The Supreme Court has expressed displeasure over the Jharkhand High Court orders summoning senior state officials while allowing an anticipatory bail plea of a man, saying the HC went outside the scope of the case and can at best register a public interest litigation if it finds that the factual scenario supports such an action. A bench of justices Sanjay Kishan Kaul and Krishna Murari, in its order passed on June 29, said that there is no requirement of appearance of the officers and since the proceedings arising before the high court judge from the anticipatory bail application having been closed, nothing survives in those proceedings.
The bench was hearing an appeal filed by the Jharkhand government against the high court’s two orders dated April 9 and April 13 in which it had summoned senior state government officials including the chief secretary, home secretary and the health secretary, asking them why contempt action should not be initiated against them.
In its appeal, the state government has said that the high court in an unprecedented manner, unknown to law, has continued with the said proceedings and has passed a slew of directions of a general nature pertaining to the State on the alleged lapses on the part of investigating officers and government doctors resulting in alleged false prosecution of the accused, who had applied the for anticipatory bail.
The high court was hearing an anticipatory bail plea of Dhanbad resident Basir Ansari, who has been booked under section 49A of IPC and other provisions after his wife Anjum Bano has committed suicide in her maternal home within one year of marriage.
Ansari has submitted that their marriage was solemnized on July 7, 2018 and after his wife complained of abdominal pain in August 2018, an ultrasound was done and it was found that she was pregnant by three months.
“The father of Anjum Bano was informed and she was handed over to her father, who took her to his village, and the premature pregnancy was terminated. Thereafter, Anjum Bano committed suicide in her own native place,” Basir had said.
The high court noted in its order that the autopsy of Anjum Bano was conducted by Dr. Swapan Kumar Sarak but in the post-mortem report, he has not mentioned the premature termination of pregnancy of the deceased soon before her death.
The high court had then directed the chief secretary to verify the certificates of all the doctors practicing in Jharkhand either on the government side or the private side.
On April 9, the high court had noted that the affidavit filed by the chief secretary is not in compliance with the earlier orders of the court as he has even failed to mention the enrolment number of Dr Swapan Kumar Sarakfor whose conduct the case is lingering before the court since 2018.
It, thereafter, went on to summon the chief secretary, home secretary and the health secretary on the same day through virtual mode, but the officials did not appear and later cited their busy schedule owing to issues related to COVID-19 management as the reason for their absence.
The top court noted that “the high court judge proceeded to look into many other aspects dehors (outside) the aspect of anticipatory bail, on account of the alleged conduct of Dr Swapan Kumar Sarak who had conducted the autopsy and was alleged not to have mentioned that the deceased was pregnant”.
It said, “The said fact is stated to have come to light only when the ultrasound report was filed along with the anticipatory bail application. It is this nature of proceedings which have troubled the State of Jharkhand which has come up in Special Leave Petitions”.
The bench said that the HC can register a public interest litigation if it finds that the factual scenario supports such an action.
“Insofar as the betterment of the criminal justice system is concerned”, which was cited by the HC in its orders, “the case at best would be a public interest litigation if something survives in the same”, the apex court said.
The apex court said “the relevant papers should be placed before the Chief Justice of the High Court on the administrative side for examination whether the factual scenario calls upon the matter to be entertained as a public interest litigation (PIL) or not.
“If it is so entertained, then it should be so registered only as public interest litigation,” the bench said.
Additional Advocate General Arunabh Chowdhury, appearing for the Jharkhand government, submitted that the orders passed by the high court do not paint a very happy picture on account of all officers being summoned to court, more so, in view of the apex court having cautioned against unnecessary summoning officers and that too in proceedings of the nature of anticipatory bail where the issue came to an end.
He said that if the order dated April 13, is perused, really nothing would survive as the explanation of the officials concerned has been recorded with the assistance of an amicus curiae.
“That apart, the nature, scope, width and ambit of the orders passed by the high court are way beyond the powers and jurisdiction vested in the court under section 438 of the code and the high court has delved into issues/domain beyond the powers of the court exercising jurisdiction under section 438 of the code”, it said.
The state government said that the high court did not have the jurisdiction to deal with the issues which the court had raised suo-motu before itself and proceeded to express the opinion on the same including passing drastic orders for initiation of contempt against the officials of the state.