A single judge bench of Bombay High Court asked a trial court to explain it’s stand when the trail court refused to accept cash bail and release an accused who is in jail with her 10 months son.
From Paras 4-9,
Gulfasha Vs State of Maharashtra on 28 Jun 2021
4. Learned counsel for the Applicant states that in spite of this order and in spite of urgency mentioned in the order itself, the trial Court has not accepted cash bail and has not released the Applicant on bail as of today.
5. This is serious breach of order passed by this Court. The trial Court was expected to follow the clear directions issued in the operative part of the order mentioned in paragraph No.8 of that order. The trial Court was not concerned with the other narration as well as reasoning part in the order. There is absolutely no ambiguity in the operative part of the order and it was duty of the trial Court to follow the order. In spite of that, unnecessary hurdles are created in giving effect to that order. Learned counsel for the Applicant states that specious reason given for not releasing the Applicant, was that section 302 of IPC was not mentioned in first paragraph of the order.
6. This Court does not have to explain the narration mentioned in this order to the trial Court. However, to clarify this, it is necessary to mention that, initially the offence was registered u/s 307 of the IPC on the basis of statement given by the deceased herself. Subsequently, the deceased had succumbed to her burns and the informant was described as ‘the deceased’ in the order. There is also reference to the ‘dying declaration’, in paragraph No.7. In spite of this, the trial Court exceeding its jurisdiction, has refused to obey order of this Court, specifically mentioned in paragraph No.8 as the operative part. This has seriously affected the Applicant’s valuable right of getting released on bail at the earliest. Her liberty is affected in spite of clear directions of this Court.
7. If there was any ambiguity in the order, it was for the parties and in particular was for learned APP, who had appeared in the matter, to point it at. The order could have also been corrected by a higher forum. But the trial Court had no authority to question that order. In any case, the operative part of the order is very clear and there was absolutely no ambiguity. The trial Court was supposed to follow these directions mentioned in the operative part.
8. In spite of this order, the Applicant had to suffer in jail custody for more period than was necessary, particularly when she had 10 months old child with her. Considering the repeated concerns expressed by the Hon’ble Supreme Court regarding unnecessary crowding of the jail, the attitude of the trial Court is not proper in this case.
9. In these circumstances to prevent any further hurdles and only for that purpose, I am clarifying and adding section 302 of IPC in the first paragraph of the order. However, the trial Court will have to explain its stand and report will have to be submitted to this Court.
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