NEW DELHI: In a rare move, the Rajasthan High Court approached the Supreme Court against its own single judge order, directing the DGP not to arrest till July 17 people booked for offences entailing up to 3-year jail term, which was stayed by the top court on Tuesday.
The high court challenged the order on the ground that the direction will 'create a situation of lawlessness'.
The single judge has "ignored" the settled principle of law that Chief Justice is "Master of Roster" and "Chief Justice is first among equal," the Rajasthan High Court said.
It further stated that the single judge while dealing with a bail application has 'erroneously violated' the principle of law, Rulings and Conventions by 'interfering into the exclusive administrative jurisdiction of the Chief Justice'.
A vacation bench of Justices Vineet Saran and B R Gavai stayed the three directions with regard to not arresting the accused charged under offence punishable with a maximum sentence of up to three years till July 17, 2021 and not to list pre-arrest bail applications before the High Court as well as Sessions Court.
Senior advocate Vijay Hansaria, appearing for Rajasthan High Court, said that the single judge has once again passed an order which was not appropriate.
Senior advocate Manish Singhvi, appearing for the Rajasthan government, supported the arguments and said that the order needs to be stayed.
The bench noted the submissions of both the senior counsels and issued notice on the plea and listed the matter for further hearing after six weeks.
"It is submitted that single judge erroneously by a blanket direction directed not to list pre-arrest bail applications before the High Court as well as Sessions Court. The single judge further erred by passing blanket order directing not to arrest accused in an offence in which punishment is up to three years and the offence is triable by first class magistrate. This shall create lawlessness," the high court said in its appeal.
The high court said it is constrained to file the present appeal as single judge while dealing with the bail application under section 438 CrPC directed not to list any pre-arrest bail application before the Sessions Court and High Court in offences where maximum sentences extends up to three years and the offence is triable by first class magistrate till the reopening of the court after Summer Vacations.
It said that single judge has further directed the DGP, Rajasthan to issue instructions to all the officers not to arrest accused charged under an offence where a maximum sentence extends up to three years and the offence is triable by first class magistrate till July 17, 2021.
The high court said the top court had last year granted stay on the similar order, which had directed the registrar (judicial) not to list the Bails, Appeals, Applications for suspension of sentence in appeal and revision in the category of extreme urgent matters during lockdown and all such matters be listed after withdrawal of order of complete lockdown by the Government of India.
It added that the single judge erred in law by not giving notice to the high court on administrative side before passing the impugned order affecting the court's administration and the people of the state.
Referring to various top court verdicts which had held that Chief Justice is the master of roster, the High Court said, "vide impugned order the single judge erroneously and illegally interfered in the exclusive administrative jurisdiction of the Chief Justice of the High Court under Article 229 and 235 of the Constitution."
It said that the High Court on the judicial side could not direct its Registry regarding listing or not listing the matters before the court in the absence of any rules or direction from the Chief Justice.
"It is submitted that the only issue before the single judge was consideration of grant of pre-arrest bail to respondent number-2 (Than Singh). The single judge could not have exercised any other power available under Article 226/227 of the Constitution. It is submitted that all cases relating to public interest are required to be heard by the division bench of the High Court as per the High Court Rules," it said.