Trend of cryptic bail orders by high courts makes Suprem Court see red

NEW DELHI: A cryptic high court order granting bail to a man three months after arrest for raping his teenaged niece saw a seething Supreme Court rule on Tuesday that the high courts must pass reasoned bail orders as “reasoning is the life and blood of the judicial system”.

A bench of Chief Justice N V Ramana and Krishna Murari ordered the ‘uncle’ to be taken back into custody and frowned at the Rajasthan high court for not following elementary parameters — impact of the released ‘uncle’ on the rape survivor and witnesses in the family — while granting bail to the accused through a cryptic order just because he had been behind bars for three months.

“The period of imprisonment, being only three months, is not of such a magnitude as to push the court towards granting bail in an offence of this nature,” the bench said.

Writing the judgment, CJI Ramana extolled the virtues of a reasoned court order in a three-tier justice dispensation system. “Reasoning is the life blood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system. An non-reasoned (cryptic) order suffers the vice of arbitrariness,” he said.

“In the present case, the ‘uncle’ is accused of committing a grievous offence of rape against his young niece of 19 years. The fact that he is a habitual offender and nearly twenty cases are registered against him have not even been mentioned in the impugned order. Further, the high court has failed to consider the influence that the accused may have over the prosecutrix as an elder family member,” he said.

After asking the ‘uncle’ accused to surrender within a week or face arrest by police, the bench focussed on rectifying a recent undesirable trend among the high courts of resorting to cryptic order while granting or refusing bail to accused persons.

“There is a recent trend of passing such orders granting or refusing to grant bail, where the courts make a general observation that ‘the facts and the circumstances’ (of the case) have been considered. No specific reasons are indicated which precipitated the passing of the order by the court,” the Supreme Court said, adding that it has consistently ruled in favour of reasoned bail orders, especially in cases involving heinous and serious offences.

Coincidentally, another apex court bench of Justices M R Shah and B V Nagarathna also took serious note of a non-reasoned order of the Uttarakhand high court in a service matter. Writing the judgment, Justice Shah said, “When the Constitution confers on the high courts the power to give relief,.. the high courts would be failing to perform their duty if relief is refused without adequate reasons.”

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