Bail

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J. allowed this bail application registered under Section 439 of the Code of Criminal Procedure, 1973. 

The applicant of this application is the accused 7 of the Crime No. 445 of 2019 of the Shornur Police Station registered under Sections 143, 144, 147, 148, 324, 326, 307 and 447 read with Section 149 of the Penal Code. 

The facts of the case are that on 22-11-2019, all the 7 accused’s who were named in the First Information Report along with 3 others, attacked the complainant and his friend Abdul Rahman with swords and weapons, causing him serious injuries. 

The counsel for the applicant/accused, Nireesh Mathew, contended that the accused 7 did not hurt the complainant. The counsel contended that the injuries were made by the rest of the accused. He contended that the accused is only liable for being a member of unlawful assembly and as such guilty under Section 149 of the Penal Code.

Section 149 of the IPC states that if an offence is committed by any member of an unlawful assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. in. The counsel would contend that the injuries were inflicted by the rest of the accused and the applicant herein was roped in with the aid of Section 149 IPC.

The counsel for the complainant/respondent, Remesh Chand, Public Prosecutor, contended that the wound certificate shows serious injuries of the informant and his friend. 

The Court, after listening to the counsels of both the parties, held that the first informant has no case and that the applicant was not armed with a weapon or anything. Neither did the applicant induced any serious injury to the complainant. On this basis, the Court allowed this application of bail on executing a personal bond of Rs 1,00,000 with two other solvent sureties each for the sum as per the satisfaction of the Court having jurisdiction. Some other conditions were also imposed-

  1. the applicant has to appear before the Investigating Officer on all the Mondays between 10 a.m. and 1 p.m. for a period of three months or till the final report is laid; whichever was earlier.
  2. the accused should not intimidate or attempt to influence the witnesses, nor should he tamper with the evidences
  3. while the accused is on bail, he should not commit any offence.

In case of violation, the jurisdictional Court shall be empowered to consider the application for cancellation.[Vishnu Prasad v. State of Kerala,  2019 SCC OnLine Ker 5349, decided on 12-12-2019]

Case BriefsHigh Courts

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

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

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

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

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

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

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

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J. allowed this application of bail filed under Section 439 of the Code of Criminal Procedure, 1973.

The petitioners of this application are the accused of Crime No. 81 of 2019. The crime was registered by the Excise Enforcement and Anti Narcotic Drugs Special Squad, Kollam under Sections 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 60(3) of the Abkari Act. The counsel for the applicants contended that it has already been 60 days from the time they were remanded to judicial custody on 12-10-2019 and still the final report has not been laid even after completing the investigation.

Section 20(b)(ii)(B) of the NDPS Act states that if anyone produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis and the quantity involved is lesser than commercial quantity but greater than small quantity then that person shall be punished with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.

After hearing to the counsel for the petitioner, C. Rajendran, and to the counsel for the respondent, Ramesh Chand, Public Prosecutor, the Court held that the applicants have the absolute right to be released on default bail. Hence, the Court granted bail. The applicants were to be released on bail when each of them executes a bond a Rs 1,00,000 with two solvent sureties each for the sum to the satisfaction of the court. Though the Court laid down some conditions:

  1. The applicant will have to appear before the Investigating Officer on every Saturday between 10.00 a.m. and 1.00 p.m. for a period of 2 months.
  2. They cannot intimidate/attempt to influence the witness, or tamper the evidence
  3. Shall not commit any similar offence.
  4. Surrender their passport before the court below or if they do not the same, they shall file an affidavit to the effect within 5 days of their release.
  5. In case of violation, the jurisdictional court will have the power to cancel their bail. [Shafeek v. State of Kerala, 2019 SCC OnLine Ker 5347, decided on 12-12-2019]
Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J. allowed the interim application of the appellant by granting bail on the basis that the co-accused in similar cases have already been granted bail. 

Firstly, the appellant, in this case, has been charged with Dacoity, punishable under Section 395 of the Penal Code. The appellant and the co-accused were convicted and sentenced by the Additional Sessions Judge, II, Palamau at Daltonnganj, in Sessions Trial Case No. 152 of 2018, arising out of Sadar (Satbarwa) Police Station Case No. 132 of 2017 corresponding to G.R. No. 2129 of 2017. 

The Sessions Court, on 10-04-2019 and 15-04-2019, ordered the accused and the co-accused to go under rigorous imprisonment for a period of seven years along with a fine of Rs 5000. In default of payment of fine, the appellant and the co-accused will be liable for another 6 months of simple imprisonment. 

Secondly, the appellant and the other co-accused have also been sentenced for rigorous imprisonment of 3 years along with a fine of Rs 3000, under Section 25(1-B) of the Arms Act, 1959, by the Sessions Court. In default of payment of fine, the appellant and the co-accused will be liable for simple imprisonment of 4 months. The court also clarified that all the sentences are to run concurrently.

The appellant prayed in the Interim Application No. 5115 of 2019 for suspension of sentence and a release on bail during the pendency of the case. The counsel for the applicant, Manoj Kumar, contends that the appellant has been awarded maximum punishment for 7 years and the appellant has already spent 2 years in jail in connection with the present case. The counsel for the appellant informed the Court that already an appeal regarding a similar case, of a co-accused has been put up in the Court and the Court has already granted bail to the co-accused, Nirantan Kumar Singh, order dated 25-09-2019. [Cr. Appeal (S.J.) No. 554 of 2019].

The counsel for the opposite party, Azeemuddin (APP), stated that the prayer for the bail should not be accepted because unlike the co-accused, the allegations against the appellant are direct. The Counsel requested the Court, in case the sentence is suspended, the appellant should be directed to deposit the fine along with the request that one of the bailors should be his father, pairvikar of the case.

The Court held that the appellant shall be granted the bail as he has already spent 2 years in jail, in connection to this case. Secondly, the appeals for bail of the co-accused have already been granted, hence, the appellant can also be granted bail on similar grounds. Hence, during the pendency of the appeal, the appellant was directed to be released on bail of Rs 25000 with two sureties of Rs 25000 each, one surety being the appellant’s father. The appellant was directed to submit a Xerox copy of his Aadhar Card and cell phone number, at the time of furnishing bail bonds. [Gulab Singh v. State of Jharkhand, Cr. Appeal(S.J.) No. 802 of 2019, decided on 05-12-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ., addressed the appeal filed by the former Finance Minister, P. Chidambaram assailing the final order passed by Delhi High Court wherein regular bail to the appellant was declined.

Genesis of the Case [Brief Facts]

Following is the chain of events that occurred and led to the present Appeal:

FIR registered by CBI under Section 120-B read with Section 420 IPC and Sections 8 and 13(2) read with Section 13 (1) (d) of PC Act against some unknown and known suspects with allegations that INX Media (P) Ltd. sought approval of Foreign Investment Promotion Board (FIPB) for permission to issue by way of preferential allotment, certain equity and convertible, non-cumulative, redeemable preference shares for engaging in the business of creating, operating, managing and broadcasting of bouquet of television channels.

 Company also sought approval to make downstream financial investment. FIPB recommended the proposal of INX Media for consideration and approval of the Finance Minister, however, Board did not approve of the same.

Later, in a press release issued by FIPB Unit, the details of FDI/NRI inflow against INX Media was shown as Rs 4.62 Crores in the release. Contrary to the approval of FIPB, INX Media (P) Ltd. made a downstream investment to the extent of 26% capital of INX News and generated more than Rs 305 Crores against the approved foreign inflow of Rs 4.62 Crores.

FIPB Unit sought clarifications from INX Media Limited. Further INX Media in order to avoid punitive action entered into a criminal conspiracy with Karti Chidambaram –Accused 3 in the FIR.

Accused 3 is alleged to have exercised his influence over the officials of FIPB unit which led to showing undue favour to INX News (P) Ltd. Thereafter deliberately concealing the investment received in INX Media (P) Ltd., INX News (P) Ltd. again approached the FIPB Unit and sought permission for downstream investment. The stated proposal was considered by the officials of the Ministry of Finance and approved by the then Finance Minister.

Karti Chidambaram in lieu of services rendered to INX Group, received consideration in the form of payments.

Appellant who was the then Finance Minister has not been named in the said FIR.

Respondent Directorate of Enforcement registered a case (ECIR case) on the basis of the above-mentioned FIR under Section 3 of Prevention of Money Laundering Act, 2002 punishable under Section 4against the accused mentioned in the FIR. Appellant’s name was not named in this case as well.

Appellant apprehending his arrest filed an application before the Delhi High Court seeking grant of anticipatory bail. Further, the Delhi High Court extended the interim protection of the appellant.

Appellant then approached the Supreme Court wherein while dismissing his appeal, Court concluded that grant of anticipatory bail will hamper the investigation.

While above circumstances and chain of events were happening, appellant was now arrested in the CBI case, which has been mentioned earlier.

Later, on 16-10-2019 appellant was arrested in the ECIR case on the grounds that payment of approximately Rs 3 crores was made at the appellant’s instance to the companies controlled by Karti Chidambaram on account of FIPB work done for INX Group.

Appellant further moved his application with respect to surrender before the Trial Court in the ECIR Case, for which again his application was rejected on behalf of the respondent Directorate that t was not willing to arrest the appellant at that particular stage.

Thereafter, Respondent-Directorate moved an application under Section 267 CrPC wherein it sought issuance of production warrant against the appellant for the purpose of arrest and remand.

On 23-10-2019, appellant moved a regular bail application before the High Court, wherein he stated that he merely accorded approval to the unanimous recommendation made by the FIPB, anyone familiar with the working of FIPB would know that no single officer can take a decision on any proposal. Therefore, it is preposterous to allege that any person could have influenced any official of FIPB.

Adding to the above, he submitted that ECIR case is a verbatim copy of the FIR and thus the Special Judge erred in granting remand of the appellant in the ECIR case since the offences allegedly committed in both the cases arise out of the same occurrence and have been committed in the course of the same transaction. Special Court erred in not accepting the surrender application.

Further, High Court concluded that prima facie allegations are serious in nature and appellant ahs played a key role in the present case. On the basis of these observations, High Court dismissed the bail application.

Senior Counsel, Kapil Sibal and Dr Abhishek Manu Singhvi represented the appellant.

Senior Counsels representing the appellant submitted that:

  • High Court erred in law in going into and rendering findings on merits of the case in order to deny bail to the appellant despite the settled position of law that merits of a case ought not to be gone into at the time of adjudication of a bail application.
  • High Court erred in accepting at face value the allegations made on merits of the case in the counter affidavit filed by the respondent and converting such allegations verbatim into findings by the Court and declining to grant bail to the appellant solely on the basis of said findings.
  • No material linking the appellant directly or indirectly has been placed on record before the High Court.
  • All the other ECIR case accused’s have either been granted bail or have not been arrested.
  • Appellant’s health continues to deteriorate and with the onset of the cold weather, the appellant will become more vulnerable.

 “Gravity of an offence is to be determined from the severity of the prescribed punishment.”

Conclusion

“Basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.”

Court, had disapproved of the manner in which the learned Judge of the High Court in the said case had verbatim quoted a note produced by the respondent. If that be the position, in the instant case, the learned Judge while adverting to the materials, ought not to have recorded a finding based on the material produced before him.

On perusal of the documents submitted by the respondent, Court noted that statements of persons concerned have been recorded and the details collected have been collated.

It has been further noted by the Court that the appellant has not been named as one of the accused in the ECIR but the allegation while being made against the co-accused it is indicated that the appellant who was the Finance Minister at that point, aided the illegal transactions since of the co-accused (Karti Chidambaram) is the son of the appellant. Thus, the complicity of the appellant will have to be established in the trial and if convicted, the appellant will undergo sentence.

Thus, considering and noting the age and health of the appellant, Court stated that the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a ‘flight risk’ and there is no possibility of tampering the evidence, therefore he is entitled to be granted bail.

Gist of the Order to be noted here:

  • Delhi High Court’s Judgment is set aside and present appeal is allowed.
  • Appellant granted bail with the execution of bail of Rs 2 lakhs.
  • Appellant shall not leave the country without specific orders to be passed by the learned Special Judge.
  • appellant shall not tamper with the evidence or attempt to intimidate or influence the witnesses;
  • Appellant shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused.

[P. Chidambaram v. Directorate of Enforcement, 2019 SCC OnLine SC 1549, decided on 04-12-2019]

Hot Off The PressNews

Supreme Court: The Bench comprising of  R Banumathi, A S Bopanna and Hrishikesh Roy, JJ., granted bail to P. Chidambaram in INX money Laundering Case registered by the Enforcement directorate.

Pointers to be noted:

  • P Chidambaram will not leave the country without prior permission of the court
  • He has been released on a personal bond of Rs 2 lakh with two surety of like amount
  • Delhi High Court’s November 15 verdict dismissing bail plea of P Chidambaram has been set aside.
  • Court has also restrained Chidambaram from giving any press interviews or making statements in the media

Background:

Chidambaram sought bail in a case pertaining to the Foreign Investment Promotion Board (FIPB) clearance given to INX Media to the tune of Rs 305 crore in 2007 by Chidambaram when he was the Finance Minister. He was arrested by the ED on October 16 and is currently in judicial custody. Denying bail to Chidambaram in the case, the High Court had stated that prima facie allegations against him are “serious in nature” and he played an “active and key role” in the offence.

Senior advocates Kapil Sibal and Abhishek Manu Singhvi, appearing on behalf of Chidambaram today, submitted before the top court that their client has been in jail for over 90 days and has cleared the triple test criterion to avail the bail. Chidambaram had sought bail on the health grounds. The Congress leader also asserted that no part of the triple test, which includes flight risk, influencing witnesses and tampering with evidence, has been made out against him. He stated that there was no allegation that he was a flight risk following the issuance of a Look out Circular (LOC).

On October 22, 2019, the bench had granted bail to former Finance Minister and senior Congress leader P Chidambaram in connection with the INX Media case registered by the Central Bureau of Investigation (CBI).

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

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

[Detailed Judgment to be Updated] Stay tuned in!

Case BriefsHigh Courts

Allahabad High Court: Aniruddha Singh, J. allowed the application filed by the applicant for the grant of bail where an FIR was lodged against unknown persons alleging that on 31-7-2018 they stole 24 batteries. Later on, the applicant along with seven other people was arrested by the police after they recovered the batteries and a sum of Rs 50,000 from their possession.

The counsel for the applicant, Krishna Pratap Singh and Vivek Chandra, submitted that co-accused of the applicant was already granted bail by a co-ordinate Bench of the Court, and since the role of the applicant was not distinguishable with the role of co-accused, therefore, the applicant was also entitled to bail. He claimed that the applicant was innocent and had been falsely implicated in the present case. The applicant was not named in the FIR. During the investigation, the name of the applicant has surfaced afterthought and due legal consultation. There was also no possibility to decide the case in a short period in the future due to the heavy workload in the trial court. They further submitted that the so-called recovery was falsely planted by the police to show their good work. There were no independent witnesses and also no legal evidence against the applicant. And therefore, the offences levelled against the applicant were attracted in the present case. Moreover, the applicant had been languishing in jail since 17-08-2018 (more than one year and three months.

The respondent opposed the prayer for bail but were not able to dispute the facts argued by the counsel for the applicant and admitted that the case of the applicant was identical to that of the co-accused who were enlarged on bail.

The Court after considering the submission of both the parties, facts of the case, nature of allegation and period of custody, and gravity of offence granted bail to the applicant without expressing any opinion on the merits of the case, thereby allowing the application. The applicant was ordered to be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court.[Nanhe v. State of U.P., Bail No. 11370 of 2019, decided on 27-11-2019]

Case Briefs

Karnataka High Court: Ashok G. Nijagannavar, J. while allowing the petitioner-accused’s petition for grant of bail, laid down certain conditions such as a sum of one lakh rupees to be paid and he shall appear before the court on all the dates of hearing and shall not tamper with the evidence.

The brother of the deceased victim filed a complaint that the petitioner-accused had kidnapped his sister on the pretext of marrying her. Later, her mother complained that he took undue advantage of the innocence of the victim girl, who was a minor at the time of the alleged incident and was sexually assaulted due to which she was compelled to commit suicide. Later it came to notice of the court and was recorded under Section 164 of Criminal Procedure Code, 1973 that the deceased had gone with the accused-petitioner on her own and had been living with him since then. Apart from this, there were no specific allegations of kidnapping or sexual assault. A case was filed against the petitioner-accused under Section 439 CrPC for offences punishable under Sections 363, 376 of the Penal Code, 1860 along with with Section 6 of the Prevention of Children from Sexual Offences Act, 2012 in Sessions Court; and the bail petition filed by him was rejected by that court. 

The counsel for petitioner strenuously contended that on the date of the complaint the girl was above 17 years and she had full mental ability to understand the consequences.

The counsel for accused-petitioner referred two cases Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 and Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40. In Dataram Singh’s case the Court pondered upon the fundamental assumption of criminal jurisprudence i.e., a person is believed to be innocent until proven guilty and that the grant of bail is a general rule. In Sanjay Chandra’s case, the Court said that the object of bail is neither punitive nor preventative and that the object of bail is to secure the appearance of the accused person and should respect the principle that punishment begins after conviction as imprisonment before conviction has substantial punitive content.

In view of the above, the court was of the view that bail is not to be withheld as a punishment, and the bail was granted to the accused-petitioner subject to various terms and conditions. [Santosh v. State of Karnataka, Criminal Petition No. 101779 of 2019, decided on 04-11-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Hari Pal Verma, J. allowed the petition filed by the petitioner by granting him bail under Section 439 read with Section 482 CrPC.

An FIR dated 11-05-2019 was lodged against the petitioner under Section 354 IPC as well as Section 8 of the Protection of Children from Sexual Offences Act, 2012. The FIR was registered by the mother of the alleged victim, who was a fifteen-year-old girl of unsound mind. As per the FIR, on 01-05-2019, the complainant found her daughter (victim) in a state of shock at her house. On questioning, the informed her mother that the petitioner, who was a resident of the same village, had done “obscene acts” with her. The victim was not able to express herself fully.

As per the complainant, she had seen the petitioner leaving her house on earlier occasions as well, but on the date of the alleged incident, when she caught the petitioner, he ran away leaving his cycle and a shoe which he was wearing behind. It was suspected that he had committed rape upon her daughter.

The Counsel for the petitioner, A.P.S. Sandhu and Parv Aggarwal, stated that the petitioner was an old man of about 80 years of age. He stated that the complainant was habitual in making such complaints repeatedly. He put on record that many people including the Sarpanch of the village have furnished their respective affidavits stating that the complainant was habitual in making such allegations in order to extract money. There was also no medical report in the case and the trial was also not likely to be concluded in near the future. However, the petitioner had been in custody ever since 01-07-2019. The State Counsel, Saurav Khurana, submitted that the chemical examination report in the case was awaited.

The Court explained that the allegations against the petitioner were of a serious nature since he was alleged that he had committed rape upon the prosecutrix, who was a young girl of 15 years of age and was of unsound mind. The complainant had alleged that earlier also, she had seen the petitioner while doing “wrong acts”, but she had not reported the matter to the police, which created serious doubt about her veracity. There was also no medical report on record to substantiate the allegations made by the complainant. The Court held that since the petitioner was an old man who was about 80 years of age and the trial was not likely to be concluded in near future, the petitioner deserved to be admitted on bail. The Court allowed the appeal and ordered the petitioner to be released on bail on his furnishing adequate bail and surety bonds. The Court also directed that the petitioner must not extend any threat and try to influence any prosecution witness directly or indirectly in any manner. [Gurnam Singh v. State of Haryana, 2019 SCC OnLine P&H 2245, decided on 26-11-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vishnu Pratap Singh Chauhan, J. while allowing the appeal set aside the order passed by the Trial Court.

The present appeal was filed against the order of the Special Judge under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for dismissing the bail application filed by the appellant under Section 439 CrPC. 

The appellant was in jail for commission of offence punishable under Sections 341, 354, 354-B and 323 IPC, under Sections 7 and 8 of the POCSO Act and under Section 3(1)(w) & 3(2) (v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The prosecution had submitted that on 28-01-2019 appellant appeared when prosecutrix went to answer call of nature, tried to drag her to some other place by holding her hand. On resisting this appellant started assaulting her by fisticuffs. 

Counsel for the Respondent/State, S.B. Agnihotri had vehemently opposed this bail application.

The Court after going through the case diary noticed that prosecutrix at the time of the incident was more than 17 years. Moreover, the investigation is already over and the charge-sheet had been filed and the trial will take considerable time. Therefore, after considering facts and circumstances of the case, the Court observed that Trial Court erred in dismissing the application filed by the appellant under Section 439 CrPC. [Gulab Pal v. State of Madhya Pradesh, 2019 SCC OnLine MP 3677, decided on 13-11-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J., allowed a bail application subject to stringent conditions in child sexual harassment case on the ground that no prima facie offence was made out and the accused already suffered detention for 40 days. 

The prosecution had alleged that the victim aged 13 years was given a lift on a scooter by the petitioner, and the petitioner took the victim to an isolated house and pressed his chest and then kissed his lips, etc. 

Counsel for petitioner, T.K. Vipindas, contended that the allegations are false and fabricated. He also argued that the facts in the FIS do not fulfill the ingredients of Section 377 of the Penal Code, 1860. No allegations were made that the petitioner indulged in anal penetration or any assault using the genital organ. Thus the offence under Section 377 is not made out in the present case. The petitioner further contended that even admitting the allegations, petitioner committed a non-penetrative assault under Section 7 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 punishable under Section 8 of the POCSO Act. The fact that the petitioner had already suffered detention for 40 days, further detention was not justified and proper, thus considering the nature of allegation the court may release him on bail subject to any strict conditions. 

Public Prosecutor, T.R. Renjith contended that if the petitioner was released on bail there is every possibility that of the petitioner intimidating and influencing the witnesses, victim and his family members. 

The Court after considering the allegations and the fact that the petitioner had already suffered detention for 40 days, was let out on bail, on his executing bond for Rs 40,000 and furnishing two solvent sureties, subject to stringent conditions. The court imposed the following conditions – petitioner has to report to the investigation officer on 2nd and 4th Saturday for three months, he shall not visit victim’s residence or the educational institution of the minor victim, he shall not enter the territorial limits of the police station, where the victim resides. In case of a genuine emergency, the petitioner is allowed to visit the said area after taking permission from the IO. In case of violation of any of the conditions, the court may consider the bail as cancelled. [Rajeevan v. State of Kerala, 2019 SCC OnLine Ker 3993, decided on 06-11-2019]

Hot Off The PressNews

Supreme Court: The bench of R Banumathi, A S Bopanna and Hrishikesh Roy, JJ has  sought a response from the Enforcement Directorate (ED) on an appeal filed by former union finance minister P Chidambaram challenging the Delhi High Court ‘s order dismissing his bail petition in the INX Media money laundering case. The Court issued a notice to the probe agency and posted the matter for hearing to November 26.

Chidambaram sought bail in a case pertaining to the Foreign Investment Promotion Board (FIPB) clearance given to INX Media to the tune of Rs 305 crore in 2007 by Chidambaram when he was the Finance Minister. He was arrested by the ED on October 16 and is currently in judicial custody. Denying bail  to Chidambaram in the case, the High Court had stated that prima facie allegations against him are “serious in nature” and he played an “active and key role” in the offence.

Senior advocates Kapil Sibal and Abhishek Manu Singhvi, appearing on behalf of Chidambaram today, submitted before the top court that their client has been in jail for over 90 days and has cleared the triple test criterion to avail the bail. Chidambaram had sought bail on the health grounds. The Congress leader also asserted that no part of the triple test, which includes flight risk, influencing witnesses and tampering with evidence, has been made out against him. He stated that there was no allegation that he was a flight risk following the issuance of a Look out Circular (LOC).

On October 22, 2019, the bench had granted bail to former Finance Minister and senior Congress leader P Chidambaram in connection with the INX Media case registered by the Central Bureau of Investigation (CBI).

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

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

(Source: ANI)

Case BriefsHigh Courts

Rajasthan High Court: Manoj Kumar Garg, J. allowed bail to a juvenile who was accused of criminal offences on finding his situation to be inconsistent with any of the exceptional circumstances given in Section 12 of the Juvenile Justice Act, 2015.

The petitioner(s) Ridmal Ram, on behalf of juvenile son Neeraj, had his bail plea denied by the Principal Magistrate, Juvenile Justice Board, Barmer and subsequently by the Special Judge (POCSO Act Cases), Balotara. The charges against the juvenile were of being a member of an unlawful assembly, voluntarily causing hurt, wrongful restraint, attempt to murder and theft under Sections 143,323,341,307 and 382 of the Penal Code, 1860 respectively.

Advocate, G.S. Bhati represented the petitioners while Public Prosecutor, A.R. Choudhary argued for the State.

The Court perused the language of Section 12 of the Juvenile Justice Act and found the exceptional cases in which bail can be denied to a juvenile delinquent to be threefold: where there appear reasonable grounds for believing that the release if likely to bring him into association with any known criminal, or expose him to moral, physical or psychological danger, or that his release would defeat the ends of justice.

The Court found the juvenile’s situation to be inconsistent with the circumstances mentioned in Section 12 and thus, set aside the previous orders and allowed the bail petition with the stipulation that on all subsequent dates of hearing, he shall appear before the said court or any other court, during pendency of the investigation/trial in the case and that his guardian shall keep proper look after of the delinquent child and secure him away from the company of known criminals.[Neeraj v. State of Rajasthan, 2019 SCC OnLine Raj 3911, decided on 05-11-2019]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsSupreme Court

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

Case BriefsSupreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court, hence, held,

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

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