Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

The informant, who was the wife of the applicant contended that the applicant had demanded 10 tolas of gold and high-quality furniture, at the time of the marriage. Further, it was stated that the parents-in-law had opposed the marriage since the day of marriage and started harassing her. They even used to give pinching words regarding non-payment of dowry.

Adding to the above, it was stated that the mother-in-law used to give messages to the applicant stating that informant is ugly looking girl and thereupon applicant started mentally harassing her.

Due to some medical condition, the informant had to leave her service and once she came back to India, the father-in-law started saying that since she was now unable to ring money by taking up service, she should bring amount of Rs 50,00,000 from her parents, otherwise she should give divorce to the applicant. In 2021, she was assaulted and driven out of the house.

Applicant had approached the Additional Sessions Judge; however, the application of the husband had been rejected and it was stated that the divorce petition have been considered. Further, it was stated that if the divorce petition would not been filed there was every possibility of patch up. However, the husband went one step ahead by filing a divorce petition and the said amount to cruelty.

It was stated that the nature of the applicants was aggressive, and they had treated the informant with cruelty. Further, it was added that if the applicants were enlarged on bail, there was strong possibility of tampering the prosecution witnesses.

Analysis and Decision

High Court expressed that,

“Filing of divorce petition by the husband cannot be taken as an act of cruelty or a ground for rejecting the anticipatory bail.”

Further, the Court stated that, certain articles valuable as well as general articles of the informant were stated to be with the applicant. In fact, she could get it under the provisions of Domestic Violence Act, it need not be seized.

In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, it was observed that there should be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

It also to be noted that Courts should not get carried away with the desire of a party to see the other behind bars. The said may be sometimes to settle the personal score and, therefore, the Courts should be on guard as to whether really the arrest is necessary. Only prima facie case against the person is also not a criterion to be looked into. 

“…not only the police officer but also the learned Sessions Judge or Additional Sessions Judge dealing with an application under Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really require’, ‘what purpose it will serve’, ‘what object it will achieve’.”

The above was stated in view of the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

In view of the above, application was allowed. [Anmol Madhukar Divekar v. State of Maharashtra, 955 Anticipatory Bail Application No. 367 of 2022, decided on 6-5-2022]


Advocates before the Court:

Mr. M.L. Muthal, Advocate for the applicant

Mrs. V.N. Patil-Jadhav, APP for the respondent

Hot Off The PressNews

The IBBI Disciplinary Committee has issued an ex-parte interim order due to the urgency of the matter and suspended the registration of Mr Subrata Monindranath Maity as an Insolvency Professional.

Read the directions issued by IBBI, here: Interim Order


Background

The Central Bureau of Investigation had arrested Subrata Monindranath Maity regarding the demand for the undue advantage of Rs 20,00,000/-.

On perusal of the FIR against the Insolvency Professional, it was observed that the allegations were serious in nature leading to contravention of multiple provisions of the Code including Section 208(2)(a) of the Insolvency and Bankruptcy Code,2016 (the Code) read with regulations 7(2)(a), 7(2)(b), 7(2)(h) and 7(2)(i) of the IBBI (Insolvency Professionals) Regulations, 2016 and clauses 1, 2, 3, 5, 9, 12, 14, 17, 24 and 28 of the Code of Conduct specified thereunder.

The above-said raised serious questions about him being ‘fit and proper’ to continue as an IP.

His arrest is bound to hamper the ongoing processes being handled by him, and therefore would jeopardise the interest of concerned stakeholders.


Insolvency and Bankruptcy Code of India

[Notification No. IBBI/DC/95(Interim)/2022]

[Interm Order dt. 9-5-2022]

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

The facts of the case are such that the petitioner and complainant were scheduled to marry on 18-07-2021 which got postponed on account of the injury which the complainant had purportedly suffered where after, there arose some differences. An FIR was lodged alleging falsely about him as he tied knot with someone else recently in April 2022 with a possible malicious view to harass the petitioner and destroy his married life.

Counsel for petitioner submitted that the allegation leveled in the F.I.R. of sexual assault are absolutely mala fide which is evident from the fact that the engagement/their relationship stood broken in July, 2021 and the complainant had not done anything and waited for a period of more than 8 months and lodged the F.I.R. in question only when she found that the petitioner is about to marry another girl.

The Court thus directed to issue notice to the respondents.

The Court further held “Meanwhile, neither the petitioner shall be arrested nor shall he be harassed in the name of interrogation.”

[Vishwas Khatri v. State Of Rajasthan,  2022 SCC OnLine Raj 764, decided on 22-04-2022]


Appearances-

For Petitioner(s): Mr. Ravi Bhansali and Mr. Mohit Singhvi

For Respondent(s): Mr. Mahipal Vishnoi


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

Delhi High Court: While expressing that a LOC is a coercive measure to make a person surrender, Chandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

Petitioner approached the Court seeking quashing of the Look Out Circular issued against her that restrained her from travelling abroad.

Counsel for the petitioner submitted that the petitioner is a globally renowned journalist and was being persecuted for speaking truth to power and being critical of the incumbent establishment.

It was stated that upon the petitioner’s arrival at the airport and after passport-visa check her travel was approved, however, at 12 noon she was detained by the Bureau of Immigration and officers told her that they have instructions from the ED to not allow her to board the flight and was conveyed that she would be receiving summons from the ED. Soon after, her immigration stamp was cancelled. The summons arrived in her email.

Analysis and Decision

High Court held that it was evident that the LOC was issued in haste and despite the absence of any pre-condition necessitating such a measure.

Bench expressed that,

An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner’s right of personal liberty and free movement. It is to be issued in cases where the accused is deliberately evading summons/arrest or where such person fails to appear in Court despite a Non-Bailable Warrant. 

It was noted that the petitioner had appeared on each and every date before the Investigating Agency when summoned, and hence there was no cogent reason for presuming that the petitioner would not appear before the Investigation Agency, therefore no case was made out for issuing the impugned LOC.

Therefore, the impugned LOC was set aside as being devoid of merits as well as infringing the Human right of the petitioner to travel abroad and to exercise her freedom of speech and expression.

Petition was allowed in view of the following conditions:

(a) The petitioner shall intimate her travel dates and detailed itinerary to the Investigation Agency forthwith along with the address of the places that the petitioner shall be visiting;

(b)The petitioner shall deposit an FDR to the tune of Rs. 1 lakh before the Enforcement Directorate at Mumbai;

(c)The petitioner shall not attempt to tamper with the evidence or influence the witnesses in any manner;

(d) The petitioner shall return to India on the date specified i.e. 11th April 2022; and

(e)The petitioner shall give an undertaking to appear before the Investigation Agency immediately on her return and on dates that might be fixed by the Investigation Agency for interrogation, if any, after the travel period.

[Rana Ayyub v. Union of India, 2022 SCC OnLine Del 961, decided on 4-4-2022]


Advocates before the Court:

For the Petitioner:

Ms. Vrinda Grover, Mr. Soutik Banerjee, Ms. Mannat Tipnis and Ms. Devika Tulsiani, Advocates

For the Respondent:

Mr. Mukul Singh, CGSC with Mr. Devesh Dubey, GP and Mr. Bharat Singh, Advocates for R-1/UOI.

Mr. S.V. Raju, ASG with Mr. Amit Mahajan, CGSC, Mr. Nitesh Rana, SPP, Mr. Dhruv Pande, Mr. Ali Khan and Mr. Imon Bhattacharya, Advocates for R-2.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., expressed that it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which was the availability of alternative efficacious remedy.

A petition was filed under Articles 226 and 227 of the Constitution of India seeking issuance of writ of certiorari for immediate arrest of accused persons and taking appropriate action against the investigation officer for the delay in lodging FIR and helping accused persons.

Petitioner’s counsel submitted that the police was not investigating the matter as per the mandate of the judgments of the Supreme Court and High Court.

Analysis, Law and Decision

High Court referred to the various cases with regard to the exercise of the writ jurisdiction by the High Court.

Recently, the Supreme Court in Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771, reiterated and summarized the principles governing the exercise of writ jurisdiction by the High Court in presence of an alternate remedy.

Hence,

“Extraordinary writ jurisdiction is to be exercised only in rare cases or certain contingencies in the interest of justice, including exceptional cases.”

Allahabad High Court’s decision in Waseem Haider v. State of U.P., Misc. Bench No. 24492 of 2020, held that the power to issue a writ of mandamus has its own well defined self-imposed limitations, one of which is the availability of alternative efficacious remedies. In the aforesaid judgment, the Division Bench has exhaustively dealt with the alternative remedies available to a person aggrieved by non-registration of FIR by the police.

Therefore, a writ to compel the police to conduct an investigation can be denied for not exhausting the alternative and efficacious remedy available under the provisions of the Code, unless the exceptions enumerated in the Supreme Court decision are satisfied.

In the instant case, it was noted that the petitioner was yet to exercise and exhaust his alternative remedies available under the provisions of the Code including approaching the Magistrate.

Bench expressed that it was the prerogative of the police/investigation agency to determine whether custodial interrogation was required.

Since the investigating agency was already investigating, the present stage was pre-mature for the writ petition to be entertained.

High Court opined that it should not ordinarily, as a matter of routine, exercise its extraordinary writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available.

In view of the above discussion, petition was dismissed. [Lalit Raj v. Union of India, 2022 SCC OnLine Del 799, decided on 16-3-2022]


Advocates before the Court:

For the Petitioner:

Mr. Shakti Narayan, Advocate

For the Respondents:

Ms. Monika Arora, Advocate for UOI

Mr. Rajesh Mahajan, ASC for State with Mr. Jyoti Babbar, Advocate with ACP Vijay Singh, P. S. Dwarka North

Case BriefsHigh Courts

Allahabad High Court: Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.

Application under Section 482 CrPC was filed with a request that the matter may be referred to the Mediation and Conciliation Centre of the Court in relation to FIR under Sections 323, 354, 498A, 504 of Penal Code, 1860 and Section 3/4 of Dowry Prohibition Act, 1961 and also quashed the entire proceeding in relation to the said FIR.

In the present case, the investigation was started and mediation was also initiated before the court below, but applicant No.1 was not satisfied with the mediation proceeding initiated before the court below, hence, the present application was filed and with the consent of counsel for the applicant as well as counsel for the opposite party 4, the matter was sent to the Mediation and Conciliation Centre of this Court on 31.07.2020.

The matter was successfully concluded, and a settlement agreement was executed between the parties and OP 4 joined her matrimonial home on 7-3-2021 and started enjoying her life with her husband and children.

In the case of Ram Lal Yadav v. State of U.P., 1989 SCC OnLine All 73  the provision of anticipatory bail, under Section 438 Cr.P.C. was not existing, therefore, there was a dilemma to get the remedy of pre-arrest during the investigation, then it was clarified by this Court that High Court has no inherent powers, under Section 482 Cr.P.C. to interfere with the arrest of accused persons during the course of investigation, but it was clarified that High Court can always issue a writ of mandamus, under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest and FIR can be quashed, under Section 482 Cr.P.C., which is covered under the principle laid down by Hon’ble Supreme Court in the Case of Bhajan Lal and the present case law laid down the by the Supreme Court in the cases as discussed.

Analysis and Decision

High Court stated that, as in the decision of Ram Lal Yadav v. State of U.P.,1989 SCC OnLine All 73, this Court held that Investigating Officer cannot be restrained from arresting the accused of a cognizable offence. Supreme Court in the case of State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426] and  Ram Lal Yadav v. State of U.P., 1989 SCC OnLine All 73 already held that FIR and its consequential proceedings can be quashed under Section 482 CrPC.

Therefore, in the present matter, Bench opined that impugned FIR and its consequential proceedings are liable to be quashed in terms of the settlement agreement of parties before the Mediation and Conciliation Centre of this Court.

Hence, in view of the above discussion, the present application was allowed and FIR was quashed. [Ishwar Singhal v. State of U.P., 2022 SCC OnLine All 28, decided on 11-1-2022]


Advocates before the Court:

Counsel for Applicant:- Durgesh Kumar Singh
Counsel for Opposite Party:- G.A., Vinod Kumar

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

An application was filed under Section 439(2) of Criminal Procedure Code, 1973 read with Section 482 CrPC for cancellation of the anticipatory bail granted to respondents 2 to 5 passed by the Patiala House Court for the offence under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 of the Penal Code, 1860.

Complainant had given a complaint against her husband, mother-in-law and brother-in-law for offences under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 IPC.

Apprehending arrest, respondents filed an application under Section 438 CrPC seeking a grant of anticipatory bail.

Additional Sessions Judge found that the grievance of the complainant, that the matter had not been investigated fairly or that the investigating agencies acted in connivance with the accused could be addressed by moving the Metropolitan Magistrate and it is for the Metropolitan Magistrate to order further investigation under Section 173(8) CrPC.

The above-said order had been assailed by the complainant.

Trial Court granted anticipatory bail to the accused after considering the statements of the accused. Status Report noted that the respondents had joined the investigation and were cooperative, both before and after being granted protection from arrest by the Trial Court.

Difference between: Rejection of application for Bail v. Cancellation of Bail

Rejection of application for Bail

Cancellation of Bail

An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the Court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused.

In the case of cancellation, the Court is called upon to extinguish the liberty that has been formerly granted.

When can a Court seize the liberty of an accused undertrial?

Stating that a Court must tread with the utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the Court, Bench explained when a Court can exercise its jurisdiction in seizing the liberty of an accused undertrial.

Supreme Court in the decisions of Delhi Admn. V. Sanjay Gandhi, (1978) 2 SCC 411 and Dolat Ram v. State of Haryana, (1995) 1 SCC 349, expounded the position in law vis a vis cancellation of bail.

The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.

Application for Cancellation of Bail and Grant of bail are different from each other, Bench added that High Court will not exercise its jurisdiction to interfere with an order of bail granted by Special Judge if there is no serious infirmity in it.

In the present matter, Court found the order of the ASJ to be well reasoned requiring no interference.

Lastly, the Court dismissed the petition noting that Court has not made any observation on the nature/manner of investigation, and if an application challenging the nature/manner of investigation is filed by the complainant, the Trial Court is requested to consider the same. [Charu Soneja v. State (NCT of Delhi), 2022 SCC OnLine Del 5, decided on 3-1-2022]


Advocates before the Court:

For the Petitioner: Mr K. K. Manan, Senior Advocate with Ms Uditi Bali and Ms Komal Vashist, Advocates

For the Respondent:  Ms Kusum Dhalla, APP for the State with SI Ravinder Kumar, PS Naraina Ms Kamlesh Mahajan, Advocate for R-2 to R-5

Case BriefsHigh Courts

Delhi High Court: Najmi Waziri, J., observed that “Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”

High Court had already held R-3 guilty of committing Contempt of Court.

R-3 had arrested the petitioner in breach of directions passed by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273,  The requisite notice was not served upon the petitioner and there were mere allegations of criminal breach of trust against the petitioner which entailed a maximum sentence of three years, and it did not warrant the arrest of a person in the manner in which it was done.

The highhandedness of the police officer, in specific breach of the Supreme Court’s directions, was evident.

Further, it was stated that the decision of Arnesh Kumar v. State of Bihar,(2014) 8 SCC 273 holds that in the event of non-service of notice under Section 41A of the CrPC, contempt proceedings would be initiated.

The Constitution of India ensures the right to personal liberty of the petitioner. The said right can only be curtained by a procedure prescribed established by law.

In the decision referred, it has been said that notice under Section 41A CrPC is requisite.

In the present matter, notice was not sent served and the law was breached.

Bench added that the petitioner is not the only one who suffered the humiliation and the indignity of being arrested; the ordeal would have affected the reputation of his family i.e. his children, wife and parents. No amount of explanation to the neighbours or those who may have seen the arrest, would undo the embarrassment and indignity suffered by the petitioner and his relatives.

High Court expressed that,

Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.

Later, R-3 filed an affidavit tendering his unqualified/unreserved apology for arresting the petitioner. The said apology was a matter of last resort, therefore it cannot be accepted.

 “…petitioner has suffered incarceration for 11 days and presently he is out on bail.”

 As R-3 was a serving police officer with Delhi Police and had served for 7 years and also has a long career ahead of him, he was sentenced to undergo simple imprisonment of 1 day alongwith a fine of Rs 2,000 as well as nominal costs of Rs 15,000.

The aforesaid sentence shall be kept in abeyance for a period of two months from receipt of the order, so as to accord R-3 sufficient opportunity to assail this order, should he so choose to.

 [Rakesh Kumar v. Vijayanta Arya (DCP), 2021 SCC OnLine Del 5574, decided on 7-12-2021]


Advocates before the Court:

For the petitioner:

Mr Ajay Kumar Pipania, Mr Aaksh Sethi, Ms Madhurima Soni, Mr Aditya Sharma, Mr Parcco Puniyani, Ms Nikita Garg, Mr Imtiaz Hussain and Mr Lakshay, Advocate.

For the respondents:

Mr. Shadan Farasat, ASC (GNCTD) with Mr Bharat Gupta along with S.I. Kuldeep.

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., while addressing the allegations of forged agreement, stated that the effect of the same would be considered during trial and no comments to reach any conclusion could be stated at this stage.

Instant anticipatory bail was sought under Sections 420/406/120-B of Penal Code, 1860.

Background

A complaint was lodged by a 90-year-old person against the petitioner and her husband alleging that he practices Vaidacharya and runs a manufacturing unit of some Ayurvedic medicines.

It was alleged that he used to propagate his advice about benefit of Ayurveda on various TV channels. Further, he came in contact with co-accused Sunil Kumar Jha, who introduced himself as channel head of Katyani Devotional TV channel and the complainant started telecasting his programs on the said channel in the year 2010-2011.

Complainant also said that Sunil Kuma Jha introduced the petitioner as his wife by saying that she is an expert having all technical knowledge to run TV channel, broadcasting etc.

Husband/co-accused of the petitioner also apprised the complainant that he had worked in Doordarshan and he alongwith the petitioner is the Director of a company namely M/s Viceroy Engineering Pvt. Ltd. It is alleged that after gaining the trust of the complainant, both the accused persons i.e. the present petitioner and her husband gave a proposal about establishing his own TV channel by purchasing majority shares of M/s Express Broadcasting Pvt. Ltd., which runs a channel namely “Zonet Zawlbuk” (earlier ENTV) and assured the complainant to create all the required infrastructure for establishment of TV channel.

Primary allegation was that the accused person trapped the complainant in the year 2016-17 and the complainant thereafter transferred Rs 2.21 Crores to the bank account of M/s Viceroy Engineering and also gave cash of Rs 25 lacs.

Further, it was added that the accused persons started promotion/ advertisement of complainant’s programme on a channel namely “Sanskriti TV” on which accused persons used content/programme of the complainant and sometimes it was live and sometimes recorded tapes were played.

In 2017, the telecast of the complainant’s programme was stopped and he was neither given payment for telecasting his programme nor he was returned the amount given for the purchase of the channel.

It was also alleged that on the advice of the accused persons, the complainant through bank transferred Rs 19,83,375/- to AV Edit Solution, Rs 27,01,542/- to Planet Cast Media Services Ltd. and Rs 1,50,50,000/- to Dish TV India Ltd. but later on the complainant came to know that the accused persons purchased the channel Sanskriti TV through shareholding of M/s Express Broadcasting Pvt. Ltd. in the name of Bindu Jha (petitioner herein) and not in the name of complainant as promised.

Complainant had also paid a sum of Rs 1.50 Crore in cash additionally for the development of the studio in the premises of the accused persons situated at Chander Nagar, Ghaziabad.

Analysis, Law and Decision

High Court noted that the matter was sent for mediation for settlement but the same could not be settled between the parties.

Court stated that as of now since the charge sheet was already filed without the arrest of the petitioner, all the material evidence and documents were collected, the petitioner was also granted interim protection and there were no allegations that during the period of interim protection she ever tried to influence the witnesses or tamper with the evidence, in the said circumstances, the bail application was allowed and the petitioner was admitted to bail.

In view of the above discussion, bail application was disposed of. [Bindu Jha v. State, 2021 SCC OnLine Del 5194, decided on 2-12-2021]


Advocates before the Court:

For the Petitioner:

Mr Mohit Mathur, Sr. Advocate with Mr Vipul Wadhwa, Advocate.

For the Respondent:

Ms Rajni Gupta, APP for the State with SI Vikram Singh, EOW.

Mr Chirag Mudgal, Advocate for the complainant.

Op EdsOP. ED.

The term “cognizance” has not been defined under the Code of Criminal Procedure, 19731 (“the Code”). To quote the Supreme Court in Kishun Singh v. State of Bihar2:

  1. … Even though the expression “take cognizance” is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence.

Arrest, investigation, remand and cognizance in criminal matters

Section 41 of the Code3 empowers police officers to arrest a person without warrant in connection with a cognizable offence. Thereafter the mandate of Section 57 of the Code4 requires the arrestee to be produced before the nearest Magistrate within 24 hours of such arrest. The Magistrate can then authorise his custody under Section 167 of the Code5. The essence of Section 167 is for the Magistrate/court to determine if custodial interrogation of the arrestee is necessary to unearth the truth in a given case.

Section 167 of the Code contemplates detention of accused to custody, empowering a Magistrate to authorise such detention of accused in such custody as he thinks fit for a period not exceeding 15 days in total. If the Magistrate does not have jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

A Magistrate shall, however, not authorise detention to custody for a total period exceeding:

(a) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(b) sixty days, where the investigation relates to any other offence.

If the investigating agency fails to complete its investigation and file its final report within the prescribed period of ninety or sixty days, an “indefeasible right” of bail accrues in favour of the arrestee. The release on bail on account of default committed by the investigating agency is widely known as default or statutory bail.

Nevertheless, if the investigating agency completes the investigation and files a final report/charge-sheet before expiry of the prescribed period under Section 167 of the Code, the Magistrate is empowered to take cognizance of the report and extend the custody of the arrestee.

In Suresh Kumar Bhikamchand Jain v. State of Maharashtra6 it was settled that Section 167 of the Code operated only at investigation stage i.e. pre-cognizance stage and ceases to operate after completion of investigation. Then comes the cognizance stage wherein the court after perusing the final report and material, can extend the remand of accused to custody under other provisions of law. The Magistrate, as held by the Constitution Bench in Dharam Pal v. State of Haryana7 is to apply his mind to a final report/charge-sheet or challan and proceed with the matter as per the provisions stipulated in the Code. The accused continues to remain in custody unless he is granted bail with regards to the merits of the case. Section 209 of the Code8 authorises the Magistrate to remand an accused to custody while committing a matter to the Court of Sessions, if the matter is triable exclusively by the Court of Sessions whereas Section 309 of the Code9 empowers the Magistrate/Court to remand an accused to custody from time to time, by issuing a warrant. However, Sections 209 and 309 of the Code come into picture only at a post-cognizance stage10. This means that the court can exercise these powers only after taking cognizance of the police report/charge-sheet or challan. There however are times when courts keep final reports pending without taking cognizance and yet proceed to extend the custody of accused. As regards prosecution against Judges and public servants, Section 197 of the Code11 states that no court shall take cognizance of such offences without previous sanction of the competent authority. A similar bar exists in certain special statutes like the Prevention of Corruption Act, 198812 (refer Section 1913). In such cases, if the court fails to take cognizance of the offence after completion of investigation, could further detention of the arrestee be legal?

Analysis

In Nitin Nagpal v. State14, the issue cropped up before the Delhi High Court. The record stated that after 18 days of investigation being completed, the Magistrate took cognizance of the report/charge-sheet. This means that the person was not kept in custody either under Section 167 or under Section 209 or Section 309 of the Code. The Single Judge Bench of the Delhi High Court, taking into account the relevant provisions of the Code, agreed with the petitioner’s contentions that it was impermissible for the Magistrate to keep the report pending for 18 days. The custody of the petitioner was therefore termed “illegal”. However, as the Magistrate had taken cognizance of the report albeit after 18 days, the High Court denied releasing the petitioner from jail. It was observed:

  1. Under these circumstances, although I am in agreement with the learned counsel for the petitioner that as on the date of the application for bail made on 4-10-2005 the petitioner’s custody was illegal and he was liable to be released, I am unable to allow the present application for bail underSection 167(2) of the Code for the reason that cognizance has since been taken and presently the petitioner is in judicial custody under a valid order or remand. This application is, accordingly, dismissed.15

In Kapil Wadhawan v. CBI16, the Bombay High Court also had the occasion to deal with the issue. It was argued by the Senior Counsel for the petitioner that after completion of investigation, the report was not filed by producing it before the Special Judge but it was only presented in the Department of the Court. It was therefore contented that the accused deserved to be released on default bail. This contention, however, was rejected by the Single Judge Bench of the High Court observing that the Code did not provide that the report had to be specifically presented before the Magistrate and not Registry.

In Suresh Kumar Bhikamchand Jain17, the Full Bench held that once the final report was filed by the investigating agency, Section 167(2) of the Code ceased to apply, irrespective of whether the Magistrate had taken cognizance of the report or not. Reliance was placed on the Constitution Bench judgment of Sanjay Dutt v. State (2)18\which had observed that once the report was filed, bail could only be sought on merits of the matter and not on account of default of investigation.

While the ratio rendered in Suresh Kumar Bhikamchand Jain decision19 may appear to be correct at first blush, it would be advantageous to refer to Sanjay Dutt judgment20 wherein the five-Judge Bench also observed that the custody of the accused after the challan (charge-sheet) is filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure, which we have seen above to be Sections 209 and 309 of the Code. In cases where the Magistrate or court fails to take cognizance of the final report after completion of investigation is deemed to be a pre-cognizance stage. It is therefore impermissible for the court to extend the custody of accused in such circumstances for two reasons:

  1. remand to custody under Section 167 ceases to apply once investigation is completed; and
  2. custody under Sections 209 and 309 operates only at a post-cognizance stage.

Considering that “custody” in such situations is not governed by any legal provision, it will suffice to say that both, the remand order as well as custody of the accused would be illegal.

Conclusion

It is fairly settled that trial courts have to follow the procedure of law which is provided21 under the Code or statute. They do not have any inherent powers which lie exclusively22with the High Courts.

Based on the above analysis, is it manifest that extension of custody by the court after completion of investigation, without taking cognizance of the final report/charge-sheet renders the custody of an arrestee illegal. An extension of custody under no legal provision is not only impermissible but could infringe a valuable fundamental right. It may be profitable to quote a line authored by  G.B. Pattnaik, J. in Uday Mohanlal Acharya v. State of Maharashtra23:

“Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution of India.”

However, as there is no legal provision in regard to this subject, it would suffice to say that the subject-matter falls under “grey areas” of Article 21 of the Constitution. It is therefore necessary for the authorities concerned to address this issue and take a positive step in this regard.


*Advocate, Bombay High Court.

1 Code of Criminal Procedure, 1973.

2(1993) 2 SCC 16, 23.

3 Section 57 CrPC. http://www.scconline.com/DocumentLink/hCZT8v3u.

4http://www.scconline.com/DocumentLink/0oDm9d53.

5http://www.scconline.com/DocumentLink/zXLseNDD.

6(2013) 3 SCC 77.

7(2014) 3 SCC 306.

8http://www.scconline.com/DocumentLink/7t43wBu8.

9http://www.scconline.com/DocumentLink/4biCv82u.

10Dinesh Dalmia v. CBI, (2007) 8 SCC 770 and Nazma Khatun v. State of West Bengal, 2019 SCC OnLine Cal    9102.

11http://www.scconline.com/DocumentLink/47bUoZz4.

12http://www.scconline.com/DocumentLink/zo935L02.

13http://www.scconline.com/DocumentLink/kvZ11hFM.

142006 SCC OnLine Del 704.

15Nitin Nagpal v. State, 2006 SCC OnLine Del 704.

16 2020 SCC OnLine Bom 11655.

17(2013) 3 SCC 77.

18(1994) 5 SCC 410.

19(2013) 3 SCC 77.

20(1994) 5 SCC 410.

21Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338.

22 S. 482 CrPC.

23(2001) 5 SCC 453.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr Dhananjaya Y Chandrachud and MR Shah, JJ., while addressing a matter expressed that,

The administration of criminal justice is not a private matter between the complainant and the accused but implicates wider interests of the State in preserving law and order as well as a societal interest in the sanctity of the criminal justice administration.

Judges speak through their judgments and orders. The written text is capable of being assailed. The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable. Judges, as much as public officials over whose conduct they preside, are accountable for their actions.

Background

 Instant appeal arose from Gujarat High Court’s Judgment.

Appellant and the first respondent had entered into a partnership deed under which a firm was constituted. Share of the first respondent in the profit/loss was alleged to be 55% while the share of the appellant – 45%.

Further, in the year 2017, a document styled as “sammati-lekh” was allegedly entered into by the appellant consenting to the execution of a sale deed in favour of a third party and the appellant agreed not to make any claim in the amount of Rs 3.89 crores from his capital investment. The appellant also agreed to relinquish a certain parcel of land belonging to the firm.

Anshin H Desai, Senior Counsel on behalf of the appellant submitted that:

(i) An FIR was lodged on 6 December 2020 containing serious allegations involving:

  1. Interpolation of the deed of relinquishment executed by the appellant with the consequence that whereas the interest in only one property at Akota was relinquished, several additional properties have been included and the nature of the interpolation would be obvious on a bare perusal of the documents which have been annexed to the paper book;
  2. The deed of dissolution of partnership is purported to have been executed on a day when the appellant was not present in India but was traveling to Dubai;

(ii)  The FIR has been registered on the basis of the above allegations implicating the commission of offences punishable under Sections 405, 420, 465, 467, 468 and 471 of the Penal Code;

(iii)  On the representation made by the first respondent, successive Memorandum of Understandings (“MoU” or “MoUs”) were entered into between the appellant and the first respondent; and

(iv)  Pursuant to the settlement, the cheques which were issued by the first respondent have been dishonoured and the title to the lands which were purported to be transferred to the appellant is under a cloud and is not marketable.

Bench in view of the consistent position of the Supreme Court, opined that the High Court was not justified in issuing a direction restraining the arrest of the first respondent till the next date of listing without reasons.

Court stated that the procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular.

Oral observations in court are in the course of judicial discourse. The text of a written order is what is binding and enforceable. Issuing oral directions (presumably to the APP) restraining arrest, does not form a part of the judicial record and must be eschewed.

Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations.

Further, the Bench noted that the Single Judge by an impugned order had issued an ad interim protection against arrest till the next date of listing. The reasons recorded were as follows:

  • Proceedings are pending between the parties;
  • Both of them have set the criminal machinery in action.

Having recorded the above, the Single Judge had granted a stay of arrest “to strike” a balance between both the parties while observing that the investigation may proceed. To this, the Court expressed that how this would strike a balance between both the parties was unclear from the reasons adduced.

The formulation of reasons in a judicial order provides the backbone of public confidence in the sanctity of the judicial process. While directing that the proceedings are to be listed on a future date, the High Court is undoubtedly not expected to deliver a detailed judgment elaborating upon reasons why a stay of arrest has been granted.

In the recent judgment in Neeharika Infrastructure Pvt Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315, this Court through one of us (Justice MR Shah) formulated the principles which have to be borne in mind by the High Court, when its intervention is sought under Section 482 of the CrPC to quash an FIR.

Supreme Court observed that while there may be some cases where the initiation of the criminal proceedings may be an abuse of law, it is in cases of an exceptional nature, where it is found that absence of interference would result in a miscarriage of justice, that the Court may exercise its jurisdiction under Section 482 of the CrPC and Article 226 of the Constitution.

Adding to the above, Court emphasized that the impugned order of the High Court cannot be sustained on the touchstone of the principles which have been consistently laid down by Supreme Court and reiterated in the above decision.

High Court was moved for the grant of ad-interim relief in a petition for quashing the FIR. The considerations which ought to weigh in whether or not to exercise the jurisdiction to quash must be present in the mind of the Judge while determining whether an interim order should be made.

In view of the above discussion, appeal was allowed and the impugned order was set aside. [Salimbhai Hamidbhai Memon v. Niteshkumar Maganbhai Patel, 2021 SCC OnLine SC 647, decided on 31-08-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. has held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, he/she is not required to be produced in custody. While remarking that if arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person, the Supreme Court observed:

“The word ‘custody’ appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.”

Facts and Appeal

The appellant was sought to be roped in an FIR which was registered seven years ago. The appellant was a supplier of stones to U.P. Rajya Nirman Ltd., and was booked under Section 409 (Criminal breach of trust) and Section 120-B (Punishment for criminal conspiracy) of the Penal Code, 1860. The appellant had already joined the investigation and the chargesheet was ready to be filed. An arrest memo was issued against him. The trial court took a view that unless the person is taken into custody, the chargesheet will not be taken on record in view of Section 170 (Cases to be sent to Magistrate, when evidence is sufficient) of the Criminal Procedure Code.

The appellant had filed an anticipatory bail application before the Allahabad High Court, which was rejected. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations

The short issue before the Court was whether the anticipatory bail application of the appellant ought to have been allowed.

The Supreme Court gave its imprimatur to judicial opinion in several decisions of the Delhi High Court and Gujarat High Court where it had been observed on consideration of Section 170 CrPC that it does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the chargesheet.

The Court noted that it had in fact come across cases where the accused cooperated with the investigation throughout and yet on the chargesheet being filed, non-bailable warrants were issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. The Court said that it failed to appreciate why there should be a compulsion of the officer to arrest the accused.

Following the dictum in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, the Court reiterated that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. It was observed:

“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.”

The Court was faced with a situation where the trial court was insisting on arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of provisions of Section 170 CrPC. The Court considered such a course misplaced and contrary to the very intent of Section 170.

Decision

In the instant case, when the appellant had joined the investigation; investigation was complete, and he was roped in after seven years of registration of FIR, the Court was of the view that there was no reason why at this stage he must be arrested before chargesheet is taken on record. Accordingly, the appeal was allowed and the impugned order of the Allahabad High Court was set aside. [Siddharth v. State of U.P., 2021 SCC OnLine SC 615, decided on 16-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the Gujarat High Court had stayed the arrest a person accused for offences under sections 376(2)(F), 376(2)(N), 377, 354(A), 354(D), 503, 506(1) and 509 of IPC and sections 66(E) and 67(A) of the Information Technology Act, 2000, the bench of BR Gavai and Krishna Murari, JJ has remitted the matter to the High Court and has asked to record the reasons in support of its order.

The High Court had, while issuing notice on the application for anticipatory bail, directed that the applicant shall not be arrested in the meanwhile.

Stressing upon the need for a reasoned order, the Court said,

“In such serious matter, when the High Court exercised its power of granting ad interim protection from arrest to the respondent no.2 herein, the least that is expected by the High Court is to record some reasons as to why it chooses to exercise its extra-ordinary jurisdiction. From the perusal of the impugned order, it could clearly be seen, that no reason even for namesake has been recorded in the impugned order.”

[Sorathia Bindi v. State of Gujarat, 2021 SCC OnLine SC 419, order dated 01.06.2021]

Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., allowed a bail application of the applicant who was charged for offences under sections 420,467,468,471,472,474 read with section 120B of Penal Code, 1860. Investigating agency in the case was the Economic Offences Wing, Bhopal (EOW).

The complainant along with others had registered the FIR against the applicant and other co-accused persons. The property in question was a piece of land admeasuring 93.37 acres, the owner died leaving behind seven legal heirs. In the FIR it was alleged that t Mohammad Sharif had executed the power of attorney dated 17-01-1989 without the knowledge of the 6 legal heirs and altered the remaining paragraphs of the power of attorney and thereby committed forgery. It was also alleged that Mohammad Sharif, in connivance with other accused persons, executed various sale deeds in favour of his family members and friends one of them being the applicant and she was sought to be arrested that day for this alleged offence that was committed thirty-one years ago.

Observation and Analysis:

Case after case this court has observed that the District Judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses.

The Court shared figures with regard to pendency of bail applications before the three benches of the High Court and the number of Criminal Appeals that have been withdrawn by the appellants (still undergoing their sentence and who have not got the benefit of suspension of sentence), number of criminal appeals withdrawn from the High Court in the year 2020. The Court pointed out that huge burden of bail matters that has been shifted to the High Court, but the District Judiciary can hardly be held responsible because of professional hardships they may have to face, if they indeed start deciding bail applications applying the principle of “Bail and not Jail”.

The Court drew the attention of District Judiciary to the overcrowding of jails in the State. The Court discussed the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260 where the Supreme Court had extensively discussed the power of the police to affect an arrest. The Court further in full detail discussed the recent judgment of the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 where the Court had scathingly indicted the police for still bearing a colonial mindset and disdain for the liberty of the citizen.

The Court passed certain directions in order to ensure that the directions passed by the Supreme Court in Arnesh Kumar’s case were scrupulously implemented and followed by the police and the Judicial Magistrates in Madhya Pradesh:

 Directions to the Police

  1. where for an offence, the maximum imprisonment provided is up to 7 years, the accused shall not be arrested by the police as an ordinary course of action. Unless it is a special statute mandating such an arrest.
  2. Before effecting an arrest in such a case, the police would have to record its reasons that the arrest was essential to prevent such person from committing any further offence, or for a proper investigation of the case, or to prevent the accused from causing the disappearance of evidence or on the basis of credible apprehension that the accused would tamper with evidence or prevent a witness from disclosing such facts to the court or to the police which thereby necessitates the arrest of the accused.
  3. The State Police is directed to format and prepare a check list of pre-conditions fulfilled by the police under section 41(1)(b)(ii) of the Cr.P.C, while arresting an accused for offences bearing a maximum punishment up to 7 years. It is mandatory to supply a copy of the check list along with the remand application, to the Magistrate authorised to further remand the accused to police or judicial custody.
  4. Where decision is taken not to arrest the accused, the police shall forward an intimation to the Magistrate within two weeks of the registration of the FIR. This period may be extended by the Superintendent of Police of the district concerned with reasons to be recorded in writing.
  5. Where interrogation of the accused is required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C be served on the accused within two weeks from the date of registration of the FIR which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
  6. Where the police does not arrest the accused and upon notice u/s. 41A or 160 Cr.P.C, the accused appears before the police and assists the police in the course of investigation, in such a situation, the police are not to arrest the accused unless, there exists compelling reasons which must be recorded, as given in paragraph 31.2.
  7. If the police does not perform as required of them as hereinabove, it would constitute contempt of the order passed by this court in addition to such other action, which may be taken against the erring officer on the administrative side.

Directions to the Judicial Magistrates:

  1. The Magistrate, while exercising powers of remand, shall ascertain if the arrest effected by the police satisfies the requirements of section 41 of the CRPC as provided in paragraph 11.2 of Arnesh Kumar’s case (see paragraph 17 supra).
  2. The Magistrate shall ascertain the availability of the check list as ordered by the Supreme Court in paragraph 11.3 of Arnesh Kumar’s case.
  3. If there is non-compliance of paragraph 11.2 and/or 11.3 of Arnesh Kumar’s case, the Magistrate shall not authorise the further detention of the accused and shall release forthwith as the arrest itself is unlawful and therefore, his detention would also be rendered unlawful on account of the police not having fulfilled the requirements of section 41 of CRPC.
  4. It is mandatory for the Magistrate authorising detention to record his independent satisfaction and also ensure in his order of remand that his satisfaction for further remand of the accused stands satisfied in compliance of paragraph 11.4 of Arnesh Kumar’s judgement.
  5. The Magistrate shall also satisfy himself whether specific reasons have been recorded for the arrest of the accused and whether those reasons are relevant, raising a reasonable conclusion that one of the conditions for further detention of the accused as an under trial is satisfied.
  6. Failure on the part of the Magistrate to perform as directed hereinabove, my see the initiation of proceedings against such Magistrate on the administrative side.

While considering an application for bail, the following may be kept in mind;

  1. Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?
  2. Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders?
  3. Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?
  4. Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?
  5. Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?
  6. Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail?

The Court allowed the bail application and requested the office to circulate the directions to all the districts and disseminate to the lowest functionary, the directions given by this Court.

[Zarina Begum v. State of M.P., 2021 SCC OnLine MP 961, decided on 13-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For the applicant: Mr Sankalp Kochar and Mr Aman Dawra

For the respondent: Mr A. Rajeshwar Rao

Case BriefsHigh Courts

 Gauhati High Court: The Bench of Ajit Borthakur, J., granted bail to the renowned Assamese writer, Sikha Sarma in connection with sedition case lodged against her for posting controversial facebook post regarding death of 22 CrPF jawans in an anti-naxal operation.

Factual Matrix of the Case

An F.I.R. has been lodged against the petitioner alleging that her facebook post posted on 05.04.2021 showed disrespect to the martyrs of the Nation. It was also alleged that the accused petitioner in her post maligned and disregarded the sacrifice of the martyrs by urging ‘Media’ not to generate public sentiments in their favour and not to term them as ‘Swahids’ as they were drawing salary for the services they were providing to the nation. It was further alleged that the defamatory post had also encountered public outrage in social media as on that day, the nation was mourning the martyrdom of 22 Jawans killed during anti-naxal operation in Chattisgarh on 03-04-2021 which also included two jawans from the State of Assam. The alleged post read as:

A person who draws salary for his service cannot be considered to be a martyr/swahid if he dies on duty. If it is so, then, an electrical worker who dies in an electric shock should also be considered as Swahid. News media do not make the public emotional.

The state was of the opinion that the accused not only showed disrespect to the martyrs of the nation but at the same time tried to invoke anti-social element that killing of our soldier is not a crime. Through the said post the accused tried to create hatred against the government in the execution of lawful duty. Further, her statement fermented disaffection towards the government of India and had potential to give rise to terrorist and anti-national forces.

Stand Taken by the Accused

The counsel for the petitioner, Mr. A.M. Borah argued that the accused had no malafide while posting the messages on her facebook account. She neither made any anti-national statement nor made the statement which brings or attempts to bring or create any hatred, enmity, contempt or disaffection towards the Government established by law. It was submitted by the petitioner that the word ‘Swahid/martyr’ is not defined in law or by any Government notifications etc., the accused petitioner committed no offence in law for exercising her freedom of expression on good faith. The reliance was placed by the petitioner on the judgments of the Supreme Court in Bilal Ahmed Kaloo v. State of A.P., 1997) 7 SCC 431 and  Common Cause v. Union of India, in Writ Petition (Civil) No. 683/2016.

Findings of the Court

Considering the abovementioned, the Bench opined that,

The accused petitioner prima facie expressed her personal views on the use of the term Swahid/martyr through social network in respect of 22 brave hearts/patriot soldiers including 2 such soldiers from the State of Assam, who laid their lives in action or killed on duty, which evoked widespread criticism in social networking platform.

Having considered the pros and cons of the allegations and evidence so far collected by the investigating officer and also, taking note of the apprehension of threat to health of the prisoners due to the ongoing second wave of novel Covid-19 pandemic, the Bench opined that  further continuation of detention of the accused petitioner, who is a woman and had been in judicial custody since 07-04-2021, may not be necessary in the interest of the ongoing investigation. Accordingly, the Court allowed the bail application of the petitioner and directed the authority concerned to release the petitioner on bail of Rs.30,000 with one surety of like amount.

[Sikha Sarma v. State of Assam, 2021 SCC OnLine Gau 1070, decided on 19-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Advocate for the Petitioner: A M Bora
Advocate for the Respondent: PP, Assam

Case BriefsSupreme Court

Supreme Court: In a major verdict, the bench of UU Lalit and KM Joseph*, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Upon being found guilty instead of sentencing the convict to a term in prison and in lieu of incarceration, as a condition of probation, the convict is compelled to confine himself to his place of residence. Such confinement is called House Arrest.

According to the data published by the National Crime Records Bureau (NCRB), there were a total number of 1350 prisons as of the year 2019, consisting of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails.

The occupancy rate of these prisons has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails. The figure of 4,78,600 prisoners as on 31st December, 2019 is the figure obviously after considering the number of prisoners who would have been inter alia bailed out. The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05 per cent of the total no. of prisoners. Delhi had the highest occupancy rate of 174.9 percent followed by Uttar Pradesh which came second with 167.9 percent. This means that in Delhi a prison which was meant to be occupied by 100 persons, was used for accommodating 174 persons.

Also, a very large sum (Rs. 6818.1 crore) was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer.

[Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, decided on 12.05.2021]


*Judgment by: Justice KM Joseph

For Appellant: Senior Advocates Kapil Sibal and Nitya Ramakrishnan, Advocate Shadan Farasat

For Respondent: Additional Solicitor General S.V. Raju

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J., dismissed the petition and approved the prayer for custodial interrogation.

The facts of the case are such that the daughter of the petitioner i.e. the victim left home for school and did not return. On him contacting school authorities he got to know that school was not open that day. He went to register a complaint at the police station under Section 363 Penal Code, 1860 i.e. IPC and investigation started. On investigation, it was found that her phone was being used on various locations and two numbers were contacted most frequently. The last location of the victim was Panipat after which the phone was switched off. The main fact that points to Nazim i.e the petitioner in the instant case being of significance is the fact that he spoke to Ibrahim who kept the victim with him as the petitioner was in Kerala. The victim was recovered and her statement was recorded after which a lot of additional facts and names came to the fore and thus Sections 366A, 370(4), 506 and 120B IPC were added. The Petitioner has approached this Court under Section 438 Criminal Procedure Code (i.e. Cr.P.C.), seeking anticipatory bail apprehending his arrest.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that there is no overt act on the part of the petitioner in leaving the house by the victim, rather victim had voluntarily left her house and when she reached Ambala, the petitioner had only helped her by providing shelter to her and victim was not sexually abused. It is also submitted that there is no past history of petitioner involving in the commission of the same nature or any other offence.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that petitioner is a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking. It was further submitted that accused are absconding and investigation is at the initial stage and non-cooperation of the accused persons, including petitioner, is hampering the investigation.

The Court observed that Police Officer/Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 CrPC. Arrest of an offender during investigation is duly prescribed in CrPC. Section 438 CrPC is an exception to general principle and at the time of exercising power under Section 438 CrPC, balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest accused amounts to interference in the investigation. It was also observed that nature, gravity and seriousness of offence, are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 CrPC.

The Court thus held “Considering entire facts and circumstances of the case and nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy, I find that prayer for custodial interrogation of the petitioner is justified and thus acceptable.” 

In view of the above, petition was dismissed.[Mohammad Nazim v. State of Himachal Pradesh, 2021 SCC OnLine HP 606, decided on 06-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Appalled with the arrest of Anuj Jain, the Interim Resolution Professional of the company managing the Yamuna Expressway, in connection with an accident that happened on the expressway that killed seven members of a family, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed his immediate release and has also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against Jain.

Jain was arrested in connection with an FIR that was filed after seven members of a family had died in an accident that happened on the highway. The victims were travelling towards Delhi when an overspeeding oil tanker jumped the divider and rammed into the victims’ vehicle The collision led to the spilling of oil from the tanker, resulting in a massive fire that engulfed both the vehicles.[1]

Shocked to the see the extreme step taken by UP Police to arrest the Interim Resolution Professional, Anuj Jain, working in that capacity pursuant to the order passed by the Court and entrusted with the functioning of the Company, the Court said,

“It is seen that the police official dealing with the case is not familiar with the provision of privilege of interim resolution appointed by the Court, in terms of Section 233 of the Insolvency and Bankruptcy Code.”

State of Uttar Pradesh had submitted before the Court that the Investigating Officer, Bijendra Singh, was of the view that the applicant may leave India at any time to avoid the prosecution and for securing his presence thought it necessary to arrest him from Mumbai.

Taking note of this submission, the Court said that it

“… will examine this aspect of the matter elaborately at appropriate time by treating this application as substantive writ petition filed by the applicant under Article 32 of the Constitution of India and to be numbered accordingly.”

In the meantime, the Court directed the release of Jain and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.

The Court asked the Registrar(Judl.) to personally intimate the office of the concerned Judge and Police Station Beta-II, District Greater Noida, Uttar Pradesh on telephone “to ensure immediate release of the applicant, Mr. Anuj Jain, without imposing any conditions”.

[Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 160, order dated 02.03.2021]


Appearances before the Court by:

For applicant: Senior Advocates Parag Tripathi and Sidharth Luthra

For State: Senior Advocate R.K. Raizada

[1] Yamuna Expressway management firm’s officer held after FIR following fatal accident by Abhishek Anand, India Today, Last Updated: March 2, 2021 13:06 IST

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., granted interim protection from arrest to former Union Minister Arun Shourie along with former disinvestment secretary Pradip Baijal issuing a stay notice and rebuked the CBI court for issuing arrest warrants against them along with 3 others in connection with the Laxmi Vilas Palace hotel case.

Background:

The case relates to the disinvestment of Laxmi Vilas Palace Hotel, which was an India Tourism Development Corp (ITDC) hotel and was sold to Bharat Hotels Ltd., a private entity when Mr Shourie was the disinvestment minister in the Atal Bihari Vajpayee-led National Democratic Alliance government at the Centre in 2001. Petitioner in the current revision petition is presently Managing Director of Bharat Hotels Ltd., and is wife of late Shri Lalit Suri, who was Managing Director of said company at the relevant time (year 2001) when the company had participated in the process of disinvestment of  Laxmi Vilas Hotel. The CBI had registered a case on 13-08-2014, that some unknown officers from the Department of Disinvestment, in connivance with a private hotelier during 1999-2002 renovated and then sold Laxmi Vilas Palace at a throwaway price and after investigation, it had concluded that no case was made out against any of the accused persons. On 16-04-2019, CBI had submitted its closure report before the special judge of CBI. However, on 13-08-2019, the special judge had rejected the closure report and asked CBI to further investigate the matter by a senior officer of the rank of deputy superintendent of police (DSP), the CBI Court on 16th September had ordered the registration of cases against to former Union Minister Arun Shourie, former disinvestment secretary Pradip Baijal, Ashish Guha, the managing director of Lazard India Ltd who was the financial adviser, valuer Kantilal Karamsey of Kantilal Karamsey & Company and Jyotsana Suri, director of Bharat Hotels Ltd. Again on 15 June 2020, CBI filed a supplementary final report before the special judge submitting that no criminality was found on part of any person and reiterated the request for closure of the case.

Contentions:

The Counsel for the petitioner in Jyotsana Suri Case, Mr. Harish Salve assisted by Harish Nadda submitted that the CBI Court had refused to accept the final closure report filed by the CBI but has also issued an arrest warrant to the petitioner and has gone ahead to attach the assets, land, building and hotel business of the said hotel. He further submitted that process was transparent and open bids were invited while fixing the reserve price at Rs 6.12 crores. It was submitted that the petitioner was the sole bidder and had offered a bid of Rs 7.52 Crores (25% above the reserve price) and was declared successful. He further contended that, there was no material with the CBI Court to come to the conclusion that the petitioner’s Company has defrauded the Central Government by Rs 244.36 Crores. He contended that the CBI Court was not legally justified in issuing warrant of arrest to the petitioner. Per contra, the Counsel for the respondent,  R.D. Rastogi assisted by B.P. Bohra submitted that the District Collector, Udaipur – the appointed receiver had taken charge of the property at 12.35 p.m. on 16-09-2020 itself, and submitted that staying the effect and operation of the order at this juncture, would amount to putting the clock back.

In Arun Shourie’s case, the counsel for the petitioner, Mr. Prashant Bhushan and  Pradeep Shah contended that the trial Court had committed an error holding that the prosecution sanction under Section 19 of the Prevention of Corruption Act was not required and that the High Court in Pradip Baijal’s case had already considered this argument and had granted interim order/protection to the petitioner. They further informed that the petitioner was a senior citizen, writer and editor, ex-minister and was suffering from various age-related issues.

Decision

The Court in the Jyotsana Suri’s case rebuked the CBI Court for issuing arrest warrants against the former Union minister and four others. The Court observed that,

 “Court below has not recorded any reason worth the name before resorting to the extreme mode of securing presence of an accused – issuing arrest warrant. The issuance of warrant of arrest becomes all the more serious, when the petitioner was not put to any notice of the pending proceedings.”

The Court further ordered that Mr Shourie and Mr Baijal shall not be arrested in pursuance of the arrest warrant issued by the Special Judge, CBI in the petitions filed by them individually. [Jyotsana Suri v. Union of India, S.B. Criminal Revision Petition No. 663 of 2020, decided on 22-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madhya Pradesh High Court: Shailendra Shukla, J., while addressing a anticipatory bail application, held that,

“…applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.”

The present anticipatory bail application was filed under Section 428 of Code of Criminal Procedure, 1973 as the applicant’s were apprehending their arrest for the offence punishable under Section 498-A Penal Code, 1860, Section 3/4 of Dowry Prohibition Act, 1961 and Section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Due to some dispute, complainant after her Nikah returned back to her parental house, further the complainant submitted that her husband on 29th March, 2020 pronounced ‘Talaq’ thrice on telephone, thereafter an FIR was lodged against him.

Counsel for objector and State both submitted that after the Nikah when the complainant got pregnant her mother-in-law started alleging that complainant got pregnant much earlier and the child doesn’t belong to her son along with this, she also started asking for money saying that complainant did not give enough dowry to the applicants.

Decision

Bench stated that the applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.

Further the Court noted that there was no physical cruelty , it appeared that early pregnancy became the cause of dispute and as per the complainant there was a telephonic call in which husband of the complainant sought termination of the marriage.

Bench found substance in the submission tat demand of dowry after pronouncing divorce was not possible.

Application was allowed and it was directed that in the event of arrest, applicants shall be released on bail. [Rafique Ahmed v. State of M.P., 2020 SCC OnLine MP 1521 , decided on 08-07-2020]