IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (FOR CHALLENGING VIRES/ULTRA VIRES) NO. 14040 of 2023 FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE ==========================================================

1 Whether Reporters of Local Papers may be allowed Yes

1	Whether Reporters of Local Papers may be allowed to see the judgment ?	Yes
2	To be referred to the Reporter or not ?	Yes
3	Whether their Lordships wish to see the fair copy of the judgment ?	No
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

BHAVESH BALDEVBHAI DESAI / RABARI Versus STATE OF GUJARAT ==========================================================

Appearance:

MR ASIM PANDYA, SR.ADVOCATE with GAURAV VYAS and MR SHYAM M SHAH,ADVOCATES for the Applicant(s) No. 1 MR KM ANTANI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Date : 12/02/2024 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. This petition filed under Article 226 of the Constitution of India raises an important issue pertaining to the procedure being adopted by this Court as a long practice in issuance of “Rule” in bail matters, the applications filed under Sections 438 and 439 of the Code of Criminal Procedure, 1973 (in short as “ Cr.P.C.). The petitioner herein is aggrieved by the pendency of the bail application, namely Criminal Miscellaneous Application No. 20917 of 2022, wherein order dated 16.11.2022 was passed issuing Rule returnable on 28.11.2022 when the learned Additional Public Prosecutor already waived service of notice of Rule for and on behalf of the respondent-State.

2. It is stated in the writ petition presented on 25.08.2023, that the bail application had not been decided even after 27 adjournments without the fault of the petitioner.

3. The issues as agitated by Mr. Asim Pandya, learned Senior Advocate assisted by learned advocates Mr. Gaurav Vyas and Mr. Shyam Shah appearing for the petitioner are:-

(i) Practice of issuance of “Rule” or “Rule Nisi” and posting bail matters after two or three weeks for final hearing is contrary to the provisions of the Gujarat High Court Rules, 1993 (“the Rules’1993) and the Rules governing the procedure of this Court.

(ii) The practice of relegating accused to the (trial Court)

Sessions Court for bail when his bail application at the pre- chargesheet stage is pending in the High Court, where the chargesheet is filed during the pendency of the bail application, is to be stopped.

4. It is submitted by Mr. Asim Pandya, learned Senior Advocate appearing for the petitioner that the practice of issuing “Rule” or “Rule Nisi” on the presentation of the bail application is causing prejudice to the right of the applicants to seek release on bail at the earliest. It is contended that the bail application filed during the course of investigation or trial has to be proceeded with keeping in mind the principles of criminal jurisprudence of presumption of innocence of a person accused of an offence, placing the onus on the prosecution to prove the guilt before the Court. It is for the investigating agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied. The principle that “the bail is the rule and jail is the exception”, has been well recognized by the Apex Court in a catena of decisions, the latest being Satender Kumar Antil vs. Central Bureau of Investigation and another, (2022) 10 SCC 51, wherein the Apex Court has held therein that the word “bail” has not been defined in the Cr.P.C, but the Code, despite being a procedural law, is enacted on an inviolable right enshrined under Articles 21 and 22 of the Con

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