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]

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and Sanjiv Khanna, JJ, on Friday, granted protection to activist lawyer Prashant Bhushan from any coercive action in an FIR lodged against him at Rajkot in Gujarat for allegedly hurting religious sentiments of the Hindus. In the proceedings conducted through video conferencing, the Court issued notice to the Gujarat Police and listed Bhushan’s plea after two weeks.

“In the meantime, no coercive action be taken against the petitioner in First Information Report No. 11209052200180 lodged on 12th April 2020 under Sections 295A/505(1)(b), 34 and 120B of the IPC registered at the Police Station Bhaktinagar, Rajkot, Gujarat.

The FIR was lodged by former Army personnel Jaidev Rajnikant Joshi at Rajkot alleging that Bhushan hurt religious sentiments of Hindus by tweeting against re-telecast of the Ramayana and the Mahabharata serials on DD during the coronavirus lockdown in the country.

While granting interim relief and protection to Bhushan, the apex court said,

“anybody can watch anything on TV” and questioned as to how one can ask people not to watch a particular programme.”

Senior advocate Dushyant Dave, appearing for Bhushan, sought quashing of the FIR lodged against the activist lawyer and sought interim protection against any coercive measure for the time being. He said he was not on the issue of as to what people should watch on TV, but was arguing against registration of the FIR.

In his complaint, Joshi had accused Bhushan of using word ‘opium’ for Ramayana and Mahabharata in a tweet on March 28 which hurt the sentiments of many Hindu people.

Bhushan had tweeted

“As crores starve & walk hundreds of miles home due to forced lockdown, our heartless ministers celebrate consuming & feeding the opium of Ramayana & Mahabharata to the people.”

Bhushan had filed the plea on Thursday and it was listed a day after the bench.

[Prashant Bhushan v. Jaidev Rajnikant Joshi, Writ Petition(s)(Criminal) No(s). 131/2020, order dated 01.05.2020]

(With inputs from PTI)

Case BriefsCOVID 19High Courts

Kerala High Court: A Full Court comprising of S. Manikumar, C.J., and C.K. Abdul Rehim and C.T. Ravikumar, JJ. issued certain directions taking suo motu cognizance of the public announcement of imposing a total lockdown in the wake of COVID-19 outbreak resulting in immobilization of public at large.

Notably, on 24th March, the Prime Minister announced a complete lockdown throughout the country and consequently, the Ministry of Home Affairs issue guidelines on the measures to be taken by the Governments and departments for containment of COVID-19.

Directions issued by the High Court in exercise of powers under Articles 226 and 227 of the Constitution are delineated here:

(i) Interim orders granted by District Judiciary and Tribunals: All the interim orders passed by all the Courts/Tribunals upon which High Court exercises supervisory jurisdiction under Article 227, which are due to expire during the lock down period of 21 days, are extended by by one month from 25-3-2020.

Also, if any application is filed for extending/vacating an interim order and pending for orders in this Court, the interim orders will be extended for one month.  

(ii) Recovery proceedings under State laws: In all recovery matters, such as electricity, water, Abkari and other matters, Council of Ministers, Government of Kerala has already taken a decision that payment will be deferred upto 30-4-2020, and therefore, no recovery proceedings would be initiated or recovery proceedings already initiated would not be proceeded further until 30-4-2020.

(iii) Recovery proceedings by Government of India and Public Sector Undertakings: Taking note of the submission of the Government of India before the Supreme Court that a proper mechanism will be evolved, in exercise of the powers under Articles 226 and 227 of the Constitution, the High Court also deemed it fit to state that until such time it hoped that no action would be taken.

(iv) Bail/Anticipatory bail in criminal matters already provided and due to expire during the lockdown period: Orders of bail or anticipatory bail, restricted for a limited period, which may expire in the lock down period, have to be extended. Therefore, the interim orders in such matters will stand extended for one month from 25-3-2020.

(v) Contagion of COVID-19 in prisons: Directions issued by the Supreme Court in its order dated 23-3-2020 passed in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] were reiterated. Notification dated 25-3-2020 [GO(Rt) No. 970/2020/HOME] issued by the Government of Kerala taken note of, which inter alia states ?

1. A High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) Additional Chief Secretary (Home & Vigilance), and (iii) Director General of Prison(s), is constituted to determine which class of prisoners can be released on parole or on interim bail.

2. Physical presence of all the undertrial prisoners before the Courts shall be stopped forthwith and recourse to video conferencing for all purposes.

3. The transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

4. The Director General of Prisons & Correctional Services shall develop Prison specific readiness and response plans in consultation with medical experts.

5. The Director General of Prisons and Correctional Services is empowered to grant Ordinary leave to eligible prisoners in a single spell of 60 days, subject to all other conditions of leaves, in relaxation to Rule 397(b) of Kerala Prisons and Correctional Services (Management) Rules, 2014 to reduce the number of prisoners in prisons.

6. Due to the lack of public transport system as the prisoners cannot report back in prison after the expiry of their period of leave in time, such overstayal period upto April 15 shall be considered as bail (shall not be considered as sentence undergone), provided that such prisoners shall report to the police station nearby and the Station House Officer shall report the position to prison authorities concerned.

(vi) Bail applications of convicts and undertrial prisoners: The High Court, on the administrative side, had taken a decision to hear applications seeking bail/anticipatory bails/suspension of sentence, as the case may be, and posted some of the cases for hearing on 26-3-2020. Now, the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] has issued directions to the State Governments/Union Territories to constitute a High Powered Committee in respect of bail matters, which has already been done. Hence, the High Court deemed it fit that those applications need not be taken up for hearing and it is left to the High Powered Committee to decide.

(vii) Applications pending for anticipatory bail: Right of personal liberty guaranteed under Article 21 of the Constitution should not, at any rate, be infringed by arresting an accused, except in matters where arrest is inevitable. However, the State is at liberty to take appropriate decision in respect of heinous/serious offences and in rest of the cases, State may act accordingly.  

(viii) Events of arrest: In the event of any arrest, the Constitutional obligation under Article 20(2) shall be followed in letter and spirit. Over-crowding in prisons is one of the issues taken up by the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020]. Therefore, Magistrates/Judges before whom the accused is produced, depending upon the nature of offence, shall consider as to whether judicial/police custody is required or not. Needless to state that, bail is the rule and jail is an exception. It was made clear that the above said directions stand excluded to subjects relating public order/law and order and any action taken by the State Government to combat the outbreak of COVID-19 and actions taken thereof.

(ix) No coercive action by Local Self Government Institutions: It is sincerely expected that due to the outbreak of COVID-19, State Government, LSG Institutions, Government of India, and Public Sector Undertakings owned and controlled by the State/Central Governments that no coercive action be taken since there is no opportunity to the persons to approach the Courts at present. [Suo motu Writ Petition – COVID-19 – taken up by the High Court,  2020 SCC OnLine Ker 1229, decided on 25-3-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J., addressed a bail application for release of the petitioner arrested under Sections 420, 467, 468, 471 and 120-B of the penal Code, 1860.

The present application for bail states that the petitioner is innocent and has been falsely implicated. It has also been stated that he is neither in a position to tamper with the evidence nor in a position to flee from justice.

According to the police report, prosecution story which had led to the filing of FIR under the above-mentioned Sections was that,

“Promila Devi, Pradhan, Gram Panchayat Bhadarnu/complainant, got registered a complaint against the petitioner, alleging therein that the Department of NSFDC had imparted training for fruit processing to the women belonging to the Scheduled Caste. As per the said training programme, a sum of Rs. 5,000 towards Kaushal Vikaas Bhatta, per women, was to be paid to them; however, only Rs. 2,000 per women by way of Cheque was paid to them. As per the allegations,  Him. Con. Ltd. was found to have shown another training programme having been organized at Karsog, however, which as a matter of fact, was not at all organized. Consequently, FIR under Sections 420, 467, 468, 471 and 120-B IPC came to be registered against the petitioner.”

Additional Advocate Generals, Shiv Pal Manhans and P.K. Bhatti, contended that the petitioner was found involved in non-cognizable offences and in the case at this stage he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice.

High Court on noting the facts and circumstances of the case stated that, petitioner being the resident of the place and joining the investigation is neither in a position to tamper with the prosecution nor to flee from justice.

Thus, the Court held that the present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of arrest, is required to be exercised in his favour. Bail granted subject to conditions. [Bhumi Nand v. State of H.P., 2019 SCC OnLine HP 2167, decided on 16-12-2019]

Case BriefsSupreme Court

Supreme Court: Holding that the Court should not have encroached upon the field reserved for the legislature, the 3-judge bench has partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018. The 3-jduge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that some portions of the said verdict were against the concept of protective discrimination in favour of down­trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.

The guidelines laid down in the March, 2018 verdict were:

(i) Proceedings in the present case are clear abuse of process of court and are quashed.

(ii) there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.

(iii) arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

(iv) to avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

(v) any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.

Challenging the said verdict, the Union of India argued that Section 18 of the Act of 1989 has been enacted to take care of an inherent deterrence and to instil a sense of protection amongst member of Scheduled Castes and Scheduled Tribes. It submitted,

“any dilution of the same would shake the very objective of the mechanism to prevent the offences of atrocities. The directions issued would cause a miscarriage of justice even in deserving cases.  With a view to object apprehended misuse of the law, no such direction can be issued.”

Accepting the contention, the Court held that the guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221.

“The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above.”

It further said that directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment made in the Rules in the year 2016, a charge sheet has to be filed to enable timely commencement of the prosecution. The directions issued are likely to delay the timely scheme framed under the Act/Rules.

Considering the plight of the members of the Scheduled Castes and Scheduled Tribes, the Court said that the SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. It said,

“if we cannot provide them protective discrimination beneficial to them, we cannot place them at all at a disadvantageous position that may be causing injury to them by widening inequality and against the very spirit of our Constitution. It would be against the basic human dignity to treat all of them as a liar or as a crook person and cannot look at every complaint by such complainant with a doubt.”

The Court also noticed that there is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. It said that the members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor.

“There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under section 482 of the Cr.PC.”

The Court, hence, held,

“we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes.”

[Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, decided on 01.10.2019]

Hot Off The PressNews

Supreme Court: Former Indian skipper Mahendra Singh Dhoni on Tuesday approached the Court seeking its direction to Amrapali  group for payment of his pending dues allegedly amounting to Rs 40 crore towards his services to the real-estate company.

His lawyer argued:

“The embattled real estate group owes Rs 40 crore to the former cricket captain over his services to the group while acting as a brand ambassador,”

In the case relating to non-delivery of around 42,000 flats to homebuyers by the beleaguered Amrapali Group, the Court has allowed Delhi Police to arrest Amrapali Group chairman and managing director Anil Sharma in relation to a criminal complaint filed against him. The top court also said that the Economic Offence Wing (EOW) of Delhi Police can also arrest Amrapali directors Shiv Priya and Ajay Kumar in the case.


Also read:

Amrapali Group of Companies| 7 premises sealed; directors  in police custody till the ‘cataloguing’ of the documents

SC directs arrest of Amrapali Group CMD, Anil Sharma and two other directors

Hot Off The PressNews

Supreme Court: In the case relating to non-delivery of around 42,000 flats to homebuyers by the beleaguered Amrapali Group, the Court has allowed Delhi Police to arrest Amrapali Group chairman and managing director Anil Sharma in relation to a criminal complaint filed against him. The top court also said that the Economic Offence Wing (EOW) of Delhi Police can also arrest Amrapali directors Shiv Priya and Ajay Kumar in the case.

Ordering seizure of personal properties of Sharma and the other directors, the court also directed forensic auditors to complete their probe on divergence of homebuyers’ money by the Amrapali Group before March 22.

The bench of Arun Mishra and UU Lalit, JJ said:

“We had never stopped any agency from arresting the directors, who are presently housed at a hotel under the detention of UP police.”

In December, the Supreme Court had ordered seizure of assets of the company, asking as to why criminal proceedings should not be initiated. It even called the company the “worst kind of cheater in the world” and “a perfect liar” for not complying with its direction. It has already ordered seizure of the company’s 100-bed multi-speciality hospital, bank accounts, the building which houses its office, certain firms and a benami villa in Goa.

The next hearing in the case will be on March 26.

(Source: NDTV)

Legislation UpdatesStatutes/Bills/Ordinances

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 has been passed by the Parliament and notified on 19-09-2018, as signed by the President for promulgation. The ordinance is directed towards protection of married Muslim women and prohibition of pronouncement of talaq by their husbands and any other matter incidental thereto. This ordinance has been promulgated with a view that despite the holding in the matter of Shayara Bano v. UOI, (2017) 9 SCC 1 where triple talaq was declared unconstitutional the practice still continued.

 

Highlights of the Ordinance:

  • Definition of talaqSection 2(b) of the ordinance definestalaqas talaq-e-biddat or talaq of similar form, pronounced by a Muslim husband having effect of instantaneous and irrevocable divorce.
  • Talaq to be void and illegal — This ordinance declares pronouncement of talaq by Muslim husband to be void and illegal and penalizes the commission of same with imprisonment which may extend to 3 years and fine under Section 3 and Section 4 respectively.
  • Allowance — According to the ordinance under Section 5 a Muslim husband who pronounces triple talaq to his wife will be liable to pay to her and dependent children subsistence allowance as may be determined by Magistrate.
  • Custody of Minor Children — In case a Muslim husband pronounces triple talaq to his Muslim wife the custody of their minor children will be with the married Muslim women i.e. his wife provided under Section 6.
  • Cognizable Offence — The offence under this ordinance has been declared as cognizable under Section 7(a).
  • Who can report? — Any commission of offence under this act can be informed to the officer in charge of a police station directly by the married Muslim woman on whom the talaq was pronounced and by any other person related to her by blood or marriage.
  • Compoundable Offence — According to Section 7(b) offence of pronouncing talaq is stated to be compoundable at the instance of married Muslim woman on whom talaq was pronounced but only with the permission of Magistrate.
  • Grant of Bail— Under Section 7(c) bail can be granted only when the Magistrate is satisfied after perusing the application of the accused and hearing married Muslim women upon whom the talaq was pronounced that reasonable ground for granting bail exists.
Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., while disposing of a writ petition related to Section 498-A IPC, modified the directions concerning registration of FIR, arrest and bail under the said section as given in a recent judgment in Rajesh Sharma v. State of U.P.2017 SCC OnLine SC 821.

The writ petition, under Article 32 of the Constitution, was filed seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels. That apart, prayer was made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC. It is worthy to note here that during the pendency of the instant petition, the judgment was pronounced in Rajesh Sharma. During the course of proceedings, learned Amicus Curiae submitted that the said decision requires reconsideration.

The Supreme Court, in order to adjudicate on the petition, perused scheme and object of Section 498-A as well as guidelines laid down in D.K. Basu v. State of W.B., (1997) 1 SCC 416 and also Lalita Kumari v. State of U.P, (2014) 2 SCC 1 wherein the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. On perusal of directions in Rajesh Sharma, the Court found that it directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, in Court’s view, were beyond the Code and the same did not really flow from any provision of the Code. It was stated that there could be no denial that there has to be just, fair and reasonable working of a provision. The legislature, in its wisdom, has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. In the aforesaid analysis, the Court declared the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, it is appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar v. State of U.P., (1994) 4 SCC 260; D.K. Basu; Lalita Kumari and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. It was thought appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by the Court relating to arrest. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole was not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the directions given by the Court. Direction No. 19(iii) was modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 CrPC and the High Court, keeping in view the law laid down in Gian Singh v. State of Punjab, (2012) 10 SCC 303 , shall dispose of the same. The petition was accordingly disposed of. [Social Action Forum for Manav Adhikar v. Union of India,2018 SCC OnLine SC 1501, decided on 14-09-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Ashis Kumar Chakraborty, J., ordered a marine vessel to be arrested while deciding on the affidavit of arrest filed in an admiralty suit.

The plaintiff prayed for arrest of a marine vessel M.T. Aquarius, flying with Barbados flag, lying at Haldia Dock within the jurisdiction of Calcutta High Court. Plaintiff alleged to have a maritime claim against the defendant vessel of Rs 28,06,31,328 on account of her failure to deliver the cargo of gas oil to the plaintiff at the port of Mukalla, Yemen. It was the case of the plaintiff that the defendant vessel, instead of delivering the said gas oil cargo at Makalla, delivered the same to a third party at Hamriyah, UAE.

The High Court, considering all the facts and circumstances, was of the view that the plaintiff had made a prima facie case and balance of convenience also lie in its favour. The Court also found favour with the submission of the plaintiff that its claim gave rise to a maritime claim under Section 4(1)(f) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. It was also noted that the defendant’s vessel was likely to leave Indian Territorial Waters during the next few days. Accordingly, the Court ordered arrest of the defendant vessel, M.T. Aquarius, along with her tackle, hull, engine, equipments, apparels, furniture and all movables lying on board. However, it was clarified that on payment of the amount stated hereinabove as security with the Registrar of the Court, the order of arrest shall stand vacated. The application was made returnable on a further date.  [Quick Time General Trading LLC v. Owners and Parties Interested in the Vessel M.T. Aquarius,2018 SCC OnLine Cal 5363, dated 10-08-2018]

Hot Off The PressNews

Supreme Court:  Attorney General KK Venugopal, seeking stay on the Supreme Court order on the SC/ST Act, said that the Court cannot make rules or guidelines which go against the law passed by the legislature. He said that  the SC/ST verdict had resulted in loss of life and hence, the matter should be referred to a larger bench.

The Bench of AK Goel and UU Lalit, JJ, however, said that it was 100 per cent in favour of protecting the rights of these communities and punishing those guilty of atrocities against them. It said that while deciding on the verdict on the SC/ST Act, it had considered every aspect and all the judgments before reaching a conclusion.

The Centre had moved the Supreme Court on April 2 seeking review of its judgement by which safeguards were put on the provisions for immediate arrest under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989. Centre said that the verdict has “diluted” the stringent provisions of the Act, resulting in great damage to the country by causing anger and a sense of disharmony among the people.

Several states were rocked by wide spread violence and clashes following a ‘Bharat Bandh’ call given by several SC/ST organisations protesting the top court’s March 20 order, that claimed eight lives. While hearing the Centre’s review petition on April 3, the Court had asserted that “no provisions of SC/ST Act have been diluted” and clarified that additional safeguards had been put in place “to protect the fundamental rights” of innocents. The Court said:

“A perusal of the order of this Court makes it clear that there is no bar to compensation or other immediate relief being given to the victim member of the SC/ST as per the provisions noted above without any delay whatsoever. There is also no bar to registration of F.I.R. under any provision of the penal code or any other law and the offences under the SC/ST Act being added later, if necessary. Thus, there is no dilution of any provision of the SC/ST Act relating to compensation, trial, punishment or otherwise.”

The Court has refused to stay the March 20 verdict till it decided the Centre’s review petition.

Source: PTI

Case BriefsHigh Courts

Madhya Pradesh High Court: While disposing off the present appeal wherein the appellant was charged under Section 3(2)(va) and 3(1)(d) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Bench of J.P. Gupta, J., reiterated the recent Supreme Court decision in Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 323, holding that a police officer, who intends to arrest a person, who is not a government servant and is accused of the offence punishable under the 1989 Act, such arrest should be made with prior approval of the S.S.P concerned, only after recording the reasons of arrest in writing.

As per the facts, the appellant was the owner of the bus on which the complainant was working as a Driver. It was alleged that when the complainant demanded arrears of salary, he was abused publicly by referring to his caste. The Complainant belongs to the Scheduled Tribe community. The appellant’s counsel Harshwardhan Singh Rajput refuted the allegations and prayed before the Court to issue directions in sync with the guidelines laid down in the aforementioned Supreme Court judgment.

On perusal of the facts, the Court observed that there is no evidence to show that the FIR against the appellant was filed with malafide intentions, therefore the appellant is not entitled to get anticipatory bail. The Court however also noted that the nature of the offence is not very severe and prima facie, the appellant’s arrest is not warranted for the purpose of investigation and his presence may be secured during trial by directing him to appear before the Magistrate/Court concerned in case of filing of the charge-sheet. Furthermore the Court stated that an accused, who is not entitled to get the benefit of anticipatory bail, cannot be denied the protection available under the law with regard to unjustified and unwarranted arrest, as before arresting an accused, it is the duty of the police officer to examine and record the reasons of arrest in writing subject to scrutiny of the Magistrate/Court. [Ajeet Jain v. State of Madhya Pradesh,2018 SCC OnLine MP 327, decided on 04-04-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: An appeal was filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 before a Single Judge Bench comprising of J.P. Gupta, J., wherein the appellant was granted anticipatory bail in a case registered under various provisions of IPC and the SC/ST Act, 1989.

The complainant belonged to the Scheduled Tribe community and worked as a driver of the bus owned by the appellant. It was alleged by the complainant that the appellant assaulted him and abused him by addressing his caste. The appellant was consequently booked under various provisions of SC/ST Act and was apprehending arrest in connection with the same. He applied for anticipatory bail before the Special Judge which was dismissed. Hence, this appeal under Section 14-A of the SC/ST Act.

While considering the instant appeal, the High Court referred to various decisions of the Supreme Court to observe that it is expected from a police officer, who intends to arrest a person, not being a government servant and is accused of the offence punishable under the Act of 1989, to arrest only with prior approval of the SSP concerned, and after recording the reasons of arrest in writing. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. Arrest and detention in police lock-up of a person can cause irreparable harm to the reputation and self-esteem of a person. Hence, arrest cannot be made in routine manner on a mere allegation of commission of an offence. It is expected from a police officer to act as a prudent man in the interest of protection of the constitutional rights of a citizen not to arrest a person without a reasonable satisfaction arrived after some investigation as to the genuineness and bonafides of a complaint and need of arrest and thereafter record genuine reasons showing that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided.

In the background of the aforesaid discussions, considering the facts and circumstances of the present case and the material available in the case diary, the Court was of the view that the nature of the offence was not very severe and prima facie, the appellant’s arrest was not warranted for the purpose of investigation. Hence, the appeal was allowed. [Ajeet Jain v. State of MP, Cr. A. No. 1757 of 2018, dated 04-04-2018]