordinarily given preeminence, qualify as "extremely urgent" during a nationwide lockdown; it emphasized that release processes require the involvement of court and jail staff and could risk public health and breach lockdown measures. It also noted that administrative notifications cannot curtail judicial power to either allow or adjourn matters, but that practical difficulties and public interest may make release inadvisable during lockdown. | This Court relied on the Rajasthan High Court's reasoning to underscore that even normally prioritized matters (like bail) may not qualify as "extremely urgent" during lockdown, because release involves many processes and personnel, risks breaching lockdown and public health measures, and could adversely affect enforcement of the lockdown. The Rajasthan decision was cited to support the conclusion that the present bail application is not sufficiently urgent to be entertained. |
Court's Reasoning and Analysis
The Court's analysis proceeded in several distinct steps, applying practical and public-health-focused reasoning to the facts before it:
- Identification of the sole issue to be determined: whether the bail application is "extremely urgent" in the special circumstances of the COVID-19 pandemic and the accompanying lockdown.
- Explanation of the full administrative and judicial process necessary after granting bail: preparation of the bail writ by the Registry, transmission to the Sessions Court, entry and processing at the Sessions Court, sending to the appropriate trial court (Sessions Court or Judicial Magistrate First Class), presentation before the presiding officer, verification of proposed sureties (including solvency certificates and entries in the Surety Register), issuance of the Release Warrant, and transmission to the prison where prison staff undertake formalities for release.
- Observation that the lockdown has resulted in courts and offices being virtually closed with only bare-minimum staff, meaning that processing a bail order would require engaging several staff members and officers whose deployment currently risks spreading COVID-19 and contravenes lockdown restrictions.
- Conclusion that mere fact of detention (pre-trial or post-conviction) does not by itself create an "extremely urgent" situation that justifies undertaking the regular, staff-intensive bail-release process during the lockdown; in the Court's view, the present case did not present such an extreme urgency.
- Consideration of law enforcement priorities: Police and prosecutorial personnel are heavily engaged in implementing the lockdown and in maintaining law and order (including responding to incidents of violence or disruption of medical/sanitation efforts), and it is not appropriate to require redeployment of such personnel away from field duties to attend court processes for regular bail applications.
- Public-health and practical constraints were emphasized: sealed district boundaries, sealed areas within Mumbai, non-functioning public transport, and the risk that releasing a prisoner could endanger the prisoner and others by facilitating movement that may spread infection. The Court regarded preserving social distancing and minimizing movement as paramount.
- Reliance on the Rajasthan High Court's observations (Shahrukh) to reinforce that bail and similar applications, though ordinarily prioritized, need not be treated as "extremely urgent" during lockdown where release processes would risk public health or impede lockdown enforcement.
Holding and Implications
Holding: The Court concluded that the application cannot be entertained at this stage and that there is no urgency in the matter. The praecipe cannot be granted and is filed. Parties are directed to act on an authenticated copy of the order.
Implications:
- The immediate practical effect is that the bail application was not entertained and the praecipe seeking processing/expedition was refused.
- The Court grounded its decision on operational constraints arising from the COVID-19 pandemic (limited court staff, police deployment for lockdown duties), risks to public health from facilitating prisoner movement during sealed boundaries and non-functioning public transport, and the need to preserve social distancing.
- The opinion does not announce or purport to establish any novel legal principle beyond applying the cited reasoning to the present circumstances; no broader precedent-setting implications are discussed in the provided text beyond the application of the cited Rajasthan decision and the Court's stated approach to urgency during the pandemic.
A.M. Badar, J.:— Not on board. Taken on board.
2. A praecipe is moved. According to the learned counsel for the applicant as the son of the applicant is 100% blind, the applicant needs to be released on bail who is involved in an ofence under Sections 8(c) and 22 of the N.D.P.S. Act.
3. It seems that the application is already pending before this Court. The ground that son of the applicant is 100% blind was available to the applicant even when the application was fled before this Court.
4. Vide Notice dated 26th March 2020, The Hon'ble The Chief Justice is pleased to nominate this court to hear extremely urgent judicial matters on the criminal side due to advised against congregation because of outbreak of Novel Corona Virus (COVID-19).
5. The World Health Organization has declared COVID-19 as a pandemic. As a result, the National Disaster Management Authority of the State was pleased to pass an order directing the Central Government as well as the State Governments and its Authorities to take necessary measures for curbing the menace of outbreak of COVID-19. Several guidelines came to be issued by it. Accordingly, The Hon'ble Prime Minister announced Nationwide Lockdown from 25th March 2020 to 14th April 2020. The Ministry of Home Afairs invoked Section 6 of the Disaster Management Act, 2005 and issued an order directing implementation of measures by the State and its Authorities including restriction on movement of citizens, closure of all Ofces, Factories, Shops and Establishments except essential goods and services. Legal action is being taken by Law Enforcing Agencies against the defaulters by resorting to Section 188 of the Indian Penal Code which deals with the ofence of disobedience to order duly promulgated by a public servant.
6. Entire nation is facing the challenge of fghting the menace of COVID-19. Maharashtra is the most afected State of India where there is largest number of patients of COVID-19. Day by day number of such patients is multiplying. In Maharashtra, fgure of confrmed infected patients is touching 500. Entire Western Maharashtra, which is under territorial jurisdiction of the Principal Seat of this Court, is worstly sufering from this pandemic. Mumbai, Thane, Pune, Kolhapur, Sangli etc. are most contaminated districts by COVID-19. These districts are having largest number of patients.
7. In the extremely urgent category, the instant bail application is fled. The work of the Registry of this Court is virtually being run with bare minimum ofcials and almost all departments of the Registry are not functioning. In the wake of the current pandemic of COVID-19, this court is required to consider the urgency of any matter, taking into account the entire process of passing of the orders and also implementation and execution of the same. The term “urgency” or “urgent” is very subjective and needs to be weighed considering the situation of that particular time when the application is moved. The instant application is moved for bail at a time when the entire world is facing a pandemic and is trying to fght it out together by various means and modes. In this background, the only issue I need to consider is whether this application for bail can be said to be “urgent” and any orders need to be passed?
8. Now let us keep in mind the process undertaken after disposal of the bail application. The bail writ is required to be prepared by checking the record by the Registry of this court, in the event the bail application is allowed. Then, it is required to be sent to the concerned Sessions Court. The staf and ofcers of such Court are then required to process that bail writ after taking entry thereof in the Writ Register of the Sessions Court. Thereafter, the bail writ is sent to the concerned Court which can either be the Sessions Court or the Court of the Judicial Magistrate First Class of the concerned district. The staf working in that court is required to put the bail writ along with record before the Presiding Ofcer of such Court for further action. The proposed Sureties are required to apply for Solvency Certifcate to concerned Revenue Authorities. Then, Sureties are required to apply to the concerned Court by collecting necessary documents for permission to stand as Sureties. The Presiding Ofcer of such Court is required to verify Sureties. Entries in the Surety Register kept at the concerned Court are also required to be verifed by the concerned staf for ascertaining ftness of a person for standing as a Surety. If everything is found in order, then the Presiding Ofcer of the concerned Court issues the Release Warrant. Such Release Warrant is then required to be sent to the concerned prison. The staf of the concerned prison then undertakes necessary formalities for releasing the prisoner in terms of the bail order. It is, thus, clear that several staf members, ofcers and the Presiding Ofcer of the concerned Court and other departments of the State are required to work on the bail writ, after its issuance by the court.
9. Because of Lockdown declared by the State, as mentioned in the foregoing paragraph, all Ofces including Ofces of the Court are virtually closed. By deputation of bare minimum staf extremely urgent business is being transacted. Processing a bail order and consequent release of an accused/convict, as such, virtually amounts breaching the order of complete Lockdown. Putting several employees and ofcers to work, may put them to the risk of contracting COVID-19. In this view of the matter, I am of the considered opinion that unless extremely urgent situation for entertaining regular bail application is pointed out, mere fact that the accused is undergoing either pre-trial or post-trial detention, does not warrant entertainment of the regular bail application on the occasion of Lockdown declared by the State. The case in hand is not refecting any such extremely urgent situation warranting entertainment of the regular bail application.
10. There is another difculty in entertainment of regular bail application in the wake of pandemic. The entire Law Enforcing Machinery is focusing on implementation of the Lockdown throughout the State by virtually remaining on the feld for 24 hours. This is being done for saving the entire nation from the pandemic. In such a situation, it is not advisable to insist the State to depute Police Ofcers for instructing the Prosecutors by undertaking travel to the Ofce of the Public Prosecutor and attending the Court by leaving their territorial jurisdiction where their presence in such a situation is must.
11. It is also seen that while implementing order of complete Lockdown, Law Enforcing Agencies have to frequently deal with the problem of Law and Order, as several individuals or group of individuals are turning violent and disrupting the work of sanitisation as well as providing medical aid to the victims. There are incidents of assault on Nurses, Doctors, Para Medical staf and Police staf involved in combating the menace of COVID-19. Such anti-social elements are seen loitering here and there, thereby breaching the order of the Lockdown. In such a situation, presence of 100 percent members of Police Force on the feld, rather than in the Court, is absolutely essential for a limited period of Lockdown. This is necessary in the interest of the Society and Nation. Unless extreme emergent case is made out, they cannot be asked to spent their time in defending regular bail applications.
12. For enforcement of the Lockdown, boundaries of almost all districts are sealed. So far as Mumbai is concerned, it is reported that several areas are also sealed. As such, even if a prisoner is released on bail, it may not be possible for him to reach to his destination without risking his life due to outbreak of COVID-19. In this situation, the prisoner by remaining inside till completion of lockout period will help and save the life of many others. But in case he is released on bail at this time, he will endanger his own life along with life of many others. In this scenario, the prime and the only urgency this court is required to take into consideration or to look into, is how to save lives of people, be it prisoners or public, and by way of not entertaining this application at this point of time, this court will only strengthen and maintain the social distancing which is the real need of the hour. Moreover, all public transports and trains are virtually not functioning. This is also a relevant reason for not entertaining regular bail application in the event of national disaster because of outbreak of COVID-19.
13. At this juncture, it is apposite to note observations of the High Court of Rajasthan Bench at Jaipur in the matter of Shahrukh S/o. of Juharu Khan v. State of Rajasthan S.B. Criminal Miscellaneous Second Bail Application No. 17767 of 2019, the relevant paragraphs of which read thus:
“1 Preeminence is always given by the Courts to Bail applications, applications for suspension of sentence in Appeals and Revisions but as to whether the same fall within the category of “extremely urgent matters” and should be taken up at a time when the entire Country, except essential services, is under lockdown is the moot question.
2 Bail Applications, Appeals under SC/ST Act, Revisions and Appeals with applications for suspension of sentence are listed in the category of urgent matters. When the entire Country except essential services is under closure, whether the above would fall within the category of extremely urgent matters is the moot question.
3 It is known fact that WHO has declared COVID-19 as a pandemic. National Disaster Management Authority Government of India in exercise of the powers under section 6 (2)(i) of the Disaster Management Act, 2005 (hereinafter referred to as ‘the Act’) has issued order dated 24.3.2020 directing Ministries/Departments of Government of India, State Governments and State Authorities to take measures for ensuring social distancing so as to prevent the spread of COVID-19 in the Country. National Executive Committee has issued guidelines on the measures to be taken by the Ministries/Departments of Government of India, State/Union Territory. Government and State/Union Territory Authorities for containment of COVID-19 epidemic in the Country.
4 The guidelines annexed to Order No. 40- 3/2020 DM-1(A) is reproduced hereunder:—
“Whereas, the National Disaster Management Authority (NDMA), is satisfed that the country is threatened with the spread of COVID-19 epidemic, which has already been declared as a pandamic by the World Health Organisation, and has considered it necessary to take efective measures to prevent its spread across the country and that there is a need for consistency in the application and implementation of various measures across the country while ensuring maintenance of essential services and supplies, including health infrastructure;
Whereas in exercise of the powers under Section 6(2)(i) of the Disaster Management Act, 2005, the National Disaster Management Authority (NDMA), has issued an Order no.1-29/2020-PP (Pt.II) dated 24.03.2020 directing the Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities to take efective measures so as to prevent the spread of COVID-19 in the country;
Whereas under directions of the aforesaid Order of NDMA, and in exercise of the powers, conferred under Section 10(2)(I) of the Disaster Management Act, the undersigned, in his capacity as Chairperson, National Executive Committee, hereby issues guidelines, as per the Annexure, to Ministries/Departments of Government of India, State Union Territory Governments and State/Union Territory Authorities with the directions for their strict implementation. This Order shall remain in force, in all parts of the country for a period of 21 days with efect from 25.03.2020.”
10 ……Notifcation issued by the High Court on administrative side cannot limit the powers of the Court to pass judicial orders. If the direction is to be adhered to than the Court is to either allow or adjourn the matter. If the bail application/appeal under ST/ST is allowed, the order is to be sent to the court below, sureties have to appear before the court below and advocates presence is required to identify the sureties. Release order has to be sent to the jail with the court staf.
11 If application for suspension of sentence is allowed the order is to be produced before the Trial Court which has passed the sentence. Presently in each District limited number of Courts for limited time are functional to deal with exceptional urgent matters, in that situation for attesting the bail bonds staf of the concerned Trial Court is to be requisitioned for tracing out the fle as surety bonds have to be furnished in the concerned Court fle. Thus release of one accused or convict shall risk the life of many and would adversely afect the measures taken by the State for complete lockdown.
12 It is true that Right of liberty is a fundamental right and Citizens are free to move anywhere in the country but reasonable restrictions have been imposed due to the emergent situation to prevent the spreading of COVID-19 virus. The entire country is under lockdown.
13 Release of an accused or convict at the cost of breaching the order of lockdown and at the cost of risking lives of many cannot be considered to fall within the category of “extreme urgent matter.” It is also relevant to note that Rajasthan High Court has Holi, Dashera and Winter vacations ranging from few days to few weeks during which period also Bail applications and applications for suspension of sentence are not taken up by the Court.”
14. In this view of the matter, the application cannot be entertained at this stage. There is no urgency in the matter.
15. The praecipe is therefore cannot be granted and the same is fled.
16. Parties to act on an authenticated copy of this order.
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