Bail

Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed the application filed by the petitioner to free him from detention.

The petitioner filed a Habeas Corpus petition against the order of detention, passed by the Respondent 2 who is the District Magistrate Baramulla, in exercise of powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (“The Act of 1978”). It was submitted that the detaining authority had failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his release on bail in substantive offences. It was also submitted that such order was passed on the dictates of the sponsoring agency, i.e. the Officer who had prepared the police dossier and no attempt had been made by the Respondent 2 to scan and evaluate it before issuance of the order of detention. 

The Respondents submitted that the detaining authority had complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue did not file any representation against the order of detention. The detenue was involved in two different cases for the commission of offences punishable under the ULA(P) Act and the Ranbir Penal Code (RPC). 

The Court emphasized the issues that since the detenue was released on bail in the FIRs that formed the baseline of the order of the detention, therefore, an order of detention could have been passed under such circumstances or not. The Court relied on the law laid down by the Supreme Court in paragraph No. 24 of the judgment delivered in the case of Sama Aruna v. State of Telangana, “AIR 2017 SC 2662”:

“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: 

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 

The Court held that the detenue could not have been detained after taking recourse to the provisions of “The Act of 1974” when he was already on bail. While discussing the duty of the State to follow the law of the land so as to safeguard the rights of the citizens the Court exclaimed that:

“The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the orders of bail so granted by the competent Court(s). This single infraction knocked the bottom out of the contention raised by the State that the detenue can be detained preventatively when he was released on bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 08. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law.”

In view of the above-noted facts, the instant petition was allowed and the impugned order of detention of the petitioner stood to be quashed. [Shabir Ahmad Mir v. State of J&K, 2019 SCC OnLine J&K 882, decided on 05-11-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua, J. disposed of a petition seeking ad-interim and regular bail due to inappropriate charges put forth in the First Information Report.

In the present case, the petitioner aged 18 years was arrested and charged under Sections 342, 323, 500, 504, 506-B read with Section 34 of the Penal Code, 1860. The petitioner was also granted bail by the 1st Class Judicial Magistrate vide order dated 26-09-2019. Later on, it came to the notice of the petitioner that Section 3(1)(e)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, had also been added in the FIR in question. Thereafter, the bail application was moved and interim protection was granted to the petitioner.

The Additional Advocate General, Anil Jaswal, representing the respondent-State and submitted a status report regarding the additional charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

High Court upon perusal of the status report stated that the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was added on 01-10-2019 whereas the charges under the Penal Code were in the FIR dated 24-09-2019. The Bench also took note of the fact that the status report does not disclose the basis for incorporating the particular section in the FIR. Thereafter the court stated that the petitioner was falsely implicated in the case and since he had been already granted bail there were no necessity for sending an eighteen-year-old student to judicial custody in such circumstances. [Abhishek Chaudhary v. State of Himachal Pradesh, 2019 SCC OnLine HP 1808, decided on 01-11-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. disposed of an application for bail relating to offences under Narcotic Drugs and Psychotropic Substances Act, 1985.

In the present case, the petitioner was found in possession of 495 cannabis near the Govt. Boys Higher Secondary School, Neyyattinkara, Thiruvananthapuram for its sale among School and College students. Thereafter, a case was registered by the police under Sections 20(b)(ii)(A) and 29(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’) and section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and has been under detention since then.

The counsel representing the petitioner, Sasthamangalam S Ajithkumar, submitted that the allegations are false and baseless and further that the offences alleged as per the NDPS Act are bailable and further that the only non-bailable offence alleged in this case is the one as per Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and that the prosecution does not even have a case that the accused persons have in fact sold any such contraband to the school or college children. 

The public prosecutor for the State, Amjad Ali, opposed the plea for bail since there is a possibility that the petitioner shall commit the same offences again. 

The High Court upon perusal of facts and circumstances of the case, more particularly taking into account, the fact that the only non-bailable offence, in this case, is the one as per Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and also taking into account, the fact that the petitioner has already suffered detention since 04-10-2019, disposed of the application and granted bail to the petitioner. The Court, however, stated that if the petitioner commits the further offence of a similar nature during the time of bail then the Prosecuting Agency or the Investigating Officer concerned shall immediately conduct a proper enquiry and file a report to the Jurisdictional Magistrates Court. [Joyal S. Johny v. State of Kerala, 2019 SCC OnLine Ker 3712, decided on 31-10-2019] 

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. allowed bail application of the a person accused of the offence of abusing a member of SC-ST community in public view. 

An FIR was filed against the petitioners under Sections 504 and 506 of the Penal Code, 1860 and Section 3 (1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and they were taken into custody. Aggrieved thereby, the instant bail petition was filed.

Sanjeev Sood, learned Additional Advocate General for respondents informed the court that the complainant after filing the FIR did not cooperate with the further investigation. The investigating agency after several attempts to contact the complainant concluded the investigation.

The Court allowed the instant petition for grant of bail placing reliance on Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 which held that a person is believed to be innocent until found guilty. It was observed that if the guilt of a person is yet to be proved then he cannot be imprisoned for an indefinite period. The court also referred to Sanjay Chandra v. CBI, (2012) 1 SCC 40 which held that the basic aim of bail is to ensure the presence of the accused in the trial.

The Court relied on the principles for the deciding a bail petition by placing reliance on Prashant Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 and opined that the present case was fit for grant of bail. Thus, the petition for bail was allowed. [Jagdish Sharma v. State of Himachal Pradesh, 2019 SCC OnLine HP 1403, decided on 30-08-2019] 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of R Banumathi, AS Bopanna and Hrishikesh Roy, JJ has granted bail to former Finance Minister and senior Congress leader P Chidambaram in connection with the INX Media case registered by the Central Bureau of Investigation (CBI).

Chidambaram is currently in the custody of Enforcement Directorate (ED) till October 24 in the INX Media money laundering case. Chidambaram, who is currently in judicial custody in Tihar jail, had filed a Special Leave Petition (SLP) in the apex court days after the High Court dismissed his bail plea contending that he might influence the witnesses in the case.

When the Solicitor General  Tushar Mehta submitted before the Court that “flight risk” of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country, the Court said that the same cannot, be put in a straight-jacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, such consideration including as to “flight risk” is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved.

The Court noticed that Chidambaram was neither a “flight risk” nor there was possibility of his abscondence and said that Chidambaram

“being the Member of Parliament and a Senior Member of the Bar has strong roots in society and his passport having been surrendered and “look out notice” issued against him, there is no likelihood of his fleeing away from the country or his abscondence from the trial.”

On the allegation of possibility of influencing the witnesses, the Court noticed,

“Till the date, there has been no allegation regarding influencing of any witness by the appellant or his men directly or indirectly. In the number of remand applications, there was no whisper that any material witness has been approached not to disclose information about the appellant and his son. It appears that only at the time of opposing the bail and in the counter affidavit filed by the CBI before the High Court, the averments were made.”

The Court observed that CBI has no direct evidence against Chidambaram regarding the allegation of appellant directly or indirectly influencing the witnesses. It further noticed that the conclusion of the learned Single Judge of Delhi High Court “…that it cannot be ruled out that the petitioner will not influence the witnesses directly or indirectly……” is not substantiated by any materials and is only a generalised apprehension and appears to be speculative. It, hence, held,

“Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed.”

Setting aside the Delhi High Court judgment, the Court, hence, directed that Chidambaram be released on bail if not required in another case subject to the condition of his executing bail bonds for a sum of Rs.1,00,000/- with two sureties of like sum to the satisfaction of the Special CBI Judge. The Court further directed,

“The passport if already not deposited, shall be deposited with the Special Court and Chidambaram shall not leave the country without leave of the Special Court and subject to the order that may be passed by the Special Judge from time to time. He shall make himself available for interrogation as and when required.”

[P. Chidambaram v. Central Bureau of Investigation, 2019 SCC OnLine SC 1380, decided on 22.10.2019\

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. allowed the bail petition of the appellants who were charged for intentional insult to provoke breach of peace and criminal intimidation with threat to cause death or grievous hurt under Sections 504 and 506 of the Penal Code, 1860 and Section 3(1)(s) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The learned Additional Advocates General for the respondent, Sudhir Bhatnagar and Sanjeev Sood, contended that the appellants herein were fully cooperating with the investigation and nothing remained to be recovered from them. Also, the reports suggested that despite several attempts by the investigating authority the complainant was not coming forward to associate with the investigation.

High Court relied on Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 and held that a person is presumed to be innocent unless found guilty and hence his freedom cannot be curtailed for an indefinite period. Further reliance was placed on Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 and it was held that gravity of the offence cannot be a decisive ground to deny bail, and the object of bail is just to secure the appearance of the accused, and the objective thereof is neither punitive nor preventive.

The Court after considering the cooperation of the appellants in the investigation and other relevant facts ordered the appellants to produce bail bonds of 25,000 each and allowed the bail petition. [Jagdish Sharma v. State of Himachal Pradesh, 2019 SCC OnLine HP 1403, decided on 30-08-2019]

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]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order of Masood Ahmad Bhat while directing for his release from the preventive custody.

Denetu, Masood Ahmad Bhat, sought quashing of detention order dated 22-01-2019.

The grounds of which the detention order was challenged were as follows:

  • No compelling reason or circumstance was disclosed in the order; more so on the date of the passing of the order of detention, the detenu was already in custody.
  • Material forming detenu’s order of detention not provided in order to make representation
  • Detaining authority did not prepare grounds of detention itself; which is a pre-requisite before passing any order.

On receiving the notice passed to the respondents they submitted that the order was in consonance to fact and law and they further sought the dismissal of Habeas Corpus Petition.

Counsel for the petition submitted that in light of the above-stated grounds and the fact that the detenu was already in custody leaves no possibility of detenu being implicated in the activities prejudicial to the security, sovereignty and integrity of the State. Detention Order has been passed in absence of any material and the same is therefore bad in law. He also referred to the Supreme Court case, T.V. Sravanan v. State, (2006) 2 SCC 664.

Observations of the Court

Bench stated that the only precious and valuable right guaranteed to a detenu is of making an effective representation and the same can be done only when the relevant material and grounds of the detention are made available to the detenu.

Since the material is not supplied, right of the detenu to file such representation is impinged upon. Bench relied on the following cases for the said point, Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, Khudiram Das v. State of W.B., (1975) 2 SCC 81 & Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531.

Court examined the present case on the touchstone of the above-settled position of law and perusal for the record, the detenu was not supplied the materials relied upon by the detaining authority. Therefore, the detention of the detenu is vitiated.

Court also added that detenu was involved in the substantive offence and did not apply for bail for the same, thus he can remain in custody for that unless released on bail.[Masood Ahmad Bhat v. State of J&K, 2019 SCC OnLine J&K 791, decided on 25-09-2019]

Legislation UpdatesNotifications

Section 439 of the Code of Criminal Procedure, 1973 stood amended by the Criminal Law (Amendment) Act, 2018 (No. 22 of 2018) w.e.f. 21-04-2018 vide which, amongst others, it has been mandated that the presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of
Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code and that the High Court or the Court of Session shall, before granting bail, give notice of such application to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

The relevant provisions of “The Criminal Law (Amendment) Act, 2018” in this respect are reproduced herein below:-

“23. In Section 439 of the Code of Criminal Procedure-

(a) In sub-section (1), after the first proviso, the following proviso shall be inserted, namely:-

“Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-Section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.”

(b) After sub-section (1), the following sub-section shall be inserted, namely:-

“(1-A) The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860).”

In order to ensure better and effective compliance of the above provisions, Hon’ble the Chief Justice has been pleased to direct as under:-

(a) Before granting bail to a person who is accused of an offence triable under sub-Section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code, the High Court or the Court of Session shall give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application; and

(b) The Courts shall ensure that the Investigating Officer has, in writing as per Annexure A, communicated to the informant or any person authorized by her that her presence is obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code. Annexure A shall be filed by the I.O. along with the Reply / Status Report to such bail application and the Courts shall make all endeavour to ensure the presence of the informant or any person authorized by her.

These directions shall come into force with immediate effect.

[Practice Direction issued dt. 24-09-2019]

Delhi High Court

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. granted bail to a 22 year old student for an offence committed under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. As per the averments made by him, the petitioner claimed to be innocent and that he was falsely implicated for the case. 

As per the prosecution, the petitioner was nabbed by the police on 25-08-2019. Upon being checked, there was a brownish substance found in his bag, which was heroin. After the FIR was registered, the petitioner was arrested and during the course of interrogation and investigation, it was revealed that he was a drug addict. The police had sent the sample of contraband for forensic analysis and the report revealed that the sample was of Diacetylmorphine (Heroin). Therefore, the prosecution prayed that the bail application of the petitioner should be dismissed, as the petitioner was found involved in a serious crime. The petitioner further argued that he was not in a position to tamper with the prosecution’s evidence nor was in a position to flee from justice. He also argued that no fruitful purpose will be served by keeping him behind the bars for an unlimited period especially when the investigation is complete. 

The Court, after considering that the petitioner was only 22 years old, and was only a student, and also considering the fact that the petitioner was a drug addict and he had the contraband for his own use, there was a possibility that the petitioner may reform in case he would be enlarged on bail. Further, he was a permanent resident of District Kullu, Himachal Pradesh, and was not in a position to tamper with the prosecution evidence nor was in a position to flee from justice. The Court found that the case was a fit case where the judicial discretion to admit the petitioner on bail must be required to be exercised in his favour. The petition was allowed and he was released on bail subject to his furnishing personal bond in the sum of twenty thousand rupees with one surety in the like amount to the satisfaction of the learned Trial Court. [Vikas Sagar v. State of Himachal Pradesh, 2019 SCC OnLine HP 1524, decided on 16-09-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. disposed of a matter wherein a complaint was lodged against the petitioner accusing of committing rape and cheating.

In the present case, the complainant, a married lady whose divorce proceedings were still underway had advertised in the matrimonial column of a newspaper seeking a response from interested persons in respect of her marriage proposal. The petitioner responded to the same by agreeing to marry the complainant. Based on the assurance, both the parties shared an intimate relationship and indulged in sexual intercourse. However, later, the petitioner showed disinterest in the marriage proposal.

It has been stated by the complainant that the petitioner had taken Rs 2 lakhs from her and also her gold ornaments coming to 35 sovereigns and that she has been cheated and that she had given her consent to have sexual intercourse with the petitioner only on the basis of the assurance that he would marry her and that the petitioner has committed the abovesaid offences.

The complainant was filed under Section 376 of the Penal Code, 1860.

The Counsel representing the petitioner, V. John Mani, submitted that the complainant had suppressed facts from the petitioner by seeking marriage from the petitioner despite being a married woman at that point of time as the divorce proceedings were still underway and thus, it was the petitioner who had been cheated. Further, it was submitted that there was a falsification of facts when the complainant stated that the petitioner had borrowed money and gold ornaments, since, the complainant had extracted amount more than five lakhs from the petitioner.

In addition to the above, it was stated that the arrest and detention of the petitioner is absolutely illegal and ultra vires and that going by the admitted allegations in the FIS, the Police has committed a serious illegality in arresting the petitioner and that the arrest and detention of the petitioner is against the binding decisions of the Supreme Court and various High Courts in respect of the legal position relating to the lawful arrest of the accused persons in such cases.

The public prosecutor for the state, T.R. Renjith contended that the Police was given 3 days time for custodial interrogation of the petitioner, after his remand and that the petitioner has not co-operated with the investigating officer in respect of the recovery of the gold ornaments alleged to have been taken by the petitioner from the lady and that the petitioner is likely to threaten or intimidate the complainant, if he is let out on bail.

High Court upon perusal of the facts and circumstances of the case expressed its dissatisfaction with the police authorities arresting the petitioner for the period of time in a case wherein the complainant herself had requested for marriage proposals despite not being lawfully declared as divorced from the former marriage.

Adding to the above, Court stated that, “the petitioner has got a specific case that the lady has suppressed the fact that she was twice married and that though she had secured divorce in respect of her first marital relationship, divorce proceedings are still pending in respect of her second marital relationship, etc. The Police is duty-bound to investigate the crucial aspects as to whether the lady is twice married as alleged by the petitioner. If that be so, it is for the Police authorities to take serious note of such aspects which has been suppressed by the lady defacto complainant in her FIS.”

Thus, bail was granted to the petitioner, however with certain conditions of not committing any offence while on bail, not interacting with the complainant or tampering with evidence. [Prasanth Nelson v. State of Kerala, 2019 SCC OnLine Ker 2934, decided on 18-09-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench comprising of Sandeep Mehta and Abhay Chaturvedi, JJ. allowed an application of suspension of the sentence due to improper conviction by the trial court.

In the present case, the accused-appellant was convicted under Section 302 of the Penal Code, 1860 under the pretense that he had committed the murder since the weapon used to murder, in this case, a knife was retrieved from the accused-appellants possession. 

The advocates representing the accused-appellant, Hasti Mal Saraswat and Surya Prakash, submitted that according to the FSL Report, it has been stated that there no traces of blood found on the knife when the weapon was subjected to chemical and serological tests. Thus, the trial court erred in convicting the accused-appellant.

The Court upon perusal of the records allowed the application for suspension of sentence and granted bail to the accused-appellant upon execution of personal bond and sureties.[Sahbaan v. State of Rajasthan, 2019 SCC OnLine Raj 2956, decided on 16-09-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. contemplated a bail application filed under Section 439 of CrPC where the applicant was charged under Sections 21, 61 and 85 of Narcotic Drugs and Psychotropic Substances Act.

The facts of the case are that the petitioner was on his motorcycle when he was asked to stop by the authorities and was searched. The petitioner who alleged to be a chemist was found with prohibited drug in huge quantity. The police prepared a recovery memo in front of an independent witness. It was the story of the police that the petitioner failed to produce any permit of license of the prohibited drug. The petitioner was arrested soon after and since then he was in custody.

Additional Advocate General of the State, Sumesh Raj, submitted that the petitioner had not disclosed the source from where he received the illegal drugs he further strenuously argued that keeping in view the gravity of the offence alleged to be committed by the bail petitioner, he did not deserve any leniency, rather needed to be dealt with severely.

On the contrary the counsel for the petitioner K.S. Banyal, contended that the drug named ‘lomotil’ which was allegedly recovered from the petitioner was outside the purview of the definition of manufactured drugs as defined under Section 2(xi) of the Act. On the scientific grounds he argued that the preparations of Diphenoxylate calculated as base, and a quantity of Atropine sulphate equivalent to at least one percent of the dose of Diphenoxylate did not fall under the definition of manufactured drugs, as notified by the Government. He further contended that as far as Tramadol the other drug was concerned, the same was of intermediate quantity and as such, rigour of Section 37 was not attracted in the present case. He further contended that for the last four months bail petitioner was behind the bars and there was none at his home to take care of his widow mother.

The Court held that though the offences were of serious nature but considering the age of the petitioner who is very young and his family background and financial background, Court found no reason to let him incarcerate in jail. It was further held that, “Tramadol allegedly recovered from the bail petitioner is also of intermediate quantity, rigor of Section 37 are not attracted in the present case and as such, freedom of bail petitioner whose guilt, if any, is otherwise yet to be ascertained/determined by the Court of law on the basis of cogent and convincing evidence, if any, led on record by the Investigating Agency, cannot be allowed to curtail for indefinite period, during trial.” Hence, bail was granted to the petitioner on certain conditions. [Ankit Kumar v. State of H.P., 2019 SCC OnLine HP 1498, decided on 11-09-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: A Bail petition was contemplated by Sandeep Sharma, J. where the petitioner was behind the bar for two months and had approached the Court under Section 439 of CrPC, for regular bail.

The petitioner was charged under Section 9 of Protection of Child Marriage Act, 2006 and Section 6 of Protection of Children from Sexual Offences Act. The instant bail application arises out of the case where the complainant was a coordinator of child helpline; the complaint was related to a minor who was residing along with the bail petitioner with an intention to solemnize the marriage. Complainant further alleged that as per information prosecutrix had a child aged 7 months. Such facts were found to be true in the investigation by the police. Police further recorded the statements of prosecutrix under Section 154 CrPC, where she stated that she knew the petitioner since her childhood and wanted to marry him. The prosecutrix had stated that she was living with the bail petitioner out of her own will and they were married according to the local custom. Her statements were recorded under Section 165 CrPC where she reiterated the same and admitted that she knew the petitioner since childhood, she also stated that prior to her marriage, her husband was married to her elder sister who died due to prolonged illness. She stated to the magistrate that complaint was made at the insistence of Coordinator Child Helpline, who had assured that in the event of filing complaint they would take care of her child and would also pay money.

On the basis of the aforesaid statement made by the prosecutrix, formal FIR, came to be lodged against the present bail petitioner under Section 9 of the Prohibition of Child Marriage Act. However, Section 6 of the POCSO, came to be incorporated in the FIR subsequently and bail petitioner was behind the bars.

Advocate General further contended that though the statement of the prosecutrix suggests that she of her own volition solemnized marriage with the bail petitioner, but keeping in view her age, consent, if any, was immaterial and as such, present bail petition having been filed by the bail petitioner may be dismissed.

The Court observed that the statements of prosecutrix given to magistrate were convincing and satisfactory. Court believed that the girl was not kidnapped by the petitioner also she of her own violation joined the company of the petitioner. It further emerged from the record that marriage inter se prosecutrix, who was admittedly minor at the time of the alleged incident, took place with the prior consent/agreement of families of bail petitioner as well as prosecutrix. The Court further held that, “No doubt, in the case at hand, age of the prosecutrix was less then 18 years at the time of alleged incident, but having taken note of the fact that prosecutrix had been living in the house of the bail petitioner for the last one year and she has delivered one baby boy, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period, during the trial.”

The Court noted that the validity of marriage inter se prosecutrix and the petitioner can only be decided in proceedings before the appropriate Court of law. The Court held that, “it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.” Hence, bail was granted to the petitioner on certain terms and condition.[Partap v. State of Himachal Pradesh, 2019 SCC OnLine HP 1472, decided on 04-09-2019]

Case BriefsHigh Courts

Kerala High Court: B. Sudheendra Kumar, J. allowed a bail application seeking relief of anticipatory bail for crimes of criminal conspiracy.

In the present case, the third respondent had purchased the property of the petitioner. However, it was alleged that the survey number of the property was shown incorrectly by the petitioner and hence, a case was registered against the petitioner for criminal conspiracy under Section 120-B of the Penal Code, 1860.

The Counsel representing the petitioner, Binoy Vasudevan, applied for anticipatory bail and submitted that the petitioner was not involved in the acts of criminal conspiracy as alleged by the respondents.

The Public Prosecutor for the State opposed the submission of the petitioner. However, he submitted that the petitioner has not been involved in such activities of a similar nature and has no criminal antecedent.

The Court, upon perusal of the documents and facts presented on the record, allowed the bail application and stated that the documents relating to the transaction had been already been seized by the police and no recovery is to be effected from the petitioner. Thus, the custodial interrogation is not necessary and due to the petitioner having no criminal antecedent, the petitioner needs to be released.[Paily Mathew v. State of Kerala, 2019 SCC OnLine Ker 2866, decided on 04-09-2019]

Case BriefsHigh Courts

Rajasthan High Court: P.K. Lohra, J. granted bail and suspended the sentences of the applicant passed by the District Judge.

In the present facts of the case, the petitioner was accused and convicted of offences for an attempt to murder and wrongful restraint by the Additional District Sessions Judge, Bhadra and was handed down the maximum sentence of seven years of imprisonment for the serious offences.

The Counsel representing the applicant, K.R. Bhati prayed for suspension of sentences and submitted that the accused had remained in the custody for a period of four years and eight months out of the total period of seven months of sentence and the final appeal shall not take place in the near future, hence should be granted bail.

The Public Prosecutor for the State, R.R. Chhaparwal, denied and opposed the application for suspension of sentence.

The Court upon perusal of the arguments, facts, and circumstances of the case, granted bail and suspended the sentences passed by the Additional District Judge. The Court stated that the present application is the second application for suspension of sentence and the applicant had already served prolonged incarceration, hence until and unless the appeal has been finally disposed of the applicant shall be released on bail upon executing a personal bond of an amount along with two sureties. The Court also directed the applicant that he shall be present at all times until the appeal is finally disposed of.[Sandeep v. State, 2019 SCC OnLine Raj 2499, decided on 29-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. allowed the petition for the anticipatory bail with the condition to comply with the order of payment of maintenance to the complainant.

An application for the interim bail was made for the case registered under Sections 323, 406, 498-A and 506 of the Penal Code.

The brief facts of the case were that petitioner and other members of the families were not satisfied with the article of dowry and frequently used to harass the complainant. It was also alleged that the complainant was beaten by the accused on various occasion and was thrown out of the matrimonial house.

Shalender Mohan, counsel for the petitioner submitted that false FIR was registered against the petitioner on the account of some minor matrimonial differences between the parties. It was further added that the petitioner pursuant, to the interim directions, has already deposited an amount of Rs 1.25 lakhs and that he deserves the concession of bail.

Aditi Girdhar and Sandeep Kotla, counsels for the State and complainant respectively informed that the petitioner had joined the investigation but the gold articles comprising stridhan were yet to be discovered. It was further informed that the petitioner had not even deposited any amount towards the maintenance as under Section 125 CrPC, which is due since the last about three years.

The court thus opined that petitioner in the event of arrest be released on bail subject to furnishing the personal bond and surety bond to the satisfaction of arresting and investigating officer. The condition that the petitioner should clears payment of a least 50% of the arrears of maintenance awarded under Section 125 CrPC to the complainant within two months from today was also added by the court.[Vijay v. State of Haryana, 2019 SCC OnLine P&H 1475, decided on 19-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Manoj Bajaj, J., allowed a regular bail application on the ground that the co-accused was also on bail. 

A bail application was made for the grant of regular bail where the offence under Sections 420, 406 and 120-B of the Penal Code, 1860 were registered. 

The brief facts of the case were that the complaint was made herein it was alleged that the complainant was taking a round of the sugar mill when he saw the driver of the tractor-trolley was reversing from the weighing bridge. When inquired regarding the weight, the driver told that the empty trolley was not being weighed on the said machine but the receipt when checked; it was found that he was lying and the receipt was false. The matter was inquired and it was disclosed that he along with Ajay Kumar who was working in the Sugar Mill and some other persons were involved in causing wrongful loss to the Sugar Mill for their gain.

Mukesh Singh, brother of the petitioner submitted that the co-accused, namely Ajay Kumar Sharma, already stands released on regular bail by this Court. It was further revealed that had suffered a confessional statement before the police wherein it was mentioned that he was allegedly involved in five such weighments of the vehicles and a sum of Rs 10,000 came to his share. Thus a prayer that the petitioner be released on regular bail was made.

The court opined that the “investigation qua the petitioner is complete and the trial is likely to consume some time, further detention of the petitioner may not be justified” Thus the petitioner was released on bail subject to furnishing requisite bail bonds and surety bonds to the satisfaction of the trial court. [Ankit Sharma v. State of Haryana, 2019 SCC OnLine P&H 1369, decided on 06-08-2019]

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. disposed a bail application and granted bail by providing various requisite conditions on the petitioner for the safeguard of the victim.

In the present case, the petitioner has been accused of being the sole accused wherein a case has been registered under Sections 450 and 376 of the Indian Penal Code, 1860 (‘IPC’). It has been alleged by the prosecution, being a divorced lady with an 11-year-old minor child that the accused-petitioner had promised her that he would find a tenant for her house which she was looking to let out on rent. It was reported that on the 19-05-2019, the accused-petitioner had invited the lady at a house and to her dismay; the petitioner was alone and indulged her in sexual intercourse.

Counsel representing the accused-petitioner, Sergi Joseph Thomas, submitted that the prosecution in her FI statement had mentioned that she was having an affair with the accused-petitioner and thus indulging in sexual intercourse was based on consent and not forceful. The counsel also submitted that there was a considerable amount of unexplained delay in filing the case since the date of the incident thus leading to fabrication of factual circumstances.

The Public Prosecutor representing the State, Saigi Jacob Palatty contended that if the petitioner is let out on bail, there will be a possibility of the petitioner intimidating the witnesses and the lady as well. 

The present Bench, upon perusal of the facts and circumstances of the case, stated that the petitioner had already served 34 days detention and there has been an unexplained delay in setting the complaint into motion from the victim lady’s end. The Court noted that merely because the investigation is pending the accused-petitioner cannot be denied bail. However, since there exists a possibility of the accused-petitioner influencing the witness or the lady, the court granted bail to the petitioner and imposed various conditions on the accused-petitioner. The Court directed that:

“i. The petitioner shall appear before the Investigating Officer on every 2nd and 4th Saturdays, at any time between 10 am and 1 pm, for a further period of 3 months or till final report is filed, whichever is earlier.

ii. He shall not intimidate or attempt to influence the lady victim, witnesses; nor shall he tamper with the evidence.

iii. He shall not commit any offence while on bail. 

iv. The petitioner shall not visit or go anywhere near to the residence of the lady defacto complainant. 

v. The petitioner shall not reside or enter anywhere within the territorial limits of the Police Station where the lady defacto complainant is residing until the conclusion of investigating process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned. If the petitioner has any emergent personal need to visit the said area, he may do so but only with the prior permission of the investigating officer concerned.”[Vineesh v. State of Kerala, 2019 SCC OnLine Ker 2408, decided on 29-07-2019]