Bail

Case BriefsDistrict Court

Sessions Court: Dharmendra Rana, ASJ-02 disposed of Disha A. Ravi’s application for grant of bail.

Applicant’s counsel submitted that the applicant/accused had been falsely arrested and was brought to New Delhi without obtaining any transit remand and remanded to police custody. FIR had been registered for the offences punishable under Sections 153, 153-A, 124-A Penal Code, 1860.

The investigating agency maliciously added allegations under Section 124A IPC in order to portray a minor offence which is punishable upto life imprisonment. Further it was added that the investigating agency maliciously sought to sensationalize the allegations by way of invoking phrases such as “global conspiracy” only with a view o cause tremendous prejudice to the applicant/accused.

As per the prosecutions’ case, the toolkit documents circulating on social media and accessed by the police were inter alia seditious, showing disaffection against the government; the said document was allegedly created by an organisation called “Poetic Justice Foundation”. It was also added that the statements made in the document were not merely statements, but allegedly incited violations of public order and certain alleged acts of public disorder in both India and abroad on 26-01-2021.

The applicant allegedly created and was part of a WhatsApp group that included persons who allegedly edited the toolkit and also communicated with other persons about the document.

It has also been alleged that the applicant was also a part of another WhatsApp group which she deleted and also shared the document with other persons including Greta Thunberg.

Issue:

Whether the applicant/accused Disha was merely involved in peaceful protest and dissent against the farm acts or she was actually involved in seditious activities under the guise of protesting against the said legislation?

 Bench while interpreting the word ‘Sedition’ under Section 124A of IPC, referred to the Supreme Court decision in Kedar Nath v. State of Bihar, AIR 1962 SC 955, wherein the Court dealt with the acts which are proscribed and have a tendency to cause ‘disaffection against India’.

Law proscribes only such activities would be intended, or have intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. ‘Violence’ seems to be the gravamen of the charge.

In the decision of Bombay High Court, Arun G. Gowli v. State of Maharashtra, 1998 Cr. LJ 4481 (Bombay) it was observed that conspiracy cannot be proved merely on the basis of inferences. Inferences have to be backed by evidence.

Bench analysed the material collected by the investigating agency to substantiate the allegations of the ‘Larger Conspiracy’.

  • Engagement with secessionist forces

ASG pointed out that a pro-Khalistani secessionist group namely the ‘Poetic Justice Foundation’ and people associated with it are directly linked with creation of the “Toolkit” document.

Adding to the above, it was also submitted that the applicant/accused alongwith founders of PJF used social media to peddle support for secessionist Khalistan narrative in the guise of Farmers Protest.

Opinion of the Bench

It is not mere engagement with persons of dubious credentials which is indictable rather it is the purpose of engagement which is relevant for the purpose of deciding culpability.

Any person with dubious credentials may interact with a number of persons during the course of his social intercourse. As long as the engagement/interaction remains within the four corners of law, people interacting with such persons, ignorantly, innocently or for that matter even fully conscious of their dubious credentials, cannot be painted with the same hue.

 Hence, Court decided that in the absence of any evidence to the effect that the applicant/accused agreed or shared a common purpose to cause violence on 26-01-2021 along with founders of PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused, simply because she shared a platform with people, who have gathered to oppose the legislation.

 No evidence was brought to Court’s notice connecting the perpetrators of the violence on 26th January, 2021 with the said PJF or the applicant/accused.

  • Use of ‘Toolkit’

 It was added that in the main body of the ‘Toolkit’ there was a segment titled “Prior Action” which included Digital Strike through hashtags on 26th January, 2021 and Joining the Farmer’s march into Delhi and then back to the border.

Further, another part of the same document mentioned tasks such as disruption of India’s cultural heritage such as ‘Yoga’ and ‘Tea’ and targeting Indian embassies abroad.

Opinion of the Bench

Court opined on perusal of the ‘Toolkit’ that any call for any kind of violence was conspicuously absent in the same.

Citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies.

Bench also added that difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies.

While elaborating more with regard to a healthy democracy, Court added that an aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of healthy and vibrant democracy.

Freedom of Speech and Expression includes the right to seek a global audience.

A Citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as the same is permissible under the four corners of law and as such have access to an audience abroad.

Further, there was a mention with regard to hyperlinks in the toolkit by the ASG, the said links were with an intent to malign India abroad. Two such hyperlinks were analysed by the Court and nothing objectionable as found.

The imputations may be false, exaggerated or even with a mischievous intent but the same cannot be stigmatized being seditious unless they have tendency to foment violence.

  • Conduct of the applicant/accused

It was claimed that the applicant/accused created a WhatsApp group by the name of “Intl farmers strike” and added certain persons to the group.

Adding to the above, it was stated that she deleted the group chat from her phone in an attempt to destroy the crucial evidence linking her with the toolkit and PJF.

Also, it was submitted that, she tried her best to conceal her identity so that legal action could not be taken against her. It is further alleged that she gave a global audience to the secessionist elements by manipulating the support of international youth icon Ms Greta Thunberg.

Opinion of the Bench

Bench expressed that the creation of a WhatsApp group or being editor of an innocuous Toolkit is not an offence.

 Since, no link was found to be objectionable, mere deletion of the WhatsApp chat to destroy the evidence linking her with the toolkit and PJF became meaningless.

Nothing on record was found to suggest that the applicant accused subscribed to any secessionist idea.

Prosecution failed to point out how the applicant/accused gave a global audience to the ‘secessionist elements’.

Further, no evidence was brought to Court’s notice to support the allegation that violence took placed at the Indian Embassies pursuant to the sinister designs of the applicant/accused and her co-conspirators.

“…it is very difficult to collect evidence for the offence of conspiracy but I’m equally conscious of the fact that what is difficult to prove for the prosecution in the affirmative is virtually impossible for the defence to prove in the negative.” 

Bench stated that it is not aware of rule of law or prudence, that a person is mandatorily required to be detained in custody to be confronted with other co-accused persons.

Court added that the applicant accused is already reported to have been interrogated in police custody for almost about 5 days and placing further restraint upon her liberty on the basis of general and omnibus accusation would be neither logical or legal.

Hence, considering the scanty and sketchy evidence on record, Court opined that the applicant accused deserved to be released on bail subject to filing of personal bond of Rs 1 lakh with two sureties, subject to the following conditions:

  1. She shall continue to cooperate with the ongoing investigations and shall join the investigation as and when summoned by the IO;
  2. She shall not leave the country without the permission of the court;
  3. She shall scrupulously appear at each and every stage of the pro­ceedings before the Court concerned so as not to cause any obstruc­tion or delay to its progress.

[State v. Disha A. Ravi, Bail Application No. 420 of 2021, decided on 23-02-2021]

Advocates who appeared for the matter:

Sh. Irfan Ahmed, Ld. Addl. PP for State.
Sh. Abhinav Sekhri, Ld. counsel for applicant/accused.

Image Credits of Disha A. Ravi: ANI

Case BriefsHigh Courts

Punjab and Haryana High Court: Jai Shree Thakur J., set aside the impugned order and allowed the appeal.

The facts of the case are such that he was arrested in FIR No.94 registered under Sections 307, 376, 457, 511 Penal Code, 1860 i.e. IPC at Police Station Division No.7, Ludhiana. He moved an application for grant of bail before Juvenile Justice Board, but the same was dismissed. The appeal preferred by him before the Additional Sessions Judge, Ludhiana was also dismissed. The present revision petition has been filed to challenge the impugned order dated 22.06.2020 passed by the Juvenile Justice Board, Ludhiana, whereby, the bail to the present petitioner aged 15 years (who has already been declared juvenile) has been declined and the same has been affirmed by Additional Sessions Judge, Ludhiana vide judgment dated 07.08.2020.

Counsel for the petitioners submitted that the argument forwarded by the respondents that  if released on bail he would come in close proximity to her as he resides near to the house of the complainant; and he may be exposed to moral and psychological danger and also his release would defeat the ends of justice, whereas, no such finding was recorded as to how he will come in contact with criminals and how he will be exposed to moral, physical or psychological danger, or that his release would defeat the ends of justice. It was also submitted that the petitioner is a student and he is not a previous convict nor is associated in any kind of un-social or criminal activities. It is further argued that nothing has been brought on record so as to show that the petitioner is having any criminal background or any criminal case has been registered against any of his family member.

Counsel for the respondents opposed the grant of bail to the petitioner on the ground of heinousness and seriousness of offence.

The court observed that from a bare reading of the provisions of Section 12 of the Juvenile Justice Act, 2015 i.e. J.J. Act, it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by him, and bail can be declined only in such cases where reasonable grounds are there for believing that the release is likely to bring the juvenile into association of any known criminal or expose him to moral, physical or psychological danger, or that his release would defeat the ends of justice. Meaning thereby, as per the aforesaid provision, a juvenile can be denied the concession of bail, if any of the three contingencies specified under Section 12 (1) of the J.J. Act is available.

 Issue regarding orders declining bail to juveniles

The Court observed that bail of a child in conflict with law cannot be rejected in a routine manner and if the bail is declined, a reasoned order has to be given by the Board. A juvenile has to be released on bail mandatorily unless and until the exceptions carved out in proviso to Section 12 (1) of the J.J. Act, 2015 itself are made out. The exceptions are noted being:-

  1. a) a reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal;
  2. b) his release is likely to expose him to any moral, physical or psychological danger; and
  3. c) his release would defeat the ends of justice.

The Court thus held that “I am of the view that both the Courts below have not satisfied the requirement of provisions of Section 12(1) of the J.J. Act and without adhering to material on record, the bail application of the petitioner has been declined. Petitioner is in custody since the date of filing of the FIR i.e. 17.05.2020 and no purpose will be served, in case, he is kept in custody. The impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside.”

 In view of the above, impugned order was set aside and appeal allowed.[Vishvas v. State of Punjab, CRR No. 53 of 2021, decided on 08-02-2021]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., allowed the petition and reduced the sentence to the period of imprisonment already undergone.

Background

The facts of the case are such that an unmarried boy aged 24 years, who is in custody for around three months, because a minor girl aged 16 years, came to his home as they love each other, stayed there, had coitus, which on the intervention of her parents led to the registration of FIR. The petitioner filed a bail petition under Section 439 Criminal Procedure Code i.e. CrPC before this High Court, wherein the bail petition was dismissed as withdrawn vide order dated 17-12-2020. Assailing the said order instant petition was filed seeking regular bail on the ground of the conduct of the victim.

Analysis

The Court observed that neither Section 376 of the Indian Penal Code, 1860, (IPC), nor Section 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO) create any restriction on grant of bail. It was further observed that after perusing the facts and circumstances, it seems that the petitioner and the victim knew each other and were romantically involved and there is no case of forcible sexual relationship; instead, the victim surrendered to the petitioner’s physical desires out of her love and affection towards him. The victim’s boldness to declare her passion towards the petitioner in the presence of her father and Police speaks volumes. Further, she also told them explicitly that she left her home out of her own free will and refused to go back with her father. These facts point out that the victim, being 16 years of age, though a minor, voluntarily left her home. Therefore, the rigors to reject bail and reasons to continue incarceration are reduced by the mitigating factors in the present case.

Observations

The Court further observed that adverting to the facts of the present case, the appellant has unintentionally admitted his culpability and the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

The court relied on judgment Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 and stated that consent of the minor is immaterial for purposes of Section 361 of IPC and provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC goes beyond this simple presumption and bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

The Court further relied on State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222

“13. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

The Court thus observed that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. The Court further held that “the quantum of sentence awarded to the appellant deserves to be revisited”.

Grounds for revision

  1. No force, no pre-planning, use of any weapon or any vulgar motive had been present in the act of kidnapping.
  2. The young age of the accused at the time of the incident cannot be overlooked.
  3. trial delay at different levels i.e. more than twenty-two years have passed since the incident.
  4. The present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice.
  5. There is no grotesque misuse of power, wealth, status or age which needs to be guarded against.

The Court thus held that “the prosecution has established the appellant’s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone.”

In view of the above, petition was allowed.[Virender Singh v. State of HP, 2021 SCC OnLine HP 280, decided on 04-02-2021]

Arunima Bose, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, Surya Kant and Aniruddha Bose, JJ refused to grant bail to activist Akhil Gogoi for his alleged role in the anti-CAA protests in the State of Assam.

Dismissing the Special Leave Petition, the Court said,

“Having heard learned senior counsel for the petitioner and carefully perusing the material placed on record, we are not inclined to grant bail to the petitioner at this stage.”

Akhil Gogoi was arrested in December, 2019 for his alleged role in the anti-CAA protests that turned violent. He was booked by the NIA under UAPA.

[Akhil Gogoi v. National Investigation Agency,  2021 SCC OnLine SC 78, order dated 11.02.2021]

Op EdsOP. ED.

With the best interests of under trial prisoners in mind, Section 436-A of the Code of Criminal Procedure (CrPC) was brought in. The intent behind the new section was to uphold the rights of imprisoned individuals who are forced to languish in jail for prolonged periods of time pending investigation, inquiry or trial. In many cases, imprisonment of under trial prisoners was continuing for substantial periods of time as against the principle of “presumption of innocence until found guilty”.

Section 436-A CrPC

Section 436-A CrPC was brought into force w.e.f. June 23, 2005, by virtue of an Ordinance duly promulgated by the President of India.

Section 436-A CrPC states that where a person has, during the period of investigation, inquiry or trial under the CrPC of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.

The first proviso states that the Court may, after hearing the public prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties.

The second proviso envisages that no such person shall, in any case, be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Furthermore, the explanatory provision states – In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

Gamut of the Provision

Although the provision appears to be quite axiomatic, it can be seen that the relief of bail does not follow as a matter of course even if the pre-conditions contemplated in the provision are satisfied. The first proviso empowers the Court to deny such relief if it is of the opinion that further detention is necessary. As regards the second proviso – it elucidates that the relief is absolute in case the under-trial prisoner has served the maximum term prescribed for the offence he is charged with.

The First Proviso of Section 436-A CrPC

The Supreme Court and High Courts in a spate of judgments have indicated that speedy trial is a fundamental right of an accused under Article 21 of the Constitution of India and the consequence of denying such right is bail.

Although, the right to bail under the provision is not an absolute right, can the Courts deny relief to prisoners by getting into merits of the matter?

In Bhim Singh v. Union of India[1], a three-judge Bench of the Supreme Court directed the Jurisdictional Magistrates/Sessions Judges to hold one sitting in a week in each jail/prison for two months to identify the under-trial prisoners who had completed half period of the maximum term; or maximum term of imprisonment stipulated for the offence – and pass an appropriate order to release them on bail. The bench also issued directions to all the High Courts in the country to ensure compliance of the said order and submit a report to the Secretary of the Supreme Court without unnecessary delay.

It would not be out of place to say that much prior to the provision coming in existence, the Supreme Court had expressed concerns with regard to persons languishing in jail for long periods of time. In Hussainara Khatoon v. Home Secretary, State of Bihar[2], Justice Bhagwati, speaking for the Supreme Court, recognised ‘speedy trial’ as a fundamental right of an accused and anxiously directed the State to take steps for a positive approach on enforcing this fundamental right.

In Supreme Court Legal Aid Committee v. Union of India[3], the Supreme Court, relying on Hussainara Khatoon (supra) directed the release of prisoners charged under the Narcotic Drugs and Psychotropic Act after completion of one half of the maximum term prescribed under the Act. A.M. Ahmadi, J. (speaking for the Court) directed the same in an Article 32 petition, after taking into account the non obstante provision of Section 37 of the Act which imposed the rigours of twin conditions for release on bail. It was observed:

“We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab[4]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in AR Antulay v. RS Nayak[5], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21.

As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.”

In Hasan Ali Khan v. State[6] the Bombay High Court was pleased to release an undertrial prisoner charged under provisions of PMLA, after serving one half of the maximum term prescribed under the special statute. It was held:

“Since the Hon’ble Supreme Court has observed that the case of the present Applicant is to be considered in view of the judgment of Bhim Singh v. Union of India, this Court is of the opinion that it would not be necessary to go into the merits of the matter. Hence, this Court is of the opinion that by virtue of Section 436-A CrPC, 1973, the applicant is entitled to be enlarged on bail.”

Similarly, the Bombay High Court in Rashesh Mukesh Shah v. State[7] enlarged the accused (who had completed one-half of the maximum term prescribed) on bail under Section 436-A CrPC without getting into the merits of the matter.

The approach of Courts indicates that although the first proviso of Section 436-A CrPC empowers the Court to direct continued detention of the prisoners, the Courts would be overstepping the very said boundaries if the merits of the matter are ventured into for the purpose of denying relief under the provision.

Just as right to speedy investigation is a facet of Article 21 of the Constitution of India, the right to speedy trial, too, is a facet of Article 21. Two sides of the same coin, both facets hold water. As we know, failure to complete investigation within the prescribed period under Section 167(2) CrPC renders an indefeasible and right of bail in favour of the accused[8]. In fact, the Supreme Court made it clear that the pandemic of Covid-19 was no ground for the investigating agency to delay the investigation[9].

A valid approach to deny the benefit under Section 436-A CrPC, would only occur if the accused is mischievously and purposely delaying the trial and the same is solely attributable to his/her credit.

It is, therefore manifest that denial of relief under the provision, in any other case, could be a subterfuge, an infringement of a valuable fundamental right guaranteed under the Constitution of India.

† Advocate, Bombay High Court. Views are personal.

[1] (2015) 13 SCC 605.

[2] (1980) 1 SCC 98

[3] (1994) 6 SCC 731.

[4]  (1994) 3 SCC 569.

[5] (1988) SCC 1531.

[6] 2015 SCC OnLine Bom 8695

[7] 2018 SCC OnLine Bom 17551

[8] (2001) 5 SCC 453

[9] 2020 SCC OnLine SC 529

Case BriefsSupreme Court

Supreme Court: In a big relief to Munawar Faruqui, the bench of RF Nariman and BR Gavai, JJ has granted interim bail to the stand-up comic.

The order of the Court came after it was pointed out to it that the allegations made in the FIR against the comic are vague and also the procedure contained in Section 41 Cr.P.C. as adumbrated by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, has not been followed before making the arrest.

The Court, hence,  stayed the Judgment of the Madhya Pradesh High Court and released the comic on ad-interim bail on conditions to the satisfaction of the trial court. In the meantime, there shall be stay of the production warrants as well.

On 01-01-2021, a stand-up comedy show was organized at Munro Café. The complainant, who was a custodian of Hindu Protection Congregation (Sanghatan); had alleged that in the show, the comedians were deliberately cutting filthy and indecent jokes on Hindu Gods and Goddesses and BJP National President, Amit Shah. As a result, the comedians had hurt and outraged religious sentiments of the complainant. An FIR was filed for the offences punishable under Sections 295A, 298, 269 and 188/34 IPC and the applicant was kept in custody since 01-01-2021. The applicant had sought for bail before the Court of Magistrate and the Sessions Judge respectively but both the applications had been rejected.

Madhya Pradesh High Court’s single judge bench of Rohit Arya, J. had, on 28.01.2021, rejected the bail application of Comic Munawar Faruqui and the organizers of the show.

[Munawar v. State of Madhya Pradesh, 2021 SCC OnLine SC 60, order dated 05.02.2021]

MP HC | “The goals enshrined under Art. 51A(e) and (f) are part of our vibrant Constitution and not dead letters”; HC rejects bail application of Comedian Munawar Faruqui

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, Surya Kant* and Anirudhha Bose, JJ  has refused to interfere with the bail granted by Kerala High Court to KA Najeeb arrested under the Unlawful Activities (Prevention) Act, 1967 but has imposed the condition that Najeeb shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. He shall also refrain from participating in any activity which might enrage communal sentiments.

“In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith.”

Why was Najeeb arrested?

One Professor TJ Joseph while framing the Malayalam question paper for the second semester B.Com. examination at the Newman College, Thodupuzha, had included a question which was considered objectionable against a particular religion by certain sections of society.

On 04.07.2010, Najeeb along with some other members of Popular Front of India (PFI) had chopped¬off the professor’s right palm with choppers, knives, and a small axe. Country-made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim. As per records, over the course of investigation it emerged that the attack was part of a larger conspiracy involving meticulous pre-planning, numerous failed attempts and use of dangerous weapons.

Najeeb was arrested on 10.04.2015 and a chargesheet was re-filed by the National Investigation Agency against him, pursuant to which he is now facing trial.

Analysis

When can bail be cancelled?

At the outset, the Court clarified that there is a vivid distinction between the parameters to be applied while considering a bail application, vis-à-vis those applicable while deciding a petition for its cancellation.

“Bail once granted by the trial Court, could   be   cancelled   by   the   same   Court   only   in   case   of   new circumstances/evidence, failing which, it would be necessary to approach the Higher Court exercising appellate jurisdiction.”

Why did the High Court grant bail?

The High Court in the instant case had not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43-D(5) of UAPA are alien to him. It instead had exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43-D (5) of UAPA.

“… gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail.[1]”

Consideration by the Supreme Court

  • Najeeb has been in jail for much more than five years.
  • There are 276 witnesses left to be examined.
  • Charges have been framed only on 27.11.2020.
  • Two opportunities were given to the NIA who has shown no inclination to screen its endless list of witnesses.
  • Of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years’ rigorous imprisonment. Hence, it can be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark.

“Given that two-third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.”

Further, the presence of statutory restrictions like Section 43-D (5) of UAPA  per-se  does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.

“Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43¬D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

The Court also reiterated that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter.

“Owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.”

Further, the Court also noticed that Section 43­D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA. Instead, Section 43­D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well­settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc.

Though the Court noted that the charges levelled against the respondent are grave and a serious threat to societal harmony, however, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail.  Hence, the Court upheld the decision of the High Court attempting to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of the Constitution have been well protected.

[Union of India v. KA Najeeb, 2021 SCC OnLine SC 50, decided on 01.02.2021]

*Justice Surya Kant has penned this judgment 

[1] Shaheen Welfare Association v. Union of India, (1996) 2 SCC 616

Case BriefsHigh Courts

Madhya Pradesh High Court: Rohit Arya, J., in a controversial case regarding the use of insulting and unparliamentary language during the show, rejected the bail application of Comedian Munawar Faruqui and organizers of the show. The Court reiterated Articles 51A (e) and (f) of the Constitution,

“It is the constitutional duty of every citizen of the country and also of the States to promote harmony and the spirit of common brotherhood amongst all the people of India irrespective of religious, linguistic, regional or sectional diversities and to value and preserve the rich heritage of our composite culture”

 On 01-01-20201, a stand-up comedy show was organized at Munro Café. The complainant, who was a custodian of Hindu Protection Congregation (Sanghatan); had alleged that in the show, the comedians were deliberately cutting filthy and indecent jokes on Hindu Gods and Goddesses and BJP National President, Amit Shah. As a result, the comedians had hurt and outraged religious sentiments of the complainant. An FIR was filed for the offences punishable under Sections 295A, 298, 269 and 188/34 IPC and the applicant was kept in custody since 01-01-2021. The applicant had sought for bail before the Court of Magistrate and the Sessions Judge respectively but both the applications had been rejected.

Counsel for the applicant, Vivek Tankha argued that cutting of jokes on political leaders would not attract any offence, in view of Article 19(1) (a) of the Constitution, as it enshrines freedom of speech and expression. It was contended that the applicants were artists who cut jokes for laughter and entertainment of the general public and they had no intention to hurt religious feelings of any person of the society. The counsel, while contending so relied on Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC 760, wherein, it had been held that every act of insult to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class will not fall in the domain of section 295A IPC. 

The complainant alleged that the applicant and his associates had been actively involved in deliberately making nefarious, filthy and indecent jokes against the Hindu Gods, Lord Maryada Purshottam Ram and Mata Seeta. It was further alleged that the applicant along with co-accused had been regularly making such nefarious jokes on social media for the last 18 months, despite protest on various social media platforms.

The Bench, after observing collected material and evidence, held that the applicant had prima facie; made scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India with deliberate intendment in an organized public show under the garb of stand-up comedy at a public place on commercial lines.

The Court, while expressing, “our country is a beautiful country and sets an example of co-existence amid diversities; be it religion, language, culture, geographical locations etc, to the world at large”, stated that complacency of the applicant could not be ruled out. Further, noticing that a similar nature of offence had been registered against the applicant at Police Station Georgetown, Prayagraj, State of Uttar Pradesh, the Bench rejected the bail application of the applicant. [Munnawar Faruqui v. State of Madhya Pradesh, 2021 SCC OnLine MP 152, decided on 28-01-2021]

Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: “Whether cash can be deposited in lieu of surety bond for bail” was the issue decided by Alok Kumar Verma, J., in the present application filed by an accused of foreign nation.

The applicant was accused of offences punishable under Sections 420, 120-B of the Penal Code, 1860 Section 66 of the Information Technology Act, 2000 and Section 14 of the Foreigners Act, 1946. The same application to deposit cash instead of bond to be released on bail was filed before the Additional Chief Judicial Magistrate, which was rejected and same is challenged in the present peition.

However, the bail was granted under certain terms and conditions and one of such condition was “the applicant shall be released on bail on furnishing a bond with two sureties of like amount, one of whom must be a local surety, to the satisfaction of the court concerned”. The applicant has apprised the Court that the passport was deposited before the concerned Magistrate and because the applicant was a foreigner, he was unable to arrange sureties. Therefore, he offered to deposit cash amount in lieu of executing surety bond.

Counsel for the applicant Lalit Sharma, vehemently argued on the basis of Section 445 of Criminal Procedure Code, 1973 which states ‘Deposit instead of Recognizance’. Hence, it was contended that when the applicant was unable to provide surety because of his nationality, Section 445 of the Code will come into play. Therefore, the cash deposit must be allowed instead of surety and bail should be granted.

Held, “the applicant-accused is permitted to deposit the cash amount, a reasonable amount, to the satisfaction of the court concerned, in lieu of executing surety bonds”.[David Morrison v. State of Uttrakhand,  2021 SCC OnLine Utt 49, decided on 13-01-2021]

Aastha Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Ajay Bhanot, J., while allowing the present petition, on e-bail applications, said, “The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general.”

Amendments to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, made in the year 2016, brought an alteration in the practice and procedure for hearing of bail applications. Present petition has been moved to seek directions in remedy of certain anomalies as pointed out by the petitioners, including, inconsistencies in the procedure for hearing of bail applications and bail appeals, uncertainty in the period of maturation of bail applications and bail appeals, and deferment of hearing of bail applications or bail appeals under the Act for undefined periods.

Issue

  1. What is the agency and mode for service of notice of bail applications/bail appeal upon the victim under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act?
  2. What is the time period for maturation of a bail application/bail appeal before the High Court which implements the mandate of the Act (as amended from time to time) and agrees with the requirements of constitutional liberties?

 Observations

On Right to Bail

Court placed reliance on the case of Gudikanti Narasimhulu v. Public Prosecutor High Court of Andhra Pradesh, (1978) 1 SCC 240, “Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”

Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14, “The principle to be deduced from Sections 496 and 497 of the Criminal Procedure Code, therefore, is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person, if he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody”

Reinforcing the connection between the concept of liberty and the process of criminal law, the Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine 964, said, “Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Highlighting provisions for bail in High Court Rules

“Bail applications have to be processed expeditiously and placed before the court for hearing in a reasonable and definite time frame. The procedure for processing the bail application needs to be consistent, and the time period for hearing of the bail application has to be certain.

A bail processual framework violates fundamental rights and personal liberties of an accused guaranteed under Articles 14 and 21 of the Constitution of India in the following situations:

  1. Provisions with an unreasonably large time for maturation of a bail application;
  2. Procedures where the time period for hearing of a bail application is undefined;
  3. Practices causing indefinite deferment of hearing of a bail application.
  4. Failure of police authorities to provide timely instructions to the Government Advocate before the hearing of bail application.”

Court further reproduced the process of maturation of a bail application as contained in Rule 18 of Chapter 18 of the Allahabad High Court Rules.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Relevant Provisions and Discussion

“The Constitution of India asserts the equality of all its citizens. However, the founding fathers were equally conscious of inequalities which blight our society. Many sections of our society are downtrodden and oppressed because of historical reasons. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as amended from time to time), is a recognition of the fact of inequalities in our society; and a reflection of the resolve to do equal justice.”

Citing relevant provisions, Court observed,

“Section 15A(3) has two limbs: The first is the nomination of the agency to inform the victim about such proceedings under the Act before the Court. The second limb provides for ‘reasonable, accurate and timely notice’ of any criminal proceedings including a bail application/bail appeal to the victim or his dependent. Section 15(A) 3 visualizes some elements of process of maturation of bail, for being placed before the Court. However, it does not disclose any time frame for the same.”

With respect to the word ‘shall’ as added by the legislature, Court referred to the case of Dilip Kumar Sharma v. State of MP, (1976) 1 SCC 560, wherein the Supreme Court said, “It is well settled that such a penal provision must be strictly construed ; that is to say, in the absence of clear compelling language the provision should not be given a wider interpretation and no case should be held to fall within which does not come within the reasonable interpretation of the statute. If two construction are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness and eschew the other which makes the operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.” The position which thus emerges is that under the Act the State Government or Special Public Prosecutor is nominated as the sole agency with the exclusive statutory duty to inform the victim about the bail proceedings. Any practice to create an intermediate agency or alternative method for service of notice upon the victim should be avoided.

Directions issued

  1. The notice of the bail application or bail appeal under the Act shall be served upon the Government Advocate before 12:00 PM of any working day.
  2. The State Government shall ensure that service of notice of the bail application or bail appeal is effected upon the victim not later than 96 hours after the receipt of the said notice.
  3. The victim will be entitled to 72 hours after the receipt of notice of bail.
  4. Save in exceptional circumstances which are accepted by the Court, the bail application or bail appeal under the Act shall be placed before the Court immediately after the expiry of 168 hours or 7 days from the time of service of notice of bail application or bail appeal upon the Government Advocate as aforesaid.
  5. The report of the service of notice of bail application or bail appeal shall be submitted by the State authority before the court showing due compliance of the provisions of Section 15(3) of the Act.
  6. In case the counsel for the applicant does not move the bail application or bail appeal as per the current procedure to enable it to be placed before the Court 7 days after the initial service of notice, this procedure shall be followed. The applicant or his or her counsel shall give 96 hours of notice to the Government Advocate as to the exact date on which such application is intended to be moved. The State shall thereafter cause such notice to be served again upon the victim so as to enable him to have “accurate, notice of the proposed bail application”.
  7. During this period of 7 days notice of the bail application under the Act, the police authorities shall ensure that appropriate instructions are available with the Government Advocates to assist the Court at the hearing of the bail application or bail appeal.
  8. The SSP/DCP/SP (in districts where there is no post of SSP) of the concerned district shall be the nodal officer, who shall supervise the staff charged with the duty of actually serving the notice upon the victim and to provide instructions and relevant material to the Government Advocate on the bail application. In case, there is default on part of such official, the SSP/DCP/SP of the concerned district shall take immediate action in accordance with law against such erring official.
  9. Before parting the Court cannot but take notice of the fact that we live in the age of information technology. The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general. The State Government and the Bar are stakeholders in the matter. On behalf of the State, it has been submitted that the office of the Government Advocate does not have the infrastructure and trained personnel to accept and process e-notices of bail applications.
  10. Accordingly, the State Government is directed to ensure that requisite infrastructure and trained personnel in the High Court (Office of Government Advocate), as well as in police stations are available to process the traffic of notices by e-mail. The bail application/ bail appeal may be served upon the Government Advocate by e-mail. In case the notice is fully accurate and contains all the relevant annexures, the said service by e-mail shall be sufficient service upon the State.
  11. In the event of service of notice of bail application or bail appeal upon Government Advocate by e-mail, the time limit for effecting service of the said notice by the State upon the victim shall be 72 hours and not 96 hours. The bail application in such cases shall be placed before the Court in 144 hours or 6 days.
  12. The option of e-filing of notice of bail applications/ bail appeals under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, shall be made effective w.e.f. 01-05-2021.

 Decision

While allowing the present petition, Court made significant observations upon objective of Bail and the undue delay caused in granting the same under SC/ST (Prevention of Atrocities) Act.[Ajeet Chaudhary v. State of UP, 2021 SCC OnLine All 17, decided on 11-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

It’s the last day of 2020, and here we are with the 20 most-read Case Briefs of the SCC Online Blog in the Year 2020.

The following lists consist of the most-loved Case Briefs by SCC Blog Readers.

[Bombay High Court]

Bom HC | State Govt. declares ATMA, XAT, MAT, GMAT entrance tests not to be valid eligibility for MBA/MMS courses, instead only MS-CET, CMAT and CET to be valid: Read HC’s decision on Government Circular

[Anmol Jagdish Baviskar v. Minister, Higher and Technical Education Department Mumbai; 2020 SCC OnLine Bom 3853, decided on 11-12-2020]

[National Consumer Disputes Redressal Commission]

If a person carries out trading in shares on an occasional basis by opening a Demat Account, will that person come under the ambit of Consumer? Read NCDRC’s opinion

[Vaman Nagesh Upaskar v. India Infoline Ltd., 2020 SCC OnLine NCDRC 469, decided on 28-10-2020]

[Bombay High Court]

Bom HC | If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Court’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]

[Delhi High Court]

Del HC | Schools free to decline Online Education Facility to students whose parents fail to pay tuition fees

[Queen Mary School Northend v. Director of Education, 2020 SCC OnLine Del 736 , decided on 08-07-2020]

[Allahabad High Court]

All HC | Offences under Ss. 498-A IPC and 3/4 of Dowry Prohibition Act compounded in light of settlement between parties

[Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]

[Supreme Court]

Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]

[Kerala High Court]

Ker HC | If a particular income is not taxable under Income Tax Act, it cannot be taxed on basis of estoppel or any other equitable doctrine; Court reiterates principles for recovery under Income Tax Act

[Uniroyal Marine Exports v. CCE,  2020 SCC OnLine Ker 5175, decided on 17-11-2020]

[Allahabad High Court]

[Maintenance to Muslim wife] All HC | “S. 125 CrPC perhaps one of the most secular enactment ever made in this country”: HC while upholding maintenance awarded to a divorced Muslim wife

[Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]

[Kerala High Court]

Ker HC | No blanket order should be passed under S. 438 CrPC to prevent accused from being arrested when there is no crime registered against him; Court quashes order granting anticipatory bail

[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]

[Supreme Court]

SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571, decided on 14.07.2020]

[Allahabad High Court]

All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

[Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]

[Chhattisgarh High Court]

Chh HC | Can an application for anticipatory bail under S. 438 CrPC be filed directly before the High Court? || Thorough Analysis

[Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]

[Bombay High Court]

[S. 125 CrPC] Bom HC | Wife cannot be denied maintenance on ground of having a source of income

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]

[Calcutta High Court]

Cal HC | Rejection of complaint under S. 156(3) CrPC by Magistrate without taking cognizance under S. 190(1)(a) is an error in law; correct approach explained

[Pranati v. State of W.B., 2020 SCC OnLine Cal 132, decided on 21-01-2020]

[Delhi High Court]

Del HC | If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Court answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]

[Himachal Pradesh High Court]

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

[Sachin Sharma v. Palvi Sharma,  2020 SCC OnLine HP 2109, decided on 26-10-2020]

[Chhattisgarh High Court]

Chh HC | S. 320 CrPC is no bar to the exercise of power of quashing of FIR in matrimonial matters; Petition allowed

[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]

[Allahabad High Court]

All HC | Principle contained in S. 141 of NI Act is not applicable to a sole-proprietary concern, firm need not be arraigned as an accused while making a claim for recovery under S. 138 of the NI Act

[Dhirendra Singh v. State of U.P., 2020 SCC OnLine All 1130, decided on 13-10-2020]

[Karnataka High Court]

[MV Act] Kar HC | Will the insurance company be liable for compensation if the vehicle was insured as ‘private vehicle’ but plyed on ‘hire’ at the time of accident? HC decides

[United India Insurance Co. Ltd. v. Basavaraj, 2020 SCC OnLine Kar 1652, decided on 02-11-2020]

[National Consumer Disputes Redressal Commission]

NCDRC | Can a consumer claim refund of principal amount if flat not delivered on time? Commission untangles two fundamentals for Buyer — Consumer

[Ankur Goyal v. Rise Project (P) Ltd., 2020 SCC OnLine NCDRC 465, decided on 14-10-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.

Background

On 27 August 2020, a Muslim woman lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019, alleging that in December 2019, her husband pronounced talaq three times at their house. Following this, he entered into a second marriage.

The Kerala High Court, on November 2, 2020, while declining to grant anticipatory bail observed:

“If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife when the matrimonial relationship with the de facto complainant is in existence.”

However, the order of the High Court contained no reason why the appellant, i.e. the mother-in-law of the complainant, was being denied anticipatory bail.

The first petitioner is the spouse of the complainant and second petitioner is the mother of the first petitioner. Supreme Court had, on December 3, 2020, refused to entertain the Special Leave Petition by the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

The Court was now called upon to decide whether the High Court was right in refusing to grant anticipatory bail to the appellant i.e. the mother-in-law of the complainant.

Analysis

Who is punishable for the offence of pronouncement of triple talaq?

The Muslim Women (Protection of Rights on Marriage) Bill 2019 was introduced in the Parliament to give effect to the ruling of this court in Shayara Bano v. Union of India, (2017) 9 SCC 1, and “to “liberate” Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men.”

The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment.

“Thus, on a preliminary analysis, it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man.”

Does Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC?

Under clause (c) of Section 7, Parliament has provided that no person who is accused of an offence punishable under the Act shall be released bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom the talaq is pronounced, is satisfied that there are reasonable grounds for granting bail.

The statutory text indicates that Section 7(c) does not impose an absolute bar to the grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced.

Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person.

“This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married Muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused.”

Further, the legislature has not expressly barred the application of Section 438 of CrPC. The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained certain other statutes which expressly exclude the provisions of Section 438 of the CrPC.

Hence, on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, it was held that there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman.

[Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, order dated 17.12.2020]

*Justice Dr. DY Chandrachud has penned this order. Read more about him here. 

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

For Second Respondent i.e. the complainant: Senior Advocate V. Chitambaresh, and advocate Harshad V. Hameed,

For State of Kerala: Advocate G. Prakash

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted bail to a person from whom LSD drops of LSD solution and charas was recovered on not finding the same to be under the commercial quantity.

On personal search, 10 square pieces of papers containing LSD drops of LSD solution were found with the applicant. Subsequently, on the same day, 13 pieces of brown colour papers each containing LSD drops of LSD solution were also recovered. Additionally, 970 gms of charas, kept in the cupboard was recovered.

In view of the above, the applicant was apprehended for the offences punishable under Sections 8(c), 20(b), 22(c) and 29 of the Narcotics Drugs and Psychotropic Substances Act.

Applicant submitted that the quantity of contraband recovered was less than the ‘commercial quantity’ and therefore rigors of Section 37 of the NDPS Act cannot be made applicable in his case.

Further, he added since the trial is also over, his presence can be secured by imposing certain conditions.

Analysis and Decision

Bench observed that the most common form of LSD is a drop of LSD solution dried into a piece of paper or gelatin sheet, pieces of blotting papers which release the drop when swallowed/consumed.

Process of drying LSD solution on a piece of paper, merely facilitates consumption of drug. The said process neither changes the substance of the drug nor its chemical consumption.

Court opined that once the piece of paper is swallowed it causes the release of the drug but since that paper only carries drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither “preparation”, within the meaning of Section 2(xx), nor a “mixture” within the meaning of the NDPS Act.

Bench dismissed the findings of Judge that weight of the paper containing dried LSD drops of LSD solution is required to be accounted while determining its quantity; whether small or otherwise.

It was also noted that the Chemical Analyser’s report had shown the quantity of LSD drops solution to be 0.4128 milligrams, which was below 0.1 gm of commercial quantity. Hence, the rigors of Section 37 of the NDPS Act would not be applicable in the instant case.

Since the applicant had no criminal antecedents, hence he was admitted to bail with certain conditions. [Hitesh Hemant Malhotra v. State of Maharashtra, Criminal Bail Application No. 352 of 2020, decided on 01-12-2020]

Advocates who appeared in the matter:

Advocate for the applicant: Suhas Oak i/by Vinod Utekar

APP for the State: Prajakta P. Shinde

Also Read:

Unmasking the Narcotics Drugs and Psychotropic Substances Act, 1985 [Explainer on certain provisions]

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court failed to  to evaluate even prima facie of the most basic issue thereby refusing bail to the accused, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has reminded the High Courts and District Courts of their duty to ensure human liberty.

In the judgment running into 55-pages, here is what the Court said:

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“Our district judiciary is wrongly referred to as the “subordinate judiciary‘. It may be subordinate in hierarchy, but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them.”

High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency.”

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]

*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here. 

Also read: Anvay Naik Suicide|High Court abdicated it’s duty by failing to make prima facie evaluation of FIR. Here’s why SC granted interim bail to the accused

SC grants interim bail to 3 accused in Anvay Naik suicide case. Calls Bombay HC order erroneous

Case BriefsSupreme Court

“Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.”

Supreme Court: After Feroz Mohammad Shaikh, Arnab Goswami and Neetish Sarda were granted interim bail on November 11, 2020 in relation to the alleged suicide of Anvay Naik and his mother Kumud Naik, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has in it’s detailed judgment held that the Bombay High Court, in it’s 56-pages-long verdict, failed to evaluate even prima facie of the most basic issue.

“The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task.”

The Court had, in order dated 11.11.2020 said that

“… the High Court was in error in rejecting the applications for the grant of interim bail.”

Background

The matter relates to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ The deceased had allegedly left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues. Arnab Goswami was arrested on 4 November 2020 under Sections 306 and 34 of the IPC. It was alleged that Goswami, the owner of ARG, had not paid an amount of Rs. 83 lacs and there was an outstanding amount of Rs. 4 crores from Feroz Shaikh and Rs. 55 lacs from Nitesh Sarda.

The Bombay High Court had, on November 9, held that no case for release of accused was made out.

It was Goswami’s case before the Supreme Court that his arrest was rooted in malice in fact, which was evident from the manner in which he has been targeted for his news broadcasts criticizing the Maharashtra government and the Maharashtra police. Several incidents leading up to the arrest were highlighted including FIRs lodged against him for alleged defamatory news show telecast on April 21 in connection with the Palghar mob-lynching case where he attacked Sonia Gandhi for orchestrating the incident; issuance of a letter by the ―Shiv Cable Sena to cable operators across Maharashtra asking them to ban the telecast of Republic TV; TRP Scam case, etc.

Analysis

Jurisdiction of the High Court under Article 226 and Section 482 CrPC

Bombay High Court, relying on decision in State of Telangana vs Habib Abdullah Jeelani, (2017) 2 SCC 779, had declined to even prima facie enquire into whether the allegations contained in the FIR, read as they stand, attract the provisions of Section 306 read with Section 34 of the IPC, stating that since the petition was being posted for hearing on 10 December 2020, it was not inclined to enquire into this aspect of the case and the appellant would be at liberty to apply for regular bail under Section 439.

The Court, hence, discussed the true import of Habib Jilani decision and said that the said decision arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriate interim orders as thought apposite in law.

“Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out.”

Prima Facie evaluation of the FIR and the grant of bail

While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court.

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar considerations

Applying the factors to the case at hand, the Court noticed that a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses.

“If the High Court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 of the IPC. The failure of the High Court to do so has led it to adopting a position where it left the appellant to pursue his remedies for regular bail under Section 439. The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage.”

Human liberty and the role of Courts

“In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty.”

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“Our district judiciary is wrongly referred to as the “subordinate judiciary‘. It may be subordinate in hierarchy, but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them.”

High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency.”

Direction

The interim protection which has been granted to the above accused by the order dated 11 November 2020 shall continue to remain in operation pending the disposal of the proceedings before the High Court and thereafter for a period of four weeks from the date of the judgment of the High Court, should it become necessary for all or any of them to take further recourse to their remedies in accordance with law.

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]

*Justice Dr. DY Chandrachud has penned this judgment 

For Arnab Goswami: Senior Advocate Harish N. Salve

For Respondents: Senior Advocates Kapil SIbal, Amit Desai and CU Singh

For Feroz Shaikh: Senior Advocate Gopal Sankaranarayanan

For Neetish Sarda : Senior Advocate Mukul Rohatgi

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present petition, reiterated the scope and power of the High Court in entertaining a successive bail application, in addition to, the general principles governing the same.

Brief Facts

Facts of the case are enumerated herewith;

  1. That the petitioner was found in the possession of contraband substances weighing around 25kgs.
  2. That the petitioner was subsequently booked under Sections 8 and 15 of the NDPS Act and challan was thereby filed before the Court of Principal Sessions Judge, Ramban.
  3. That an application was later moved before the Court of Principal Sessions Judge, Ramban, and the same was rejected by the Court vide order dated 20-03-2020.
  4. That being aggrieved of the said order, the petitioner has filed the instant petition, for grant of bail on the grounds that the contraband allegedly shown to be recovered from the possession of the petitioner is an intermediate quantity, and therefore the rigor of Section 37 NDPS Act will not apply to the present case.

Observations

In pursuance of its decision, the Court made the following observations;

With respect to the jurisdiction of the Court on the present Bail Application, the Court said, “The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.” Reliance was placed on Gurcharan v. State (Delhi Administration), (1978) 1 SCC 118 and Devi Das Raghu Nath Naik v. State, 1987 Crimes Vol. 3 Page 363 in this regard.

Moreover reiterating the objective of granting bail, the Court observed, “It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.”

Narrowing down to the facts of the present case, the Court said, “As already noted, the quantity of contraband allegedly recovered from the accused does not fall within the parameters of ‘commercial quantity’ and in view of the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affect the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner is in custody for more than eleven months and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail.”

Decision

Releasing the petitioner on bail, the Court said that the discretionary power of granting bail cannot be exercised on the basis of public sentiments as the guilt of the petitioner is yet to be proved. The Court further imposed necessary conditions while allowing the present application.[Manzoor Ahmad v. Union Territory of J&K, 2020 SCC OnLine J&K 570, decided on 09-11-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: After a day-long hearing in the matter relating to the arrest of Republic TV Editor-in-Chief Arnab Goswami, Feroz Mohammad Shaikh and Neetish Sarda in relation to the alleged suicide of Anvay Naik and his mother Kumud Naik, the vacation bench of Dr. DY Chandrachud and Indira Banerjee, JJ has directed the release of all three on interim bail.

The Court had further directed that all three will be released subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. It also directed them to cooperate in the investigation of the matter and not to make any attempt to interfere with the ongoing investigation or with the witnesses.

The matter was listed on urgent basis during Diwali break of the Supreme Court, appealing against the Bombay High Court decision dated 9 November 2020, by which the applications for the grant of the interim bail moved by the appellants pending the disposal of their writ petitions were rejected.

The Court said,

“… the High Court was in error in rejecting the applications for the grant of interim bail.”

While the detailed judgment with reasons will follow, the Court has asked the jail authorities and the Superintendent of Police, Raigad to ensure the compliance of this order.

The matter relates to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ The deceased had allegedly left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues.

The Bombay High Court had, on November 9, held that no case for release of accused was made out.

[Arnab Manoranjan Goswami v. State of Maharshtra,  2020 SCC OnLine SC 931, order dated 11.11.2020]

Read the detailed analysis of the Bombay High Court judgment here.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and M.S. Karnik, JJ., while denying interim protection to Arnab Goswami in a case of alleged abetment to suicide discussed the essence of “Power of Superintendence”.

The instant application was filed for interim protection in a criminal petition filed for a Habeas Corpus to produce the petitioner who had been illegally arrested and wrongfully detained by the Alibaug Police Station in regard to an FIR registered under Sections 306 and 32 of the Penal Code, 1860 despite a closure report being filed.

Petitioner alleged gross abuse of State’s power by respondents in effecting his arrest and consequent alleged illegal detention.

Senior Advocate Harish Salve for the petitioner, Senior Advocate Amit Desai for State and Senior Advocate Shirish Gupte appearing for the victim.

Senior Advocate Harish Salve contended that not only the arrest is a malafide action and abuse of the State’s power, but the arrest is ex-facie illegal in view of the closure report filed before the Magistrate.

Re-investigation commenced by respondents was being conducted without any permission of the Magistrate under Section 173(8) of the Criminal Procedure Code, 1973.

Court shall exercise its extraordinary powers under Article 226 of the Constitution of India and inherent jurisdiction under Section 482 CrPC by protecting the petitioner.

Reference to the FIR | Alleged Suicide

 The FIR dated 05-05-2018 was in relation to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ It was alleged that the deceased had left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues. Officers of the Alibaug Police Station visited the petitioner’s office informing him about the unfortunate incident and stated that the suicide note had the name of the petitioner.

Senior Advocate Salve submitted that in blatant violation of the fundamental rights to life and personal liberty of the petitioner and his dignity, the petitioner was arrested. He was forced out from his residence with police officials barging into his house and dragging him into the police vehicle. Even his son was assaulted in this process.

Brazen attempt of vendetta politics

Senior Advocate urged that once the case was closed by Mumbai Police in the year 2019, which report was also accepted by the Chief Judicial Magistrate, the same is being reinvestigated with the sole purpose of misusing the power, concocting facts and forcefully arresting the petitioner in a prima facie act of revenge and vengeance for his news coverage which questioned those in power in the State of Maharashtra.

He added to his submission that there is a desperation on the part of the political dispensation to falsely implicate the petitioner in the said case and to reopen the matter.

Since there was no direct involvement of the petitioner with the deceased, the ingredients to attract the offence of abetment were also absent.

Cases relied upon by the Senior Advocate to support his submissions were:

Arjunan v. State, (2019) 3 SCC 315

Mohan v. State, (2011) 3 SCC 626

SS Cheena v. Bijay Kumar Mahajan, (2010) 12 SCC 190

Amlendu Pal v. State of West Bengal, (2010) 1 SCC 707

Gurcharan Singh v. State of Punjab, Supreme Court of India Criminal Appeal No. 40 of 2011

Rajesh v. State of Haryana, 2019 SCC OnLine SC 44

Adding to his contentions, Senior Advocate also submitted that once a case is closed by the Chief Judicial Magistrate, then the Investigating Officer has no power to re-investigate the matter unless the order granting ‘A’ summary by Chief Judicial Magistrate is set aside.

If re-investigation itself is on an illegal premise, the detention of the petitioner has to be declared as illegal.

Mr Salve further contended that the manner in which false cases are being registered against the petitioner and his channel and the apparent desperation of the political dispensation to implicate the petitioner in false cases, would justify an exercise of power of the High Court to stay the investigation and prevent the abuse of process and promote the ends of justice.

Analysis, Law and Decision

In the light of the law laid down by the Supreme Court in the case of State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC 745, the question as to whether a Writ of Habeas Corpus could be maintained in respect of a person, who is in police custody pursuant to the remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, is no more res integra.

Bench referred to the decision of Supreme Court in Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266, wherein the High Court had released the original petitioners on bail while exercising writ jurisdiction. Supreme Court had allowed the appeal filed by the Serious Fraud Investigation Office and original writ petitioners and directed to surrender before the Special Court.

Adding to its analysis, Court stated that the issue as to the exercise of jurisdiction by the High Court in a proceeding relating to the quashing of First Information Report has been authoritatively dealt with in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779. In the cited case, parameters as to the circumstances and situations where the Court’s inherent power can be exercised were clarified.

Bench in the instant matter opined that the High Court has jurisdiction to quash the investigation and pass appropriate interim orders as though apposite law. Though, powers are to be exercised sparingly and that too, in rare and appropriate cases and in extreme circumstances to prevent abuse of process of law.

“The legislature has provided specific remedy under Section 439 CrPC for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under Section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while the entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure.”

Power of Superintendence

Court stated that in light of the relevant provisions, State Government in exercise of its powers directed the local Crime Investigation Branch, Raigad—Alibag to conduct further investigation of the said offence.

Supreme Court in its’ decision of State of Bihar v. J.A.C Saldanha,, (1980) 1 SCC 554  explained the concept of power of superintendence:

“17. The High Court construed the expression ‘superintendence’ in S. 3 of the Act to mean ‘general supervision of the management of the police department and does not vest the State Government with authority to decide what the police alone is authorised to decide’. There is nothing in the Act to indicate such a narrow construction of the word ‘superintendence’. Nothing was pointed out to us to put a narrow construction on this general power of superintendence conferred under the Act on the State Government and there is no justification for limiting the broad spectrum of power comprehended in power of superintendence. Accordingly superintendence would comprehend the power to direct further investigation if the circumstances so warrant and there is nothing in the Code providing to the contrary so as to limit or fetter this power.”

Hence, in view of the above, Court stated that the State Government can always direct a further investigation to the police officers concerned.

Rule 219 of the Bombay Police Manual, 1959

Clause (3) of the above stated Rule would indicate that “A” summary is granted in a case where the offence is committed but the same is undetected, in that, where there is no clue whatsoever about the culprits or property or where the accused is known but there is no evidence to justify the same for being sent to the Magistrate (trial).

In the instant case, jurisdictional Magistrate classified the case and issued “A” summary in this case. Consequent upon receiving instructions pursuant to the complaint made by the victim to the superiors, the local Crime Branch intimated the jurisdictional Magistrate that they wanted to the carry out further investigation in the offence.

“A distinction also exists between further investigation and reinvestigation. It is observed that whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not.”

Court holds that the Magistrate was intimated about the further investigation and even statements were recorded under Section 16 CrPC after obtaining permission from Chief Judicial Magistrate.

Hence further investigation cannot be held as illegal and without seeking permission of the Magistrate. Same is in consonance with the power conferred by Section 173(8) CrPC.

Informant had filed the representation to the State Government and police officers for redressal of her grievance.

Bench further considered the decision of the Supreme Court in Vinubhai Haribhai Malaviya v. State of Gujarat, 2019 SCC OnLine SC 1395 considered the fact situation as to whether post-cognizance, the Magistrate is denuded of is powers of further investigation.

In the instant matter, post-filing of “A” summary, an intimation was given to the Magistrate by the Investigating Officer that they were carrying out further investigation whereafter, even the statements under Section 164 of the Code of Criminal Procedure were recorded by the Magistrate concerned pursuant to the directions issued by the Chief Judicial Magistrate.

“The continuous persuasion of the State Government by the informant for redressal of her grievance since her two family members had committed suicide, and in the aforesaid background, the concerned Investigating Officer, after intimating the Magistrate, commences the further investigation, cannot be said to be irregular or illegal by any stretch of imagination.”

Stay the Investigation

Supreme Court’s decision in State of Haryana v. Bhajan Lal,  1992 Supp (1) SCC 335, was referred, wherein it was held that,

“That the core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether that the field of investigation of any cognizable offence is exclusively within the domain of the investigation agencies over which the Courts cannot have control and have no power to stiffle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.”

(emphasis supplied)

In such view of the matter and since the writ petitions have been posted for hearing on 10-12-2020, Court declined to stay the investigation.

Therefore, the Bench held that no case for release of the applicant was made out. Petitioner has an alternate and efficacious remedy under Section 439 CrPC to apply for regular bail. [Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine Bom 2615, decided on 09-11-2020]

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., while denied bail on the light of giving divorce in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Applicant sought anticipatory bail for cases registered under Sections 377, 498 A, 323, 504, 506 of Penal Code, 1860, Section 67 of the Information Technology Act and Section 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The victim in her FIR stated that the applicant had married twice earlier and had 5 children from his first wife. On obtaining a divorce from the first wife, he got married to the second wife.

When informant got married to the applicant, her mother’s gold was to her and Rs 3,50,000 were spent during the marriage. Further, the applicant gave some intoxicating drink to the first informant and in that situation took some photographs and recorded video fo the informant.

In the FIR, it was mentioned that the applicant had sex with her in October 2018. The applicant had inserted aluminium rod causing bleeding in her private parts as he didn’t want a child from this marriage. 

It was also alleged that the applicant used to harass the victim and used to ask her to bring money from her parental house. On one particular day, the applicant told the first informant to do all the work in the house, which the informant refused to do so and hence she was assaulted by the applicant. On the same day itself, the applicant gave her talaq.

Informant was later left at her parental house and was threatened that all he would make all the videos and photographs viral.

In view of the above, FIR was lodged.

Misbaah Solkar, Counsel for the applicant, R.M. Pethe, APP for the State and Adil Khatri, Counsel for the complainant.

Decision

Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which reads as follows:

“no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person”.

Bench found no reasonable ground for granting anticipatory bail to the present applicant. Informant’s counsel that she endured all the harassment over some period to save her marriage was also not improbable.

Considering the allegations, the applicant does not deserve the protection of anticipatory bail. The fact that the applicant was left at her parental house and her number was blocked, all of this corroborates to the allegations that, he had divorced informant illegally in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Allegations of inserting a rod in informant’s private parts and capturing indecent photos and videos require custodial interrogation.

Hence no anticipation bail was granted. [Ebrahim Mohd. Iqbal Lakdawala v. State of Maharashtra, Anticipatory Bail Application (ST) No. 2224 of 2020, decided on 21-10-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra J., allowed the application and granted bail in the matter concerning offence under Protection of Children from Sexual Offences Act, 2012 (POCSO).

The facts of the case are such that the father of the prosecutrix lodged FIR informing that his daughter left the house in the afternoon and did not return till evening informing over his mobile that she will not be returning in the night. Later, in her Section 164 Criminal Procedure Code,1973 statement the prosecutrix stated that she is in love with the applicant for about 6-7 months prior to the incident and had gone with him of her own and stayed in the house of the applicant’s maternal uncle. In her diary statement, she alleged that first sexual intercourse happened on 14-5-2020 and thereafter, on 5-6-2020 thereby stating that she is having an affair with the applicant. Hence the applicant was arrested for the offence under Section 363, 366 & 376 of the Indian Penal Code and Sections 4, 6 of the Protection of Children from Sexual Offences Act, 2012. Aggrieved by this, instant bail application has been filed before the Court.

The submissions made before the Court are that the prosecutrix and her father has no objection if the applicant is allowed bail.

The Court observed that the prosecutrix is less than 16 years of age, however, considering the affair and no objection of herself and her father during the hearing of the bail application, bail was granted.

In view of the above, the application was allowed and disposed off.[Diwakar Yadav v. State of Chhattisgarh, 2020 SCC OnLine Chh 491, decided on 02-11-2020]

Arunima Bose, Editorial Assistant has put this story together