Bail

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J., allowed the bail application of the applicant-accused in connection with the FIR registered for offence punishable under Sections 120-B, 420, 409, 467, 468 & 34 of the Penal Code, 1860.

The facts in the present case are such that the complainant Poonamchand lodged a written complaint against the BNP Group of Companies on 01-06-2016 alleging that he had invested money in various schemes of the aforementioned company with the assurance of certain inflated returns. However, even after the passing of the maturity date, the amount has not been returned to him. Acting on the complaint, police registered an FIR against 25 people including the owner, director and several employees. The applicant, being an employee has also been named and arrested.

Counsel for the applicant, Pramod C. Nair has submitted that the applicant was an employee of the company and he along with his family members had invested massive amounts of money in similar schemes with the expectation of assured and handsome returns. When the amounts were not returned even after maturity, the applicant lodged an FIR on 10-10-2015, much earlier than the FIR that has been filed against him. The applicant himself is a victim of cheating at the hands of the company. The applicant was never absconding and the police made no efforts to arrest him. It is also submitted that other named accused in the present case have already been granted bail by this Court or the trial court. In the event when there is no specific allegation against the applicant nor has there been any recovery from him, the applicant ought to be enlarged on bail. The investigation is also complete and the charge sheet has been filed, warranting no custodial interrogation.

Counsel for the respondent, Saumya Maru has vehemently opposed the present application.

The Court upon careful perusal of the facts, circumstances and the arguments advance observed that it is clear that the victim himself has been duped by the company making him a victim. The applicant and his family have also deposited huge amounts, the return of which has been jeopardized now. The main accused has been granted bail and the facts have not attributed any specific role against the applicant.

In view of the above, the Court has allowed the present application to enlarge the applicant on bail.[Lalit v. State of M.P., 2020 SCC OnLine MP 1990, decided on 16-09-2020]

Case BriefsHigh Courts

Jharkhand High Court:  A Division Bench of H.C. Mishra and Rajesh Kumar, JJ., dismissed the appeal being devoid of merits.

The facts of the case are that secret information was received by the police regarding the extortion of levy by the banned terrorist organization Tritya Prastuti Committee, in the coal region of Amrapali / Magadh Project of Central Coalfield Ltd., from the contractors, transporters, D.O. holders and coal traders. Subsequently, on the investigation, the house of one Binod Kumar Gupta was raided and amount of Rs 91,75,890/- with two mobile phones recovered and on whose disclosure the present appellant’s house was raided and Rs 57, 57,710/- and four cell phones were recovered. Pursuant to this, a case was instituted under Sections 414, 384, 386, 387 and 120-B of the Penal Code, 1860, Sections 25(1B) (a), 26 & 35 of the Arms Act, 1959 and Section 17(1) (2) of the Criminal Law Amendment Act and the appellant was thereby arrested. Thereafter, he filed a bail application before Judicial Commissioner-cum- Special Judge (NIA), Ranchi which was rejected. Aggrieved by which, the instant appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008 seeking bail.

Counsel for the petitioners R. S. Mazumdar and Kumar Basant Narayan submitted that the appellant is innocent and the money recovered by him is relating to his business which has a turnover of Rs 1 crore even on the day of arrest and therefore he has been falsely implicated. It was further submitted that the appellant was already on bail for the same occurrence/offence but when the NIA added offences, under the Unlawful Activities (Prevention) Act the appellant was again taken into custody, and hence he ought to have been enlarged on bail.

Counsel for the respondents Rohit Ranjan Prasad presented the evidence that clearly established the involvement of the appellant in the present matter. The materials placed on record by the NIA after investigation prima facie declared his close association with the banned terrorist organization and being actively involved in extortion. It was further submitted that the appellant also has a criminal history and hence the impugned order was correct and not illegal.

The Court observed that there is a clear bar in granting bail, under Section 43-D (5) of the Unlawful Activities (Prevention) Act, once the accusation is found to be prima facie true and on this ground, the appellant does not deserve the privilege of bail.

In view of the above, bail was rejected and the appeal dismissed.[Pradeep Ram v. Union of India, 2020 SCC OnLine Jhar 792, decided on 14-09-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J., while addressing the present petition observed the following:

“The preventive detention laws cannot be invoked as an easy way method bypassing the ordinary law and if a detention order is passed, it is very much necessary for the detaining authority to apply its mind and arrive at a conclusion that ordinary law is not capable of acting deterrent against the detenu and thus, detention order needs to be passed.”

Commissioner of Police had passed a detention order against Mohd. Nawaz in the exercise of powers under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Amendment Act No.13 of 2018) which has been challenged as being illegal and arbitrary.

Counsel for the petitioner was Pendya Swathi and T. Srikanth Reddy, Government Pleader for Home for the respondents.

It was noted that the detaining authority considered five cases as grounds for his detention.

Courts concerned had granted conditional bails in all the 5 five cases wherein the bail petitions by the detenu were moved.

Prosecution opposed the grant of bail even after that the Courts concerned granted the detenu conditional bails.

If the detaining authority feels that even after strongly opposing the bail, the concerned Courts have granted bail, it is always left open for the authorities to move an application for cancellation of bail either before the same Court or higher Court.

Further, the Court stated that the State cannot take advantage of its own lapses, whereby, on one hand, the State does not effectively oppose the bail application or seeks cancellation of bail and on the other hand, the State finds an easy way method to pass detention order by invoking preventive detention laws.

Supreme Court’s decision in Sudhir Kumar Saha v. Commr. of Police, Calcutta, (1970) 1 SCC 149, it was observed that,

“…The power to detain is an exceptional power to be used under exceptional circumstances. It is wrong to consider the same, as the executive appears to have done in the present case, that it is a convenient substitute for the ordinary process of law.”

Bench also observed that an order of detention has to be resorted to as an extreme and last step only when attempts made by the authorities to deal with and prosecute the detenu under ordinary law do not yield results.

Court stated that the crimes mentioned against the detenu relate to specific individuals/victims and come within the ambit of maintenance of law and order and not public order.

Hence the impugned detention order is unsustainable and was therefore set aside.[Mohd. Jaffar v. State of Telangana, 2020 SCC OnLine TS 1030, decided on 03-09-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Division Bench of Ali Mohammad Magray and Sanjay Dhar, JJ. rejected the bail plea and upheld the order of the Special Judge.

The present appeal was under the National Investigation Agency Act was directed against an order of the Special Judge Designated under the NIA Act, whereby petition of the appellants/accused of grant of bail by default was rejected.

It is averred in the appeal that the appellant 1 was arrested for offences under Section 302, 307 RPC, 7/27 Arms Act and ULA(P) Act. It is further averred that one of the appellant’s had completed 177 days in custody whereas the other two had completed 170 days in custody in connection with the said offences. It is also averred that, the appellants/accused were admitted to bail but in spite of that, they were not released from the custody. It was further contended that the appellants were taken into preventive custody under Public Safety Act and under preventive custody in terms of Section 107 of CrPC respectively.

Briefly stated case of the prosecution against the appellants/accused was that they had transported three militants from Rawalpora to the BSF Camp located at Gogoland and these three militants launched a suicide attack on the BSF camp leading to the death of ASI B. K. Yadav.

The Court pointed out that in cases relating to the investigation of offences under the provisions of ULA(P) Act, even if it is not possible to complete the investigation in such cases within a period of ninety days, the Court, if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the reasons for the detention of the accused beyond the period of ninety days, can extend the said period up to 180 days. It means that the right to claim bail in default will accrue to the accused facing investigation relating to offences under ULA(P) Act only upon expiry of 180 days from the date of his first arrest.

The Court looked at a decision wherein the question whether custody in a particular case for investigation can be treated as custody in another case, came up for consideration before the Supreme Court in the case of CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 wherein it was held that if one case is registered against the accused in which during the course of the investigation it is found that he has committed more than one offence then it will be treated to be one investigation and for each offence a separate police remand cannot be sought. But in case it is a different offence which has been committed by him then it will be a separate case registered and a separate investigation will be taken up and for that, the detention by the accused in the previous case cannot be counted towards a new case or different case registered against the accused.

Applying the aforesaid ratio of the law laid down by the Supreme Court to the facts of the instant case, the Court held that the period of custody undergone by the appellants cannot be added to the period of custody which they have undergone in. Furthermore, the appellants/accused did not undergo custody of 180 days. Therefore, their right to claim default bail in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure read with Section 43D of ULA(P) Act in the eyes of the Court did not accrue to them. [Mohammad Amin Illahie v. J&K,  2020 SCC OnLine J&K 456, decided on 09-09-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., allowed an application that was made in order to reduce the amount of sureties for bail. The petitioner was in judicial custody under Sections 8/20 of the Narcotics Drugs and Psychotropic Substances Act, 1985, had challenged the order passed by the Special Court Dehradun, by which, his request to reduce the amount of sureties had been rejected.

The applicant was enlarged on bail by this Court, but he could not get his freedom back because he could not arrange for sureties. D.A.G. for the State, V.K. Gemini, had argued that applicant was a resident of Uttar Pradesh and a commercial quantity of charas was recovered from him. If he was released on bail, he may not appear. But after orders of the Court he was granted bail he was required to submit sureties by the concerned court, but as stated, he could not manage the sureties consequently he moved an application from jail that the amount of sureties may be reduced, but this application was rejected by the court concerned. Thus, the instant application was filed.

The Court while relying on the judgment in Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47, quoted that,

“It is interesting that American criminological thinking and research had legislative response and the Bail Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made certain observations at the signing ceremony:

Today, we join to recognize a major development in our system of criminal justice : the reform of the bail system.

This system has endued-archaic, unjust and virtually unexamined -since the Judiciary Act of 1789.

The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.

How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty.

He does not stay in jail because any sentence has been passed.

He does not stay in jail because he is any More likely to flee before trial.

He stays in jail for one reason only-because he is poor . . . .”

The Court while reducing the amount of the sureties disposed of the application observed that they cannot deny freedom to a person just because he is poor.[Ajeet Pal v. State of Uttarakhand, 2020 SCC OnLine Utt 537, decided on 10-09-2020]

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Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi J., granted bail and directed the petitioner company to pay the amount in accordance with the manner indicated.

The facts of the case as per the FIR lodged alleging charges under Sections 406/420/120-B of Penal Code, 1860 read with Section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (O.P.I.D.) are that, one Biswa Bhushan Biswal husband of the petitioner herein, 6-7 years back approached the informant and introduced himself as a land broker doing business in plotting, land development, construction of buildings and flats through his company B. N. Infra Services Pvt. Ltd. where petitioner is the Managing Director. Br. Biswal insisted the informant to invest in the company and promised him assured returns vide agreement dated 19-5-2014, pursuant to which disbursal of Rs 1,89,00,000 was made by the informant. Biswas defaulted with return payments and consented to give one of his plots having Plot No. 3/441 to the informant in case of further default in payment vide a written letter. The said plot was later revealed to be already sold to someone else, subsequent to which another agreement dated 25-01-2017, wherein Biswas committed to pay Rs 1,76,00,000 out of which Rs 1 Lac was paid at the time of signing. The petitioner issued 10 cheques each amounting to Rs 1,50,00,000 which were dishonored by the bank due to insufficient funds. Thereafter FIR was lodged and during the investigation, Mr. Biswal and petitioner were arrested and later filed for bail which was rejected by Trial Court. Aggrieved by the same, an instant bail petition has been filed for seeking regular bail under Section 439 CrPC, 1973.

Counsel for the petitioner D.P. Dhal submitted that the petitioner is a housewife and Biswas is responsible for managing the day to day affairs of the company. It was further submitted that the company is a real estate company and hence comes within the ambit of Real Estate Regulation & Development Act, 2016 and Odisha Real Estate (Regulation and Development) Rule, 2017, hence Section 6 of the O.P.I.D. Act will not be attracted. He also prayed for the relief of bail to be granted.

Counsel for the respondent opposed all the arguments and stated that the instant case makes out for a clear offence of cheating and fraud and provisions of the O.P.I.D Act will squarely apply in the present case.

The Court after hearing both sides observed that characteristics of the agreement entered into between the parties is in the nature of an “agreement to sale” of a flat that was to be constructed by the defaulting petitioners company and hence is a simple flat buyer agreement. It was also observed that the defaulting company is registered under the Companies Act, 1956 and its MOA and AOA clearly states that it is not a “Financial Establishment” instead comes under the purview of the Real Estate (Regulation and Development) Act, 2016.

The Court also observed that it is imperative that the background of the Act needs to be understood before dealing with the legislation.

Whether the instant case falls under O.P.I.D Act or not?

Section 2 (d) of O.P.I.D Act defines “Financial Establishment” as a company registered under the Companies Act carrying on the business of receiving deposits under any scheme or arrangement or in any other manner.

It clearly states that in MOA and AOA it has to be mentioned that the primary business is receiving “deposits” pursuant to any “scheme or arrangement”. On a conjoint reading of Sections 2(d), 3 and 5 of O.P.I.D Act it is clear that the business should be in the nature of accepting or receiving “deposits”.
Section 10 of O.P.I.D Act provides for attachment of the Financial Establishments in case of default payment. Hence the operation of Section 10 of the Act would result in a piquant situation where one lone buyer while claiming refund of his deposit would cause the attachment of the other flats so constructed, irrespective of the fact as to whether such flats have been transferred to other transferees by the builder and corresponding rights thereupon have been created or not.

In case of flat buyer agreement, it provides for the consideration to be paid for the flat/apartment purchased which are sale transactions and are mandatorily registerable under the relevant laws wherein the question of the return of deposit or payment of interest on such deposits does not arise.

The Court relied on various judgments titled Viswapriya [India] Limited v. Government of T.N, 2015 SCC OnLine Mad 10349 and Prasan Kumar Patra v. State of Odisha, 2019 SCC OnLine Ori 93 and held that an inevitable situation will invariably arise when the provisions of the O.P.I.D Act are invoked in real estate transactions especially where a builder has constructed multiple flats/apartments. This kind of situation could not have been the intention of the legislature considering the practices, problems and complexities involved in the real estate sector. Hence the instant case is a classic example of a transaction gone awry which has been strenuously given the color of a criminal offence.

The Court also relied on a judgment titled Tetra Pak India (P) Ltd. v. Tristar Beverages (P) Ltd., 2015 SCC OnLine Bom 4707 and held that though a case of breach of trust may be both a civil wrong and a criminal offence there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence and giving colour of criminal case to dispute which is otherwise purely civil and commercial in nature would tantamount to an abuse of the process of court.

The Court further directed the State Government to give wide publicity to the provisions of the said RERA Act, 2016 in order to injunct any such unnecessary litigations arising out of builder-buyer relations.

In view of the facts and overall circumstances, the bail was granted.[Mahasweta Biswal v. State of Odisha, 2020 SCC OnLine Ori 633, decided on 25-08-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi J., granted bail on grounds of non-service of notice on the accused which is violative of the most cardinal principle of natural justice.

The facts of the case are that while the informant in the instant case along with his staff was on patrolling duty they detained the accused on suspicion and discovered eleven polythene packets containing 270kg 200gms of Ganja. They were charged under Section 20(b)(ii) of the N.D.P.S. Act and subsequently arrested. The Petitioner along with other accused persons were forwarded to the Court of Sessions Judge-cum-Special Judge, Koraput, Jeypore who directed S.I. Sima Pradhan of Jeypore Sadar P.S to commence investigation. An application for extension of the submission of charge sheet was filed which was subsequently granted through ex parte proceedings without issuing notice to the accused persons. Aggrieved by the same, the present petition for grant of bail under Section 439 CrPC, 1973 has been preferred before the court.

Counsel for the petitioner Jyotirmaya Sahoo and S.K Pattnaik submitted that the court has erred in passing the ex parte order which is in violation of Section 36 A(4) of the N.D.P.S. Act which mandates that an opportunity of hearing must be given to the accused before granting an extension for a further period of 60 days for completing the investigation. Due to this violation, the petitioner is entitled to be enlarged on bail.

Counsel for the respondent Tapas Kumar Praharaj submitted that the Petitioner is a resident outside the state hence there are higher chances of fleeing from justice and considering the nature and gravity of the offence, the Petitioner ought not be released on bail.

 Seeking extension for default in filing of chargesheet vis-à-vis grant of bail

In Bipin Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718; Pappu Ram v. State of Rajasthan, 2017 SCC Online Raj 3418;  Arvind Kumar Saxena v. State, 2018 SCC Online Del 7769 and Venkatesh v. State, 2019 SCC OnLine Mad 995 it was clarified that although a default in filing the chargesheet would confer an indefeasible right of the accused to be admitted to bail. However, if an accused fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet has been filed. On the other hand, if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet.

Non-issuance of notice to the accused at the stage of hearing the application for extension of time

In Pradip Maity v. Union of India, 2010 SCC OnLine Cal 1503 it was held that before the grant of extension of time, notice should be issued to the accused so that he may have an opportunity to oppose the extension which is sine qua non for seeking extension under section 36A(4) of the N.D.P.S Act. Any sort of violation thereof would entitle the benefit to the accused to get enlarged on bail.

 Rejection of bail application by Special Judge

In Union of India v. Thamisharasi (1995) 4 SCC 190 it was held that the only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the charge sheet within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The reasoning behind such a view is that till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him under Section 37(1)(b) of the NDPS Act. It is held that such a construction of clause (b) of sub-section (1) of Section 37 is not permissible.

On hearing the arguments and authoritative pronouncements Court summarized the legal principles on the same, violation of which will accrue the right to bail. These are as follows:

  1. Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;
  2. Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;
  3. A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,
  4. An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.
  5. In cases where any such default occurs, the question of it being contested doesn’t arise and a right accrues in favour of the accused.
  6. The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.
  7. Violation of any of the aforesaid would be construed as a “default” and the accused become entitled to admitted to bail by such a default.
  8. When an application under Section 167(2) CrPC r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending

 The Court held that in case there is a violation of any of the above, an indefeasible right to bail will be accrued to the accused. The Court further applied the aforesaid parameters in the instant case and laid down that there have been such “defaults” in the instant case, especially non-service of a notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the petitioner and hence he is enlarged on bail.

In view of the above, bail is granted and the petition disposed off.[Ishwar Tiwari v. State of Odisha, BLAPL No.10152 OF 2019; decided on 20-08-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: Harnaresh Singh Gill, J., rejected the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

The facts, in brevity, are that the intoxicant tablets were recovered from the car in which the applicant was sitting which led to the filing of the above stated FIR.

Counsel for the applicant, Manpreet Ghuman has contended that the recovery has been effectuated in the present case and the applicant has been languishing in police custody for the past seventeen months. Also, the challan has been presented along with the filing of the charges hence the purpose to keep the applicant behind bars has turned redundant.

Counsel for the respondent, M.S. Nagra vehemently objected to the bail application stating that the intoxicant tablets that were recovered in the present matter were of commercial quantity hence, it is not fit that the applicant be granted bail.

Upon careful perusal of the facts, circumstances and arguments advanced the Court observed that an accused does not get entitled to bail merely because of the fact that a challan has been presented or charges have been framed. It’s an inadequate ground especially in the present case where the amount of intoxicant tablets recovered from the applicant falls under the category of commercial quantity. Section 37 of the NDPS Act has specifically barred the grant of bail to an accused in case of a commercial quantity being involved.

In view of the above, Court rejected and dismissed the application for lack of merit. [Prem Singh v. State of Punjab, 2020 SCC OnLine P&H 1341, decided on 26-08-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vijay Kumar Shukla, J., allowed the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 376(2)(j), 376(2)(i), 376(2)(n) of the Penal Code, 1860 and Sections 5/6 of POCSO Act.

The alleged facts of the case are such that the applicant has been charged with rape when he sexually exploited the victim aged between 13-15 and who happens to be mentally challenged. The applicant has been in custody for the past nine months.

Counsel for the respondent, Jagat Singh reiterated the victim’s mother’s statement and mentions that the present case is made out of the same.

It was contended by Vikas Mishra, counsel for the applicant that the offence could not be attributed to the applicant because of the sole reason that the applicant is physically incapable of performing the act of sexual intercourse. As per the MLC diagnosis of the applicant, it is not humanly possible for him to commit the crime he’s been charged with as he is physically incapable of performing sexual intercourse.

The Court while pronouncing the judgment, took his medical condition into consideration.

Hence, the Court upon perusal of the facts, circumstances and arguments observed that it has been established that the applicant is not medically fit and competent to perform the act of sexual intercourse. Further, considering that the applicant has been in jail since 11-11-2019, the present application has been allowed.

In view of the above, the applicant has been granted bail. [Vanshdhari Kol v. State of Madhya Pradesh, 2020 SCC OnLine MP 1844, decided on 28-08-2020]

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., granted bail to an accused observing that his act by itself does not amount to recce.

Applicant sought release on bail for offence registered under Section 396 of the Penal Code, 1860.

Govind Tulshiram Surase in the FIR stated that his father was working as a watchman and on 26-03-2019, he had left to attend his duty at around 8.30 PM but did not return the next morning.

After searching for long Informant’s father was found dead in the cabin of a dumper parked on the highway with injuries on his person.

In view of the above FIR was lodged against unknown persons and applicant was arrested.

Applicant’s counsel submitted that there is hardly any evidence against the applicant. The informant’s statement mentioned that he had seen 3 persons come near the spot and left without any communication with anybody.

Applicant’s counsel further added that the case against the present applicant appeared that he had conducted Recce around the spot and therefore he was sought to be roped in as one of the offenders.

Circumstance being very weak, he deserves to be released on bail.

Decision

Bench on considering the submissions stated that the allegation against the applicant with regard to conducting reccee of the spot is not supported by any cogent evidence.

Further, the witnesses gave no description of the persons who had conducted recce.

In any case if some unknown person had come to the spot and left the spot that by itself may not amount to conduct of recce.

Court added that the statement is based on mere suspicion and subsequent identification of the applicant in the test identification parade is not of much importance.

Hence the applicant was granted bail with some conditions.[Akash R. Lokhande v. State of Maharashtra, 2020 SCC OnLine Bom 887, decided on 28-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Full Bench of Dipankar Datta, CJ and R.K. Deshpande and Sunil B. Shukre, JJ., answered the question referred by the Division Bench of this Court with regard to, “Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Court answered in negative and held that the benefit under Section 436-A of the Code of Criminal Procedure is only for the undertrial prisoners.

Bench has been asked to answer a question referred by the Division Bench of this Court in a criminal application wherein applicant sought bail under Section 436-A of Code of Criminal Procedure.

Background of the Case

In 2016, the applicant was convicted for the offences punishable under Sections 506-II, 450, 326, 452, 354-A read with Sections 34, 149, 109 and 114 of the Penal Code, 1860 and also under Section 66E of the Information Technology Act, 2000.

The application was rejected by the Division Bench of this Court by its order passed on 18-11-2016.

On two occasions, the applicant failed to get any reprieve.

Now, the applicant has again renewed his effort to secure his release on bail during the pendency of the appeal, this time on a new ground he sees as available to him in Section 436-A of the Code.

Applicant relies upon Pradip v. State of Maharashtra, 2019 SCC Online Bom 9768 and Mudassir Hussain v. State, 2020 SCC Online J&K 381, and also a few more Judgments.

Question framed by the Division Bench is as under:

“Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Applicant’s Counsel, R.K. Tiwari submitted that the provision of Section 436-A of the Code is beneficial in nature and therefore it deserves liberal interpretation.

If the provision is liberally constructed, it would bring big relief to the convicts whose appeals filed under Section 374 of the Code are pending for final disposal for long years.

Additional Public Prosecutor, T.A. Mirza submitted that language of Section 436-A of the Code is clear and unequivocal admitting of no two interpretations and therefore the rule of liberal construction has no application here.

Decision and Analysis

The situation which went into the birth of Section 436-A was of undertrial prisoners, the primary concern being of their incarceration in jail for a long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour.

By introducing Section 436-A to the Code, an endeavor was made to remedy the condition of torture and misery of accused persons as undertrial prisoners, relegated to dark corners within jails, away from the hustle and bustle of life activity without jails.

Liberal Construction

The benefit intended to be given by Section 436-A CrPC is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law.

Benefit under the section has been intended to be given only to the undertrial prisoners.

Sunil B. Shukre, J., answered in negative to the referred question, further stated,

“To be specific, we answer the question in terms that a convict who has challenged his conviction under Section 374 of the Code, is not entitled to the benefit of Section 436-A of the Code.”

R.K. Deshpande, J., while in agreement with the above-stated conclusion opined that there is no absolute right to get released, conferred upon the undertrial prisoner upon fulfillment of the conditions specified under Sectio 436-A CrPC.

An accused completing the period specified under Section 436-A on the date of filing of appeal may not apply under Section 389 of the Code for suspension of sentence and grant of bail, but he can claim the release from detention even without suspension of sentence.

Therefore, to agree with the contention that the accused remain an undertrial prisoner during the pendency of the appeal and the Appellate Court is competent to exercise the power under Section 436-A of the Code.

Dipankar Datta, C.J., while agreeing with the view of learned brothersDeshpande and Shukre, JJ. stated that,

Section 436-A refers to the maximum period of imprisonment specified for the offence in question, and not to the period of imprisonment actually imposed.

Chief Justice opined that Section 436-A CrPC is restricted in its operation to grant bail to an undertrial prisoner ‘during the period of investigation, inquiry or trial’ and does not, ex proprio vigore, apply at the appellate stage.

Thus, CJ concurred with the prima facie view of the Division Bench as well as the opinion of learned brother Deshpande and Shukre, JJ.

“Spirit of Section 436-A, CrPC could be considered by an appellate court while it is seized of an application under Section 389, CrPC and, drawing inspiration from the principle ingrained in the former, to suspend execution of the sentence bearing in mind all relevant factors including the time likely to be taken for disposal of the appeal.”

Therefore, Bench held that since the Division Bench has rejected the applicant’s prayer for suspension of execution of sentence for the third time, it is highly unlikely that any further prayer in the instant matter shall be considered favourably. [Maksud Sheikh Gaffur Sheikh v. State of Maharashtra, 2020 SCC OnLine Bom 878, decided on 28-08-2020]

Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., allowed the anticipatory bail application of the applicant-accused in connection with the FIR registered for offence punishable under Section 376 read with Section 34 of the Penal Code, 1860.

The factual matrix of the case is such that it has been alleged that the applicant has committed rape on the victim in room No. 8 of Kripa Annex, Ernakulam North with the help of the co-accused.

Counsel for the applicant, Latheesh Sebastian has vehemently denied these allegations levelled against the applicant by submitting that the accused and the victim are in love and that the case has resulted out of a misunderstanding with the father in law of the victim. The father-in-law of the victim who happens to be the de-facto complainant has filed an affidavit in this Court stating that the marriage of the applicant and victim has been fixed. The victim has also forwarded an affidavit stating that she has no objections if the present proceedings are quashed. The counsel stated that he is in the process of getting the proceedings quashed. With the quash proceedings at the brink, it would be an act of grave injustice if the applicant is arrested.

Counsel for the state while opposing the bail called for the imposition of stringent conditions in a situation where the bail is granted. It’s been stated that the case is made out of the statement given by the victim.

The Court drew an inference from the principle enunciated in the case of P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 66 that “bail is the rule and jail is the exception”.

The Court upon perusal of the facts, circumstances and arguments advanced observed that there is a love affair between the victim and the applicant based on the affidavits by the de-facto complainant and the victim. Even though marriage will not wipe off the offence but the fact has to be considered that the victim and accused are on their way of solemnizing a wedding in the near future.

In view of the above, the present application has been allowed, granting anticipatory bail to the applicant.[Amal Sha v. State of Kerala, 2020 SCC OnLine Ker 3495, decided on 24-08-2020]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J., denied bail to the applicant in connection with the FIR registered for offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2016.

The factual matrix is such that the applicant left his motorcycle and ran away while being chased by the police and later the police recovered 108 bottles of illicit liquor from a sack on the motorcycle.

Counsel for the applicant, Usha Rai contended that the applicant has been falsely implicated due to village politics and was never caught. It was submitted that both the bike and the sack do not belong to the applicant. There is not even a single witness to corroborate the event that transpired on that day, yet the applicant has been in custody for the past seven months.

The counsel for the respondent, Harendra Prasad vehemently opposed the bail submitting that there are many witnesses to corroborate the prosecution’s case and have confirmed the applicant’s involvement in liquor trade including the local Chowkidar who was a witness to the act which gives rise to the present matter. Moreover, the counsel drew the Court’s attention towards the incorrigible nature of the applicant, substantiating the same by stating that the applicant has several cases registered against him with six of them under the Excise Act itself. The counsel pleaded that it’s evident from the applicant’s history that he has been misusing the privilege of bail and committing offences of the same nature repeatedly.

Upon careful perusal of the facts, circumstances and arguments advances, the Court observed that it is clear that the applicant has been indulging himself in the same activity again and again, being accused of offences of similar nature and thus does not deserve bail in the present case.

In view of the above, the Court rejected the application for bail.[Santosh Pandey v. State of Bihar, 2020 SCC OnLine Pat 1230, decided on 21-08-2020]

Case BriefsHigh Courts

Kerala High Court: Ashok Menon, J., allowed the bail application of the applicant-accused in connection with the FIR registered for offences punishable under Sections 365, 323, 324, 342, 506(ii), 34 of Penal Code, 1860 and Section 27 of the Arms Act.

The facts of the case are such that the applicant kidnapped and assaulted the victim because of some personal enmity on 29-05-2020. The act included the applicant kidnapping the victim on a motorcycle and then taking him to a rented house and then assaulting him with a sword-like weapon.

The counsel for the respondent, Amjad Ali while opposing the bail has argued that the applicant is part of a larger notorious gang having 11 cases registered against them under the IPC. The applicant has also been tried twice under the provisions of the KAAPA. Given the fact that there are criminal antecedents and the other co-accused are at large, the present application, if allowed would act as a roadblock in the investigation. There’s also a chance that the applicant might abscond or tamper with the witnesses.

On careful perusal of the facts, circumstance and the arguments advanced the Court observed that the victim has not been subjected to any grievous hurt and that there’s no offence under Sections 307 and 308 IPC. The primary offence is of kidnapping which carries a term of maximum seven years. It wouldn’t be correct to incarcerate the applicant and deny him bail solely based on the reason that he has a past criminal record and that the co-accused have not been apprehended.

In view of the above, the application for bail was allowed in favour of the applicant. [Ansab v. State of Kerala, 2020 SCC OnLine Ker 3299, decided on 17-08-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia J. granted bail to the bail accused of facts and averments presented before him.

The facts of the case are that the prosecutrix made a written complaint wherein she alleged that one day while she was in the jungle grazing the cattle, one Dharmendra Kumar, i. e. accused committed rape and threatened her with life. After she made the complaint the accused was arrested under Section 376, 504, 506 and 354-D(2), Penal Code, 1860 and is behind bars since then. Hence the instant bail petition was filed.

Counsel for the petitioners, Ravi Tanta and Azad Kaith submitted that the accused is 26 years old and is a permanent resident of a nearby village hence he is not in a position to tamper with the evidence or flee from justice hence to keep him in custody for an unlimited period will not be justified.

Counsel for the respondents, S.C. Sharma, P.K. Bhatti and Kamal Kishore submitted that the accused is charged under a serious offence and hence is not liable to be released on bail.

After hearing both sides, the Court found it unfair to keep the accused behind the bars when he will be available for investigation and being a permanent residence of the place is not in a position to tamper with the evidence or flee from justice.

In view of the above, the bail is granted and petition disposed of.[Dharmendra Kumar v. State of H.P, 2020 SCC OnLine HP 1227, decided on 19-08-2020]

*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi J., granted bail to an accused of animal trafficking under Wildlife Protection Act, 1972 on the facts and submissions of the case.

The facts are that on 19.05.2020 patrolling staff of Kuntuni range forest area received information regarding the transportation of pangolin in a scooty having no number plate. The scooty was chased and caught, the live pangolin was rescued and the driver detained on not being able to produce valid documents regarding the same. On further investigation, it was revealed that the present petitioner is also involved. They were registered for alleged offences under Sections 9, 39, 44 and 49 of Wildlife Protection Act, 1972 Amended and punishable under Section 51 of the said Act and is in custody. Hence the instant application is filed praying for bail.

Counsel for the petitioner submitted that the petitioner is a teacher by profession and has been framed and has no complicity in the offence. He further submitted that the accused has no direct link with the crime as he only gave certain phone numbers having no idea about the crime and is fit to be granted bail.

Counsel for the respondents submitted that such offences require to be dealt strictly by court as the pangolins are close to extinction due to being exposed to rampant trafficking and poaching.

After hearing both sides the court held that though animal trafficking is a serious crime and has to be stopped but given due consideration to the present facts and submissions Court granted bail.

In view of the above, application was disposed off.[Shyamsundar Behera v. State of Orissa, 2020 SCC OnLine Ori 595, decided on 10-08-2020]

*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., granted bail to the applicants who were accused of committing offence of unnatural sex without consent and outraging the modesty of a woman.

An FIR was lodged by a grown-up lady aged 41 years old against her husband and brother-in-law.

Allegations placed by the woman were that her husband i.e. Ravi time and again had unnatural sex with her against her consent. She also alleged that her brother-in-law i.e. applicant used to outrage her modesty and was demanding sexual favour.

Another crime was filed by the daughter of the applicant. The girl alleged against her uncle Ravi that while she was studying in 10th standard, he tried touching her inappropriately and outraged her modesty.

Applicants Counsel, S.P. Bhandarkar submitted that both the complaints are nothing but an outcome of matrimonial flued.

Unnatural Sex

Court noted that the marriage of strained couple sailed smoothly for 21 long years and has two children. After such a long time, the wife alleged unnatural sexual acts at the hands of her husband.

Though it is alleged that since inception, the husband was prone to seek unnatural sex, however, after a long gap of 21 years the matter has been reported to the police.

Bench cited the Supreme Court decision in the case of Navtej Singh Johar v. UOI, (2018) 10 SCC 1, wherein it was held that,

“Unnatural consensual sexual acts of adults in private are de-criminalized.”

Non-Consensual

In light of the above-stated decision, the offence would only be attracted if it was done without the consent of the adult.

In the present matter, it has been unfolded that the allegation was running for a period of 20 years, but, the complaint had been lodged thereafter. No medical evidence to support the allegations was placed in the complaint.

Court noted that both the FIRs were simultaneously filed, which speaks for itself.

In view of the above, both the applicants made out a case for grant of pre-arrest bail and Court disposed of the criminal applications. [Rajendra Ramkrushna Malve v. State of Maharashtra, 2020 SCC OnLine Bom 863, decided on 11-08-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J. granted bail observing various provisions relating to the inherent powers of High Court regarding granting bail in the instant case.

The facts of the case are that the petitioner along with other co-accused was charged for offence under Section 420 read with Section 34 of the IPC along with Section 10 of the Chhattisgarh Protection of Interest of Depositors Act, 2005. Previously the petitioner’s application for anticipatory bail and regular bail has been rejected. Then he filed SLP which was also rejected by the Supreme Court on 11-03-2019 directing to conclude the trial within one year. Thereafter, the petitioner prayed for pardon under Section 306 (1) of CrPC which was granted by Judicial Magistrate First Class vide order dated 17-02-2020. After this, the petitioner applied for bail stating that since pardon has been granted his status has been changed from an accused to a witness and hence is liable to be granted bail which was rejected as the petitioner was not already on bail, in view of legislative bar engrafted under 306 (4)(b). Hence the present petition has been preferred to invoke the inherent jurisdiction of High court under Section 482 of CrPC for admitting bail.

Counsel Amit Kumar Chaki submitted that Sections 437 and 439 of the Code are not applicable for as after being granted pardon he has now attained the status of a witness i.e. has become ‘approver’ in view of Section 306(1) instead of an accused. He further submitted that the approver has been in jail for three years and in view of the present COVID situation the trial can take long as it has already been delayed in spite of the Supreme Court’s order for fast disposal. He further submitted that the bar engrafted under Section 306(4) (b) is confined to that of the Court of jurisdictional Magistrate only where the trial is pending. He further stated that power of the High Court under Section 482 of the Code is not in any way inhibited by Section 306(4)(b) of the Code, as its applicability is fully confined to that of the jurisdictional Magistrate considering the application under Section 306(1) CrPC.

Counsel Animesh Tiwari for respondents submitted that power under Section 482 CrPC has to be used sparingly in exceptional circumstances. He further submitted that most of the witnesses has been examined and hence it would not take much time for the conclusion of the trial and hence it is a fit case to be dismissed.

Counsel Anurag Dayal Srivastava appeared as amicus curiae and informed the Court that the applicability of Section 306(4) of the Code is confined only to that of a Magistrate trying the case, and the Sessions Judge while granting pardon under Section 307 of the Code is empowered only to enlarge the approver on bail. He further made clear that the provisions engrafted under Section 306(4) of the Code are not attracted if the accused has tendered pardon after the commitment of the case under Section 307 of the Code. 

Objective of Section 306 (4) (b) as stated by amicus curiae [Prem Chand v. State 1985 Cri. L.J. 1534]

The objective of the provision of Section 306(4) (b) of the Code is not meant to punish the person in whose favour pardon has been tendered but to protect him from the possible indignation, rage and resentment of his associates in a crime to whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon.

Objective of Section 306 CrPC [Bangaru Laxman v. State (2012) 1 SCC 500]

The main purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence and not to judge the extent of culpability of the persons to whom the pardon is tendered.

The Court further observed:

“….the provision under Section 306(4)(b) of the Code is applicable to the Judicial Magistrate First Class if the pardon is granted by him, but if the pardon is granted to accomplice by the learned Sessions Judge under Section 307, Section 306(4) particularly clause (b) mandating his continuation of custody till the termination of trial would not be applicable and the learned Sessions Judge would have the jurisdiction to release him on bail if found appropriate.”

The Court relied on the judgment titled Noor Taki v. State of Rajasthan 1986 SCC Online Raj 11 held that that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution. The Court further held that if an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, then Section 482, CrPC gives wide power to this Court to declare his detention either illegal or enlarge him to bail while exercising its inherent powers.

In view of the above and taking note of the fact that the trial has been delayed even past the order of the Supreme Court for disposal, the Court deemed fit to enlarge the petitioner on bail, directing the trial court to dispose of the case expeditiously.[Rajkumar Sahu v. State of Chhattisgarh, 2020 SCC OnLine Chh 109, decided on 15-07-2020]

*Arunima Bose, Editorial Assistant has put this story together

Case BriefsCOVID 19High Courts

Tripura High Court: Arindam Lodh, J.,  while terming the doctors as “frontline warriors”, directed the Investigating officer to conduct Test identification parade to ascertain the real offenders responsible for harassing a doctor.

Dr Sangita Chakrobarty was serving as District Health Officer, West Tripura, and was discharging her duties as, in-charge of distribution of COVID-19 patients. Five post-delivery mothers long with their new born babies, who were tested COVID-19 positive, were sent to a COVID Care Centre to ensure maximum safety and were kept under the surveillance of Dr Chakrobarty.

Some of the previously admitted older patients started protesting indiscriminately demanding that they would not allow entry of any new patients in the centre. The protests turned graver shortly and situation worsened. Dr Chakrobarty tried to calm down the protestors, however, they abused her, threw sexually coloured remarks, spat on her face and exhibited more of such uncivilised behaviour. Complaint against these patients was filed by the Director of Health Services, Government of Tripura.

The petitioner was one of the alleged protestors, and therefore, came before the High Court under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail.

The counsel, Raju Datta, for petitioner argued that the name of the petitioner had not been transpired in the complaint, there was no accusation against him, and on this ground alone, the petitioner should be granted anticipatory bail. High Court raised a question before him, whether mere apprehension of arrest attracts the ingredients of Section 438 of CrPC to which Mr Datta, submitted that mere apprehension of an arrest does not attract the ingredients of Section 438 of CrPC for granting anticipatory bail.

Bench looked into the relevant sections of CrPC. and the Epidemic Diseases (Amendment) Ordinance, 2020, to consider the bail application. He further explained the importance of doctors in society and especially during the time of COVID-19 when doctors have become the “first-line defence of the country”.

Adding to the above, Court labelled the protest which took place as “detrimental to the sentiment, safety and security of the Doctors and the entire society of our nation as well as of this state.” Therefore, keeping in mind the objective of the latest Epidemic Ordinance, he directed the Investigating Officer to record the confessional statement of the victim and her supporting staff under Section 164(5) of the CrPC.

Bench directed the Investigating officer to arrange for Test Identification parade to identify the real offenders. [Karnajit De v. State of Tripura,  2020 SCC OnLine Tri 353, decided on 30-07-2020]