Bail

Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J., addressed a bail application revolving around a matter concerning a 20-page suicide note.

Instant application was filed to seek bail in connection with FIR for the offences punishable under Sections 306, 465, 477, 120B and 114 of the Penal Code, 1860.

It was submitted that First Informant was a follower of Khodiyar Dham Ashram and the same was being run by Jayramdas Bapu. It was alleged that on 01-06-2021 he received a call that something happened to Jayramdas Bapu and on reaching the ashram it was noticed that he passed away.

It was alleged that a suicide note by Jayramdas Bapu was found from his room containing 20 pages in which deceased named three accused. It was stated in the note that the accused people caused mental and physical torture to bapu and had recorded the videos of bapu in compromising conditions with some ladies due to which bapu committed suicide.

Further, it was alleged that the death certificate certifying that the deceased passed away of natural death i.e. cardiac arrest with incorrect time of death issued by one Dr Kamlesh Kareliya of Dev Covid Care Center, was in fact issued at the behest of the applicant.

The role, which is sought to be alleged and played by the applicant, is that when he examined the dead body of the deceased, the applicant being a doctor, did not prescribe for the postmortem of the deceased and by issuing such certificate, he had tried to save or shield the main accused.

High Court while granting the bail to the applicant considered following:

(a) The role attributed to the applicants;

(b) The applicant is not named in the F.I.R.;

(c) The applicant is a doctor, who was treating the deceased since last several years;

(d) Prima facie, the F.I.R. reveals that there is no monetary ill-gain by the applicant;

(e) Prima facie, the ingredients of Sections 306, 107 as well as 465 of the IPC are not established in the case of the applicant;

(f) The suicide note, which is left by the deceased does not implicate the applicant in any manner and there are no allegations leveled against the applicant in this regard in the F.I.R.;

(g) Considering the facts of the case, the custodial interrogation of the applicant at this stage is not necessary.

Bench relied upon the following Supreme Court cases:

Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 and

Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694

In view of the above, the present application was allowed.[Nilesh Gopalbhai Nimavat v. State of Gujarat, R/Criminal Misc. Application No. 10810 of 2021, decided on 16-07-2021]

Advocates before the Court:

MR YOGESH LAKHANI, SENIOR ADVOCATE WITH MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1

MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR HIMANSHU K PATEL, APP for the Respondent(s) No. 1

Case BriefsHigh Courts

Punjab and Haryana High Court: H.S. Madaan, J., rejected the bail application of the applicant accused of committing an act of sodomy to an 8 years old child. The Bench stated that,

“He (accused) has spoiled the life of a young child by his hateful acts. The petitioner comes out to be a sex maniac, himself a teenager, indulging in perverse sexual acts. His conduct cannot be taken lightly, since if released on bail, he may victimize several other innocent children and is a grave threat to the society.”

The applicant had been charged with offences under Sections 377, 511 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012. The allegations against the applicant were that at about 3.00 PM, the applicant took the child victim, aged about 08 years, a student of 2nd class from his school on a bicycle by giving him allurement of money and then took him in a room constructed in his field, removed his trouser (lower), took off pants of the child victim and started committing sodomy with him. The child victim started crying on account of pain at which the applicant made him sit on his bicycle and left him near the school premises.

Later on, the child informed his father about the incident; pursuant to which the child was removed to Civil Hospital where he was medico-legally examined; the matter was reported to the police on the basis of which formal FIR was recorded.

Noticeably, the applicant had filed an application for regular bail before Special Judge, Mansa, which was dismissed.

In the backdrop of above, the Bench expressed,

“The allegations against the petitioner are very grave and serious of attempting to commit unnatural sex with a child of young age of 08 years, making him undergo nightmarish and traumatic experience, which may haunt him for the rest of his life.”

Noticing that the applicant, a teenager, who was a sex maniac and was indulged in perverse sexual acts, the Bench stated that he (applicant) had spoiled the life of a young child by his hateful acts and such conduct could not be taken lightly, since if released on bail, he may victimize several other innocent children and was a grave threat to the society.

Hence, opining that there was very likelihood of the applicant giving threats, intimidation or inducement to the prosecution witnesses in an attempt to make them resile from their statements during the trial to enable him to earn acquittal, the Bench held that the case could not be brushed aside lightly. Consequently, the bail application was rejected.[Manpreet Singh v. State of Punjab, CRM-M-9128 of 2021, decided on 09-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Applicant: RVS Chugh, Advocate

For the State: J.S. Ghuman, DAG, Punjab

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed the bail petition with the liberty to file a new bail application more particularly after the statement of the victim is recorded.

The facts of the case are such that the petitioner is a woman aged 32 years on the allegations of indulging a minor girl aged 16 years into flesh trade with strangers, and now incarcerating since 3-1-2021 has come up before this Court seeking regular bail. FIR has been filed under Sections 376, 370, 506, 511, 34 of Penal Code, 1860 i.e.  IPC and Sections 6, 17 & 18 of the POCSO Act and Sections 3, 4 & 5 of Immoral Trafficking Act. A previous bail application was filed and thereby was dismissed as withdrawn.

The Court after adverting to the facts and submissions observed that simply because the victim was unaware or she at that point of time did not choose to inform the police would not make out a case for bail to the petitioner on this ground. The reasons for the victim to run away from her home are very tragic and there was none to take care of her.

The Court observed “The society as well as the State failed to take responsibilities in such type of cases. The petitioner after interacting with the victim realized that she is vulnerable and took advantage of her and allegedly forced her to do sex for money. Thus this is not at all a ground for bail.”

The petitioner relied on two judgments where bail was granted to co-accused and demanded bail on parity. The Court observed that a perusal of such clearly mentions that the bail in both the above bail petitions was granted on the facts and circumstances peculiar to the petitioner(s) and it was not a ground of parity. 

The Court held “Prima facie the allegations point out towards the petitioner, who is the main accused. She acted like a pimp and such type of persons are not entitled to any bail.”

[Renu Devi v. State of HP, Cr. MP (M) No. 1282 of 2021, decided on 14-07-2021]

Appearances:

For the petitioner: Mr Karan Singh Kanwar

For the respondent: Mr Nand Lal Thakur and Mr Ram Lal Thakur

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Tis Hazari Courts, Delhi: Ankur Jain, ASJ (SFTC-01), addressed a regular bail application filed under Section 439 of the Criminal Procedure Code.

In the present bail application, it was stated that the accused was in Judicial Custody since 3-07-2021.

It was submitted that the accused and complainant were in a live-in relationship. Complainant being a lady of about 47 years divorced for 17 years could not be fallen prey to the false promise of marriage.

Subhash Chouhan, Addl. PP for the State, objected to the bail application on the ground that allegations against the accused were serious in nature, accused absconded, hence process under Section 82 CrPC was issued against the accused.

Bench noted that the last incident of sexual intercourse between the complainant and the accused was on 6-12-2020, admittedly as per the complainant, they were in a live-in relationship.

FIR was lodged on 17-02-2021, hence there was a delay in the registration of the FIR.

Court granted bail to accused/applicant without commenting anything further, on a personal bond of Rs 50,000 with one surety like amount on the following terms and conditions:

i) Accused shall not contact or threaten the complainant or any other witness in any manner.

ii) The accused shall mark his presence on every second Saturday, of the first month, of every quarter, before IO/SHO concerned either physically or through any other mode which shall be the sole discretion of the IO / SHO.

iii) Accused shall provide his mobile number to the IO/SHO and shall remain present on the date fixed for trial.

[State v. Jagjit Singh,Bail Application No. : 2795, decided on 13-7-2021]

Advocates before the Court:

Sh. Subhash Chouhan, Ld. Addl. PP for the State.

Sh.G.S. Sachdeva, Ld. counsel for the accused/applicant (through VC).

Ms. Aarti Pandey, Ld. DCW counsel (through VC).

Complainant is present (through VC).

Naib Court HC Ankit Dahiya.

Case BriefsDistrict Court

Court of Judicial Magistrate, Patuadi, Gurugram: Mohd. Sageer, Judicial Magistrate 1st Class, while addressing the present matter, remarked that:

“Freedom of speech has to be an integral part of any democratic country as in ours. However, this freedom has its own limitations and reasonable restrictions.”

“Every citizen has a right to express his thoughts but not in a manner to target a particular community and promoting enmity.”

Applicant’s counsel submitted that the applicant was innocent, and the case was false and concocted.

Counsel for the accused submitted that his client was made scapegoat. Adding to his submissions, counsel stated that the Mahapanchayat was not organized by his client and eve before his client/accused spoke, there were several other orators who used offensive languages and hate speech but only his client was made accused and was further arrested as he was an outsider with no political connections.

Further, the counsel contended that there were other orators who were powerful persons who gave inflammatory speeches but no action against them was being taken. Adding to this submission, Counsel mentioned about bias attitude of Haryana Police since the police gave only a video clip whereas he had the whole recording in his mobile and submitted that he will give the same before the court to prove the biasness towards accused.

Lastly, counsel argued that due to the early inflammatory speeches of other persons and charged atmosphere, the accused got carried away and that keeping in view the young age and innocent mind, he be released on bail.

Analysis, Law and Decision

Liberty of a citizen is undoubtedly important, but this is to be balanced with the security of the community as held in the Supreme Court decision of Col. Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458.

Bench stated that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course.

The necessary factors before granting bail:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima-facie satisfaction of the court in support of the charge.

In Supreme Court’s decision of Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it was held that,

Just as the Liberty is precious to an individual, so is society’s interest in the maintenance of peace, law and order. Both are equally important. While elaborating the value of one’s liberty, it was also held that at the same time “liberty” without restraints would mean liberty won by one and lost by another. So “liberty” means doing anything one desires but subject to the desire of others.

In the present matter, a Video Recording presented by the IO of the case was seen in the open Court, in which the IO indicated and located the accused person. Bench noted the accused’s counsel himself admitted that person who was giving an inflammatory speech in the Video recording at the time of occurrence was the present accused.

Hence, in view of the above-stated, it was clear that the defence tried to mislead the Court.

Court expressed that it was clear on perusal of the FIR and the video recording available that a gathering was present where the accused gave hate speeches and used inflammatory language, raised slogans in the name of religion to kill persons of particular religious community.

In High Court’s opinion, the prima facie reliability of the video clip produced before the court cannot be questioned.

Conscience of the Court is utterly shocked while seeing the actual incidents which took place at that time, in video recording. It seems that now a normal parent would tell stories to their children that there used to be a time when talks of hatred or the religious intolerance in our society used to be seen as a sign of diminishing social values.

Bench added that the video produced had raised a very vital question – Do our society need to tackle the in discriminative force of pandemic of COVID-19 first or these kind of persons, who are filled with so hatred that if given chance they would organize a mass murderer mob to kill innocents lives based on their own religious hatred.

Further, the Court stated that as per the information of IO and admitted by the counsels of the accused this is the same person who this nation had witnessed brandishing illegal weapons and opening fire towards the students of the one Central University of Delhi.

An FIR was registered against the accused in the year 2020. Counsel for the accused stated that he was allegedly minor at that time. Concession given by the courts of law due to his minority had not been taken in a good sense by the accused.

In view of the above, Court remarked:

“…it seems that he has taken the concession in wrong perspective that he can do anything even to destroy the very fundamental feature of the constitution which we called “secularism” by his hate speech and also that there is no force to stop him as if he is protected by some indefeasible forces and the Rule of Law does not exist in our country.

He has posed a real threat by his act that he will do whatever he wishes, what will the forces responsible for maintaining law, order and peace would do? He also posed a question to the state and to the courts of law whether it has power to uphold the Rule of Law?”

Bench expressed that no one can be allowed to ignite fire to religious riots only because he has freedom of speech and he can blow hatred towards a particular group or religious community.

If right of freedom of speech is allowed to be used to spread hatred amongst the people based on religion, caste etc then the very basic nature of the constitution and Indian Society will be shattered and the country will lose its true spirit and soul.

Conclusion

While concluding the decision, High Court held that the accused was seen addressing the mob instigating them for doing unlawful acts and further instigating them for the abduction of girls of a particular community and their forceful conversion. He even instigated to kill persons of a particular community and chanted slogans in this regard.

Further, the Bench stated that his acts were prejudicial to the maintenance of harmony between different religious communities and to disturb the public tranquillity.

Bench added that the police also seemed to be helpless in dealing with such incidents of hate speech.  These kinds of activities are actually disturbing the secular fabric of our Country and killing the spirit of the Constitution of India.

Court added that Peace is the essence and sine qua non for development and civilized society. Anyone who is a threat to the peace of the society and particularly to religious harmony, cannot be allowed to roam freely.

Incidents such as the one in the instant matter have become very common now-a-days and the common man is under constant threat of violence in the name of religion, caste, etc. The said incident cannot be seen only with respect of young man’s religious intolerance rather it is far more serious and having dangerous hidden consequences.

The faith of common man has to be restored that the State is having the Secular character and not in support of such kind of persons, promoting hatred and enmity in the name of religion, caste etc. It is the time to give a strong message to such anti-social elements who distribute hatred based on religion etc by way of Hate speech, the Rule of Law still prevails.

Further, with respect to bail, bench stated that enlarging the accused on bail despite his heinous crime which amounts to divide of the peaceful society on the basis of religion or caste would give the wrong message to the divisive forces.

However, restraining the accused behind the bars will send a strong message against the divisive forces by saying that India is an inclusive society where people of all faiths flourish with mutual respect and the Courts of Law will ensure that the Rule of law reigns supreme.

Hence, The act of the accused i.e. hate speech qua instigating abduction and killing of girls and persons of a particular religious community is itself a form of violence and such people and their inflammatory speeches are obstacles to the growth of a true democratic spirit.

“…consequences of these kinds of activities may be far more dangerous and it may translate into communal violence.”

Therefore, bail application of the accused was dismissed. [State of Rambhagat Gopal Sharma, FIR No. 265, decided on 15-07-2021]

Advocates before the Court:

Sh. S.P. Gothwal, APP for the State, assisted by IO SI Ramniwas-195/GGN, PS Pataudi.

Sh. Avinash Mishra, Sh. Kulbhushan Bhardwaj and Sh. Lokesh Vashisht, Advocates for accused/applicant Rambhagat Gopal Sharma.

Case BriefsSupreme Court

Supreme Court: In a corruption case involving misappropriation of more than Rs 30.00 crores, the Division Bench comprising of Indira Banerjee and V. Ramasubramanian, JJ., granted bail to Alok Kumar Agrawal, former In-charge Executive Engineer of Chhattisgarh’s Water Resources Division, who was booked under Prevention of Money Laundering Act, 2002.

The allegation against the applicant was that while he was posted as In-charge Executive Engineer, Water Resources Division – Bilaspur, a public servant, in conspiracy with other accused, prepared forged documents and records and thereby misused and abused his official position and not only caused financial loss to the Government but also amassed huge wealth to the extent of more than Rs. 30.00 crores by corrupt and illegal means which was alleged to be disproportionate to his known sources of income.[i]

Initially, an FIR was registered by the Economic Offences Wing –Anti Corruption Bureau against the applicant for alleged commission of offence punishable under Sections 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 and Sections 109, 120-B, 420, 467, 468 and 471 of the Penal Code, 1860 and the EOW-ACB charge-sheeted the applicant on 15-06-2015. Since these offences were scheduled offences, the Directorate of Enforcement (ED) registered a case under the Prevention of Money-Laundering Act, 2002 against the applicant. The applicant had been in custody since 11-10-2018.[ii]

Considering the arguments of the applicant and the stand taken by the Enforcement Directorate, the Bench granted bail to the applicant on the following grounds:

  1. His disability;
  2. The fact that he has been released on bail in connection with the FIR for the scheduled offences on 23.08.2019; and
  3. That he is under detention in connection with the complaint under the Prevention of Money Laundering Act from October, 2018. In other words, the petitioner had undergone more than 2½ years of imprisonment even in connection with the complaint under the PMLA.

[Alok Kumar Agrawal v. Directorate of Enforcement, Special Leave to Appeal (Crl.) No(s). 544-545 of 2021, decided on 12-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For Petitioner(s): Siddharth Mittal, Adv., Prabhat Kumar, Adv. and Manju Jetley, AOR

For Respondent(s): Tushar Mehta, SGI, Zoheb Hussain, Adv., Sairica Raju, Adv., Kanu Aggarwal, Adv. and Mukesh Kumar Maroria, AOR

[i] Alok Kumar Agrawal v. State of Chhattisgarh, 2017 SCC OnLine Chh 512

[ii] Alok Kumar Agrawal v. Directorate of Enforcement, MCRC No. 6533 of 2019

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hemant Gupta, JJ. found that direction passed by the Gujarat High Court requiring the appellant-accused to deposit a sum of Rs 2 lakhs each towards compensation to the victims, as a condition for grant of bail was not sustainable.

Backdrop

An unfortunate incident of a free fight took place between rival groups in November, 2019 after which two victims succumbed to their injuries. FIR was filed in Amreli Police Station in which the present appellants were also arrayed as accused. Appellants were arrested. They applied for bail and in December, 2020, bail was granted by the High Court.

The Controversy

While granting bail to the appellants, the High Court imposed a condition on the appellants requiring them to deposit Rs 2 lakhs each as compensation to the victims before the trial court within a period of three months.

Aggrieved by this direction, the appellants approached the Supreme Court contending that there is no such provision in CrPC that entitles the Court to impose such a condition for payment of compensation for the grant of bail. It was submitted that the High Court imposed above-mentioned condition for bail in view of the “amended provisions” relating to victim compensation; however, it did not refer to any specific provision.

Condition Not Sustainable

After referring to various provisions of CrPC including Section 357 (Order to pay compensation), Section 235 (Judgment of acquittal or conviction) and Section 250 (Compensation for accusation without reasonable cause), the Court concluded that:

“In our view the objective is clear that in cases of offences against body, compensation to the victim should be a methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail.“

The Court hastened to add that it did not mean that no monetary condition can be imposed for grant of bail. It said:

“We say so as there are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take place as a condition of the person being enlarged on bail.“

Concluding as above, the Court held that the direction contained in the impugned order for deposit of compensation of Rs 2 lakhs for the legal heirs of the deceased, naturally cannot be sustained and has to be logically set aside.

Bail Granted

The Court also considered whether bail should be granted to the appellants, and if so, on what terms and conditions. In this context, the appellants contended that the specific allegations against them was that they had beaten the complainant and the witnesses and not any of the deceased. It was a case of a free fight between two groups where each alleged the other to be the aggressor. Not only that, the other accused persons had been granted bail without imposing the aforesaid condition.

The State could not dispute the role of the appellants vis-a-vis the role of the other accused persons who had been enlarged on bail.

In such view of the matter, the Court considered it appropriate to impose the same terms and conditions for grant of bail upon the appellants as imposed on the other accused persons. The condition impugned and set aside above was substituted with the condition that the appellants will not enter the geographical limits of Amreli for a period of six months except for marking presence before the police station concerned and to attend the court proceedings. [Dharmesh v. State of Gujarat, 2021 SCC OnLine SC 458, decided on 07-7-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

 

Case BriefsCOVID 19High Courts

Chhattisgarh High Court: Narendra Kumar Vyas, J., rejected bail and dismissed the petition being devoid of merits.

The facts of the case are such that the petitioners are engaged in trading of gold and silver ornaments in shop owned by petitioner 1 situated at Rajnandgaon where search and seizure was conducted upon receiving an intelligence output. The petitioners were thereby arrested by respondent authorities for alleged commission of offence under Section 135 of the Customs Act, 1962 (for short “the Act, 1962”) and was also held to be an offence under provision of the Money Laundering Act, 2002 (for short “the Act, 2002”) by Enforcement Directorate (ED). The petitioners moved an application for grant of interim bail for 90 days before Chief Judicial Magistrate, Raipur as per direction of Supreme Court in the matter of Suo Motu Petition (C) No. 01/2020 in Contagion of Covid 19 Virus in prisons for releasing them for 90 days looking to the present scenario of pandemic Corona (Covid-19) which was rejected. Assailing this, instant writ petition under Article 226 of the Constitution of India for grant of interim bail was filed.

Relevant recommendation made by the High Power Committee on 12.05.2021 reads as under:

“Criteria for release of Under trial prisoners:

“…… The under trial prisoners, who are satisfying the following criteria shall be released:

  1. Under Trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 07 years or less;
  2. Under trial prisoners (UTPs), who are senior citizens of 60 or more than 60 years of age and are in custody for three months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less”

“It has further been resolved that following category of UTPs, even if falling in the above criterion should not be considers:-

  1. Those under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act)/ PMLA; and
  2. Case investigated by CBI/ED/NIA/Special Cell, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc.”

The Court observed that as per the submission of the petitioners it is clear that that as per Section 135 (1)(b) of the Act, 1962, the case of the petitioners is squarely covered in clause 3 of recommendation issued by the High Power Committee, which provides that the under trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less shall be released, whereas it reflects from clause 5 & 6 of the recommendation as mentioned above that person belong to the under trial prisoners category even if following in the above criterion should not be considered for release. The under trial prisoners, who are facing trial under Prevention of Corruption Act/ Prevention of Money Laundering Act, 2002 and cases investigate by CBI/ED/NIA/ Special Cell, Crime Branch, SFIO, Terror related cases, Riot cases, under Anti-National Activities and Unlawful Activities (Prevention) Act etc., are not entitled to be released.

The Court observed that prima facie it is established that the petitioners are habitual offenders and are very much involved in smuggling of gold and silver, which is injurious to economic growth of the nation. Further, the investigation is in a primary stage and may take some time, and since they are big financial resource persons, possibility of influencing the witnesses, cannot be ruled out.

The Court relied on judgment State of Kerala v. Mahesh, Criminal Appeal No. 343 of 2021 wherein it was held:

“37. In Suo Motu Writ Petition (Civil) No.1 of 2020 In Re: Contagion of Covid 19 Virus In Prisons, this Court expressed concern over the possibility of spread of COVID-19 amongst prisoners lodged in overcrowded correctional homes and accordingly issued directions from time to time, directing the authorities concerned to inter alia take steps as directed by this Court, to minimize the risk of spread of COVID amongst the inmates of correctional homes. This Court also directed that a High Powered Committee be constituted by the States and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons.

  1. It appears that the High Court has completely mis- appreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespective of the severity of the offence. By way of example, this Court directed the States/Union Territories to consider release of prisoners convicted of minor offences with prescribed punishment of seven years or less. The orders of this Court are not to be construed as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the chargesheet is filed. The Respondent Accused, it is reiterated, is charged with murder in the presence of an eye witness, and the impugned order granting bail was filed even before the chargesheet was filed. The Chargesheet appears to have been filed on 01.01.2021. Moreover, the Respondent Accused had been absconding after the incident.”

The Court thus held “The possibility of the accused /petitioners absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered, therefore, the petitioners are not entitled to get benefit from order of the Supreme Court and the recommendation of the High Power Committee.” [Vijay Baid v, Assistant Director, Director of Revenue Intelligence, 2021 SCC OnLine Chh 1952, decided on 07-07-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For Petitioners: Mr. Shashank Thakur

For Respondent: Mr. Ramakant Mishra

Case BriefsSupreme Court

Supreme Court: The Bench of N.V. Ramana, CJ and A.S. Bopanna and Hrishikesh Roy, JJ., reversed the order of the Rajasthan High Court granting bail to the accused alleged to have conspired in the murder of her sister’s husband.

Background

In the instant appeal, it was alleged that respondent 2 was the main conspirator in the crime leading to the killing of the husband of the appellant. Appellant was aggrieved by the impugned order whereunder respondent 2 was had been ordered to be enlarged on bail.

Issue

A complaint was filed for the offence under Sections 302, 452 and 120B of the Penal Code, 1860. The Mother-in-law of the appellant, who was the mother of the deceased had lodged the said complaint.

Honor Killing

According to the complainant and appellant herein, the husband of the appellant had been killed by the family members of the appellant as an honor killing since they had not agreed to the marriage between the deceased and the appellant.

Grievance

High Court had without taking into consideration all the aspects of the matter had enlarged respondent 2 on bail in a mechanical manner through an order bereft of reasons.

Analysis, Law and Decision

Supreme Court noted that the impugned order referred to the contention of respondent 2’s counsel that this Court had cancelled the bail earlier.

Further, documents already taken note by this Court indicated that there was prima facie material against respondent 2. Though, wife of the deceased had been examined and contention was put forth with regard to her statement, it was not the evidence in its entirety and it would be premature to conclude on the basis of a stray sentence. Further, merely classifying the appellant as the principal star witness and referring to her statement is of no consequence since the entire evidence will have to be assessed by the Sessions Court

In Court’s opinion, Rajasthan High Court’s order impugned herein was not sustainable. The same was accordingly set aside and the bail granted to respondent 2 was cancelled. Hence, Supreme Court directed respondent 2 to surrender before the Court of Upper District and Sessions Judge.

Taking into consideration the nature of the offence, it is appropriate that the trial be concluded at the earliest. The trial court shall therefore make all efforts to conclude the trial and dispose of the case as expeditiously as possible but in any event not later than one year from the date of receipt of a copy of this order.

In view of the above discussion, appeal was allowed. [Mamta Nair v. State of Rajasthan, 2021 SCC OnLine SC 462, decided on 12-07-2021]

Advocates before the Court:

Ms. Indira Jaising, Senior Counsel for the appellant, Shri H.D. Thanvi, Government Advocate for the State of Rajasthan, Shri V.K. Shukla, Senior Counsel for respondent 2.

Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi J. allowed the bail application. by imposing some stricter terms and conditions and made clear that any of the observations made shall not prejudicially affect the fair trial of the present case.

The petitioner is the National Chairman of Dharma Rakshyak Shri Dara Sena and is accused of uploading a message in a WhatsApp group urging people to join him on a mission to assault the former Chief Justice of India i.e. CJI with shoes when the Bench headed by the CJI refused to give permission for observance of the CAR FESTIVAL (Rath Yatra) in the year 2020 at Puri. He believed that the former CJI is solely responsible for halting the Rath Yatra and aggrieving Hindu sentiments and therefore portrayed the former CJI as a Naxalite and Christian Terrorist and also allegedly made provocative statement inciting hatred and communal disharmony among the people of the nation. He was booked for commission of offences punishable under Sections 153/153-A/153-B/295-A/504/505/506 of the Penal Code, 1860 i.e. IPC read with Section 66(F) of the Information Technology Act,2008 i.e. IT Act. The petitioner filed instant bail application.

The Court considered the submission made by the petitioner and relied on judgment Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 wherein it was observed

“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept inmind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

The Court thus held “this Court is inclined to allow the prayer of the petitioner.

It also held “Accordingly, the court in seisin over the matter will enlarge the petitioner on bail by imposing some stricter terms and conditions.”

[Mukesh Jain v. State of Odisha, BLAPL No. 3740 of 2021, decided on 06-07-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

Counsel for petitioner: Adv. J. Samantaray

Counsel for respondent: Adv. Mr. M.K. Mohanty

Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J., granted anticipatory bail to the applicant who had filed the application apprehending arrest in respect of registration of crime punishable under Section 376(2) (n) of Penal Code, 1860

The counsel for the applicant, Mr Ravi Dwivedi and Mr Atul Gupta submitted that as per the contents of FIR itself, applicant and prosecutrix were in live-in relationship for almost a year and when relationship turn soured and applicant proceeded to marry with some other girl, then this case has been filed as a counterblast to exert pressure. The counsel further contended that offence of rape prima facie cannot be made out on the basis of promise of marriage and here the parties lived as couple in live-in relationship. He added that confinement amounts to pretrial detention. The counsel assured that the applicant undertakes to cooperate in the investigation/trial and would not be a source of embarrassment and harassment to the complainant party in any manner and shall not move in her vicinity.

The Court considering the fact situation of the case and in view of COVID-19 pandemic as well as looking to the mandate of Supreme Court in the case of Aparna Bhat v. State of M.P, 2021 SCC OnLine SC 230 allowed the application. The Court further directed that the applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to the Police Officer. He was further directed not to move in the vicinity of prosecutrix and shall not be a source of embarrassment and harassment to her in any manner.[Mayank Tiwari v. State of M.P., M.Cr.C. No.31444 of 2021, decided on 28-06-2021]

Case BriefsHigh Courts

Punjab and Haryana High Court: Harnaresh Singh Gill, J., rejected anticipatory bail to the persons involved in Hooch tragedy. The Bench said,

“One cannot lose sight of the various such like hooch tragedies reported in the recent past from different parts of the country, all leading to death of many number of persons from the marginalized sections of Society.”

The brief facts of the case were such that the petitioners had been booked under Sections 328, 272 and 120-B IPC, Sections 326, 109 and 114 IPC and Sections 61 and 63 of the Punjab Excise Act, 1914. Similarly, another case had been registered against him under Sections 302, 304, 328, 326, 109 and 120-B IPC, Sections 61 and 63 of the Punjab Excise Act and Section 6 of Poisons Act, 1919 with regard to the Hooch tragedy wherein number of persons had either died or lost their eye-sight due to consumption of illicit spurious poisonous liquor supplied by the accused like the petitioner. The said hooch tragedy causing mayhem, had led to a massive public outcry. As per the FIR, the petitioner along with the co-accused had been involved in supplying/selling the illicit spurious country made liquor and alcohol. Such liquor containing poisonous substance was sold to habitual drunkard from the poor strata of the Society, as a result of which, many people had lost their eyesight either completely or partially, besides the death of one Sukhwinder Singh-accused.

On the other hand, the petitioner contended that neither the petitioner was named in the FIR nor any recovery was effected from him yet he had been in custody for the last 10 months, approximately.

Opining that the petitioner was accused of a gruesome crime against the society at large and that the modus operandi and the mens rea behind preparation of spurious country made liquor with the objective of selling it to the people from the underprivileged sections of Society, was a well thought-out design and the same has eaten into the very roots of the Society. The Bench remarked, one cannot lose sight of the various such like hooch tragedies reported in the recent past from different parts of the country, all leading to death of many number of persons from the marginalized sections of society. Opining that as the people used to substance, go berserk under the allurement of the said liquor being cheap, none can speak of their prudence, at the dangling moment of addiction. It was the state of these hapless people, which was taken benefit of by the people like the petitioner, the Bench held that,

“If such kind of persons were released on bail, they would further decay the very system of the Society and their such acts would render the Society full with widowed women; orphaned children and old and infirm parents with full of woes and sorrow tales.”

The matter could be looked at from another angle. The greed of the accused like the petitioner was to earn money at the costs of lives of the innocent and poor people for mere monetary benefits, the Bench added, “if anyone plays havoc and commits brutality of killing the people through passive mode(s), such person having snatched from others the right to live with dignity, does not deserve any kind of leniency and has to be dealt with iron hands.” Thus, holding that the criminal antecedents of the petitioner speak volumes about him, the Bench dismissed the instant application for bail.  [Avnash Singh v. State of Punjab, CRM-M-23925-2021, decided on 02-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Mr. Vikas Gupta, Advocate

For the State of Punjab: Mr. H.S.Sitta, AAG, Punjab

Experts CornerKapil Madan

Introduction

The provision of bail goes back to the medieval times of Magna Carta which was drafted 800 years back and described as the keystone of individual liberty and has been consistently followed in India. Clause 39 of the Royal Charter of the Magna Carta provided that “no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived if his standing in any other way, nor will he be proceeded against with force, except by the lawful judgment of his equals or by the law of the land”.

 

The presumption of innocence is the cardinal rule of our criminal justice system and also finds its roots under Article 21 of the Constitution of India. The  Supreme Court in several judgments have reiterated that “bail is the rule and jail is the exception”. Since presumption of innocence is attached to all the accused persons and as such they may be given the opportunity to look after and defend their own case. The Supreme Court in Sanjay Chandra v. CBI[1] has also echoed that the accused has a better chance to prepare and present his case while he is out on bail in the following words:

 

  1. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted.

 

Furthermore, the Supreme Court in Sanjay Chandra case[2] and State of U.P. v. Amarmani Tripathi[3], has observed that the following factors among others may be considered while deciding the bail application:

 

  1. 11. … (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

 

Most recently the Supreme Court in P. Chidambaram v. Directorate of Enforcement[4] has reiterated the “triple test” that may be satisfied for grant of bail and the same is as under:

  1. That the accused is not at “flight risk.”
  2. That there are no chances of tampering with evidences.
  3. That there is no likelihood that the accused shall influence the witnesses.

 

Offence of Money Laundering and Bail

Short History of PMLA

The Prevention of Money Laundering Act, 2002 (PMLA) was passed by Parliament in the year 2002 and it was notified on 1-7-2005. The primary object of the Act is to make money laundering an offence, and to attach the property involved in the money laundering.

 

Money laundering is a process where proceeds of crime generated out of scheduled offence is introduced as untainted money into the stream of legitimate commerce and finance. Section 2(1)(u)[5] defines proceeds of crime as under:

“proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property.

 

Section 45 (Pre-Amendment)

By virtue of Section 45, PMLA departs from the rule of presumption of innocence in as much as it introduces two further pre-conditions that may be satisfied before an accused can be enlarged on bail. Section 45 is reproduced hereinbelow for ease of reference:

 

Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

 

History of  Section 45

It is submitted that Section 45[6] originally applied to Part A appended of the Schedule appended to the Act that contained only two offences i.e. Sections 121 and 121-A of the Penal Code, 1860 (IPC) that dealt with waging or attempting to wage war or abetting waging of war against the Government of India, and conspiracy to commit such offences. Part B of the Schedule, as originally enacted, referred to certain offences of a heinous nature under the IPC and even the most heinous offences under the IPC were contained only in Part B, so that if bail were asked for such offences, the twin conditions imposed by Section 45(1) would not apply.

 

It is worthwhile to observe that an interesting amendment was made in 2012 by virtue of Act 2 of 2013 whereby the entire Part B of the Schedule was transposed into Part A of the Schedule meaning thereby that the rigours of Section 45 will now apply to all the erstwhile offences that were earlier contained in Part B of the Schedule.

 

Constitutional Validity of the Rigours of Section 45

The Supreme Court had an occasion to consider the constitutional validity of the twin conditions as imposed under Section 45 in Nikesh Tarachand Shah v. Union of India[7] where the Supreme Court was pleased to struck down the said two conditions by declaring the same being violative of Articles 14 and 21 of the Constitution of India. The Supreme Court gave the following reasons while striking down the said provision:

 

  1. A person may be enlarged on bail for the scheduled offence however while considering the bail in the PMLA proceedings, the same accused has to satisfy the test as laid down in Section 45 qua the same schedule offence for which he is already on bail. Even if the accused is acquitted in the schedule offence, even then he has to satisfy the rigours of Section 45 qua the same offence for which is already acquitted.
  1. Section 45(1) leads to a problematic situation as the impugned twin conditions has no nexus to the offences under the PMLA. The Court while granting or rejecting the bail does not apply its mind to whether the person is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. This again leads to a manifestly arbitrary, discriminatory and unjust result which would invalidate the section.
  1. There is no provision under PMLA which excludes the grant of pre-arrest bail. This again leads to an extremely anomalous situation as a person may be granted anticipatory bail without satisfying the twin conditions for an offence under money laundering together with an offence under Part A of the Schedule, however if such person happens to be arrested for the same offences, in order to get regular bail, he has to first satisfy the twin conditions under Section 45.
  1. Section 45 is a drastic provision which turns the presumption of innocence on its head, which is fundamentally detrimental to a person accused of any offence. Before application of a section which infringes the personal liberty guaranteed by Article 21 of the Constitution of India, the Court must be doubly sure of the fact that such a provision furthers a compelling State interest for tackling serious crime. In the absence of any such compelling State interest, the indiscriminate application of the impugned conditions of Section 45 will certainly violate Article 21 of the Constitution.

 

In view of the above the Supreme Court declared Section 45(1) of the PMLA, insofar as it imposes twin conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India.

 

Position Subsequent to the Amendment under Section 45, PMLA ACT

Pursuant to the Nikesh Tarachand[8] case, Section 45 was amended w.e.f. 19-4-2018 vide Finance Act, 2018 (No. 13 of 2018) wherein for the words “punishable for a term of imprisonment of more than three years under Part A of the Schedule”, the words “under this Act” were substituted in Section 45(1) of the PMLA.

 

Section 45- Pre-Amendment

Section 45- Post-Amendment
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless:

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail….

 

  

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence (under this Act) shall be released on bail or on his own bond unless:

 

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

 

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail….

 

 

Aftermath of the Amendment under Section 45, PMLA

The aforesaid Amendment in Section 45 has again sparked a debate where it is usually argued on behalf of the prosecution that the defects as pointed out in Nikesh Tarachand has been remedied. It is worthwhile to mention that the above argument does not hold any water in view of the following:

  1. Revival or resurrection of the impugned twin conditions by way of an amendment would again result in negating the presumption of innocence which is attached to any person being prosecuted of an offence and would certainly create drastic inroads into the fundamental rights of personal liberty guaranteed by Article 21 of the Constitution of India. The amendment in no manner can be said to remedy the defect qua the violation of Article 21 of the Constitution of India.
  1. The Supreme Court had an occasion to deal with the amended Section 45 in Chidambaram v. Directorate of Enforcement[9] where the Supreme Court took cognizance of amendment ensued to Section 45 and yet the bail was decided without satisfying the rigours of amended Section 45.
  1. It is submitted that the Bombay High Court in Deepak Virendra Kochhar Directorate of Enforcement[10] while dealing with the new amended Section 45 has held as under:

“… In view of clear language used in para 46 of the Supreme Court decision in Nikesh Tarachand Shah[11], Court has no hesitation in reaching a definite conclusion that amendment in sub-section (1) of Section 45 of PMLA introduced after the Supreme Court decision in Nikesh Tarachand Shah[12] does not have effect of reviving twin conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of Constitution of India….”

  1. Further, a similar view was taken by the Delhi High Court in Sai Chandrasekhar Directorate of Enforcement[13], Patna High Court in Ahilya Devi v. State of Bihar[14], Manipur High Court in Okram Ibobi Singh v. Directorate of Enforcement[15], Madhya Pradesh High Court in Vinod Bhandari v. Director[16] wherein the courts reiterated the observations laid down in Nikesh Tarachand case[17] and held that the Amendment in Section 45 no manner revives or resurrects the twin conditions that were struck down by the Supreme Court in Nikesh Tarachand[18] case.

 

Conclusion

Therefore in view of the above, it can safely be concluded that the twin conditions as imposed by the Section 45 of PMLA cannot be looked into while deciding the bail application as the same are violative of Articles 14 and 21 of the Constitution of India.

EXPERT OPINION

1. In absence of compelling state interest (offences under TADA, NDPS), the laws impinging the presumption of innocence will be in teeth with Article 21 of the Constitution of India.

2. The restrictions imposed by the special statutes on the power of the Court to grant bail must not be pushed too far that it deprives the accused of his Fundamental Rights or else the presumption of innocence secured only after centuries of struggle would lose its meaning.

† Partner, KMA Attorneys.The author can be contacted at kmadan@kmalawoffice.com or +91-9971305252.

††  Associate, KMA Attorneys.

[1] (2012) 1 SCC 40.

[2] Ibid.

[3]  (2005) 8 SCC 21.

[4] (2020) 13 SCC 791.

[5] PMLA Act, 2002

[6] Ibid.

[7] (2018) 11 SCC 1.

[8] Id.

[9] (2019) 9 SCC 24.

[10] Crl. Bail Application No. 1322 of 2020, order dated 25-3-2021 (Bom).

[11] (2018) 11 SCC 1.

[12] Id.

[13] 2021 SCC OnLine Del 1081.

[14] Crl. Misc. No. 41413 of 2019, decided on 28-5-2020 (Pat).

[15] 2020 SCC OnLine Mani 365.

[16] 2018 SCC OnLine MP 1559.

[17] supra note 7.

[18] (2018) 11 SCC 1.

Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J., dismissed an application filed by the Petitioner with a prayer for grant of bail on behalf of Habibul Islam who is one of the accused in Special (POCSO) case, pending in the court of the Special Judge(POCSO).

Petitioner narrated that on 21-08-2020, an FIR was lodged by the informant stating that on 20-08-2020 at about 5.30 pm, when he came home, he saw his minor daughter, aged about 16 years 8 months profusely bleeding and on enquiry, he was informed that she was abducted and gang-raped by three persons. The Informant then took her to the Phulbari Police Station and then to the Phulbari PHC from where she was referred to the Maternity and Child hospital, Tura for admission.

Mr S.A. Sheikh, Counsel for the Petitioner had submitted that the said FIR was lodged only as a counter blast to the fact that admittedly, there was a love affair between the alleged victim and the accused person herein, but for the fact that she is still a minor, being about 17 years of age. However, there were evidence of exchange of message through whatapps/Instagram Messenger and Facebook between the two, which messages were deleted by the victim after the said incident. He further submitted that preliminary Charge Sheet was filed in the case and the deposition of the victim was recorded by the Trial Court on 09-04-2021, the next date fixed being 23-05-2021 when the case was not taken up due to the prevailing situation and thus further custody of the accused will not serve any purpose. Furthermore, it was submitted that the accused is innocent of any offence as alleged since the medical report of the victim had shown that there was no sign of sexual assault, the fact that the accused was a college student who was pursuing his final year B.A. from South Salmara, College under the Gauhati University is also one of the grounds taken for consideration by this Court.

Mr H.Kharmih, the G.A. appearing on behalf of the State submitted that the question of love affair between the victim and the accused person cannot be established inasmuch as the victim has given her statement clearly indicating that she was raped by three persons including the accused person herein.

The Court reiterated another portion of the Supreme Court judgment of Dataram Singh v. State of U.P., (2018) 3 SCC 22 which was relied on by the Counsel of the petitioner. The Supreme Court had said,

“6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to the incapable of compliance, thereby making the grant of bail illusory”

The Court held that in the present case centers upon an accusation of not only rape simpliciter, but gang rape, that is, a case of sexual assault by more than one person and thus the Court would view the matter seriously with circumspective.

The Court while dismissing the application held that it would not be wise to release the accused on bail at this stage. The Court further directed the jail authorities to provide all the necessary facilities even by allowing the accused/UTP to attend his classes via Online mode.[Abdul Kalam SK v. State of Meghalaya,  2021 SCC OnLine Megh 133, decided on 28-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., dismissed a Criminal Revision filed by the petitioner under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The allegation against the petitioner was that he is aged around 15 years old and on 16-01-2021 at around 10.30 AM he had committed rape of a minor girl aged around 10-11 years old whereby she was left bleeding for a prolonged period of time. In her statement to the Police, she has also stated that around three days earlier also, the petitioner had committed rape on her.

Counsel for the petitioner submitted that the Courts have erred in not considering the fact that none of ingredients of the proviso to Section 12 of the Act of 2015 are satisfied in the present case, as there is no evidence or material on record that if the petitioner is released on bail, he is likely to come in contact with known criminal or in the event of hisrelease, he would expose himself to moral, psychological or physical danger; and his release on bail, would defeat the ends of justice.

Court found that so far as the age of the petitioner was concerned, it was 15 years whereas the prosecutrix in the present case was 10 years 4 months and 2 days. Her MLC revealed that she was initially treated at District Hospital, Jhabua on 16-01-2021, wherein it was noted that she was bleeding from her vagina since afternoon and had changed 5-6 pads since then. Later, she was transferred to MY Hospital, Indore for further treatment, from where she was discharged on 21-01-2021 wherein her exploration and repair of posterior vaginal wall operation was also performed.

The Court after perusing the records opined that it was not a fit case to exercise its discretion to release the petitioner on bail. The conduct of the petitioner clearly reveals that he committed the aforesaid offence with full consciousness and it cannot be said that it was committed in ignorance. The Court stated that, “An offence of rape, being carnal in nature, cannot be committed unless a person has the specific knowledge of the same. Thus, his release, in the considered opinion of this court, would defeat the ends of justice.”

The Court while dismissing the petition observed that,

“The Legislature has still not learnt any lesson from the case of Nirbhaya which is reported as Mukesh v. State NCT of Delhi, (2017) 6 SCC 1 as the age of a child is still kept below 16 years in heinous offences under s.15 of the Act of 2015 giving a free hand to the delinquents under the age of 16 years to commit heinous offences. Thus, apparently, despite committing a heinous offence, the petitioner would be tried as a juvenile only, because he is less than 16 years old as provided under Section 15 Act of 2015. Apparently, the present law to deal with such cases is totally inadequate and ill equipped and this Court really wonders as to how many more Nirbhayas’ sacrifice would be required to shake the conscious of the lawmakers of this Country.”

[Sunil (Juvenile) v. State of M.P., Criminal Revision No.853/2021, decided on 25-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Appearance:

Counsel for the petitioner: Mr Vikas Rathi

Panel Lawyer for the respondent / State of M.P.: Ms Poorva Mahajan

Case BriefsHigh Courts

Karnataka High Court: K Natarajan, J., rejected the prayer for bail and dismissed the petition.

The instant criminal petition was filed under Section 439 of the Criminal Procedure Code, praying to enlarge the petitioner on bail for the offences punishable under Sections 363, 343, 114, 506 and 376 read with Section 34 of the Penal Code, 1860 and Sections 4, 17 and 18 of the POCSO Act and Sections 9 and 10 of the Child Marriage Act.

Counsel for the petitioner Mr. M S Venugopal submitted that petitioner and the victim fell in love with each other. Both of them eloped and married in the presence of Mutavali and the marriage is a registered marriage. A copy of the marriage certificate is also produced.

Counsel for the respondent Mr. K. Nageshwarappa and Sharan N Majage submitted that the victim is 17 years and the victim married the accused on 01.10.2020 and her mother was not happy with the marriage and without her consent, she went along with the petitioner-accused. Therefore, prayed for allowing the bail petition.

The Court observed that the age of the victim is 15 years and her consent is immaterial. Though the second marriage is permissible under the Mohammedan Law, but the personal law cannot override the Special Law of POCSO, Child Marriage Restraints Act and General Penal Code of this Country. Merely the parties are Mohammedan that does not mean that the petitioner-accused 1 has right to marry a minor girl by enticing and abducting her. The consent or will of the victim minor girl is immaterial and even if she has voluntarily went with the accused, that amounts to abduction or kidnapping under Section 363 of IPC, got married to her which attracts Sections 9 and 10 of the Child Marriage Restraint Act and sexually assaulted her which attracts Sections 4 and 6 of POCSO Act.

The Court observed even if the minor girl gives ‘no objection’ to release the accused in a heinous crime like rape on a minor girl and granting bail to the accused is nothing but giving license to the offender to commit similar offences which would dilute the Special Act enacted by the Parliament for protecting the children from sexual offences and also deviating the provisions of Sections 9 and 10 of Child Marriage Restraint Act apart from the provisions of Section 375 of IPC and it will send a wrong message to the Society. Therefore, in the interest of the public at large and with an intention to curtail such type of sexual offences, the Court shall ignore the consent of a minor girl giving ‘no objection’ for granting bail to the accused and the Court should deal with such a heinous offence with an iron hand.

The Court held “the petitioner-accused No.1 is not entitled for bail and the criminal petition deserves to be dismissed.” [Rahul v. State of Karnataka, 2021 SCC OnLine Kar 12728, decided on 16-06-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted bail to Asif Iqbal, who was booked under provisions of the UAPA Act for his role in the Delhi Riots during the anti-CAA protest last year.

Asif Iqbal | Mastermind behind Delhi Riots?

Asif Iqbal Tanha, a 25-year old student filed the instant appeal under Section 21(4) of the National Investigation Agency Act, 2008 seeking bail as he was in judicial custody since 19-05-2020 under provisions of Penal Code, 1860, Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Appellant was alleged to be one of the main conspirators as well as instigators behind the riots that occurred in North-East Delhi and played an active role in the conspiracy.

Section 15 of Unlawful Activities (Prevention) Act, 1967

The said section defines ‘terrorist act’ and Section 18 provides for ‘punishment for conspiracy for committing a terrorist act, including an attempt to commit or advocating, abetting, advising or inciting the commission of a terrorist act, as also of any act preparatory to the commission of a terrorist act’, the word ‘terrorism’ or ‘terror’ has nowhere been defined in the UAPA.

Right to Protest | Part of Fundamental Rights under Constitution of India

“48. …Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right.”

“…Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views.”

“31. The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India.”

  • Ramlila Maidan Incident, In re [(2012) 5 SCC 1], the Court observed that the right to assembly and peaceful agitations were basic features of a democratic system and the Government should encourage exercise of these rights

Bench noted that in the present matter, there was nothing to show that Government prohibited the protest.

‘Terrorist Act’ under Section 15 UAPA

The said phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omission that fall squarely within the definition of conventional offences.

Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.

State’s attempt to show accusation against appellant prima facie true: Fail. How?

  • No allegation leading to appellant being the leader of all the co-conspirators.
  • Appellant was stated to be a member of SIO and JCC, both are not banned organisation or terrorist organisations listed in First Schedule of UAPA.
  • The anti-CAA protest did not extend to the whole of NCT of Delhi, therefore it would be a stretch to say that the protest affected the community at large for it to qualify as an act of terror.
  • No arms, ammunition and other articles used as weapons were recovered from or at the instance of the appellant.
  • Foundations of nation stand on surer footing that to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi.
  • State’s submission based upon inferences drawn by the prosecuting agency and not upon factual allegations.
  • Protest in which the appellant participated was neither banned nor outlawed and the same was monitored by law enforcement agencies.

High Court found absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under Section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.

Bench opined that no offence under Sections 15, 17 or 18 UAPA was made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under Section 43D(5) UAPA do not apply.

With regard to outlining the consideration for bail, Court referred to the following significant decisions of the Supreme Court in:

Therefore, applying the well-worn principles of bail, Court held that it is not prima facie convinced of the veracity of the allegations so made and hence granted regular bail subject to conditions.[Asif Iqbal Tanha v. State (NCT of Delhi), 2021 SCC OnLine Del 3253, decided on 15-06-2021]

Advocates before the Court:

For the Appellant: Mr. Siddharth Aggarwal, Advocate with Ms. Sowjhanya Shankaran, Mr. Siddharth Satija, Mr. Abhinav Sekhri & Ms. Nitika Khaitan, Advocates

For the Respondent: Mr. Aman Lekhi, ASG alongwith Mr. Amit Mahajan, Mr. Rajat Nair and Mr. Amit Prasad, SPPs with Mr. Ujjwal Sinha, Mr. Aniket Seth, Mr. Ritwiz Rishabh, Ms. Riya Krishnamurthy and Mr. Dhruv Pande, Advocates.

Sh. P. S. Kushwaha, DCP with Sh. Alok Kumar, Addl. DCP, Special Cell, Insp. Lokesh Kumar Sharma and Insp. Anil Kumar.

Case BriefsHigh Courts

Karnataka High Court: S. Vishwajith Shetty, J. quashed the extension order and granted bail under Section 167 (2) Criminal Procedure Code.

The instant writ petitions are filed by the accused persons in an FIR pending before the Special N.I.A. Court, Bangalore registered for the offences punishable under Sections 15, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 i.e. UAPA and Sections 143, 147, 148, 353, 333, 332, 436, 427 and 149 of the Penal Code, 1860 i.e. IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Kadugondanahalli Police Station (hereinafter referred to as “the K.G. Halli P.S.”) Bengaluru, challenging the order dated 03.11.2020 passed by the said court on an application filed by the respondent – National Investigating Agency i.e. NIA under first proviso to Section 43- D(2)(b) of UAPA seeking extension of time for completion of investigation and the order dated 05.01.2021 passed by the said court rejecting the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, 1973 i.e. CrPC seeking statutory/default bail.

Counsel for the petitioners  Mr.  M.S. Shyam Sundar submitted that the application under Section 43-D(2)(b) of UAPA seeking extension of time for completion of investigation has been filed much prior to expiry of 90 days from the date of remand of the petitioners and therefore, the said application is premature. It was further submitted that said application is filed only to deny the right to statutory bail of the petitioners. He also submitted that the petitioners were not heard by the trial court before passing orders on application under Section 43-D (2) (b) of UAPA and the copy of the application was also not served on the petitioners or on their Advocates.

Mr. Anees Khan appearing on behalf of the petitioners submitted that none of the accused were present before the court on the date when the application under Section 43-D (2) (b) of UAPA was filed by the prosecution. He submits that in the event of this court holding that the order passed by the trial court extending the time for investigation is not in accordance with law, then the petitioners’ application under Section 167(2) of the Code merits consideration and as a matter of right, they are entitled to statutory bail.

Counsel for the respondents submitted that a reading of Section 43-D (2)(b) of UAPA would make it clear that there is no necessity of hearing the accused persons before passing any orders on the application filed by the prosecution seeking extension of time for completion of the investigation. He submitted that in the absence of the statute providing any such right to the accused persons in black and white, on the ground of principles of natural justice, they cannot claim such a right.

It was further submitted that as per Section 16 of the National Investigation Agency Act, 2008 and the said Act being a special enactment over-rides the provisions of the Code and therefore, the petitioners are not entitled to the relief of statutory bail under Section 167(2) of the Code.

The Court perused and concluded that Section 20(4) (bb) of the TADA Act, Section 36A (4) of the NDPS Act and Section 43-D(2)(b) of UAPA are three provisions of law which are pari materia.

The Court observed that the requirement of a notice to the accused before granting extension of time for completing the investigation need not be a written notice giving reasons therein, but production of accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered is alone sufficient for the purpose.

The Court further observed that the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of the investigation.

The Court thus held “the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D (2)(b) of UAPA extending the time to complete the investigation is legally unsustainable”

The Court relied on judgment Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 and observed that a right to default bail becomes complete and indefeasible as soon as application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge sheet is filed. Thereafter, this indefeasible right, firstly, cannot be defeated by filing of charge sheet; secondly, it cannot be defeated whether there is non-disposal or wrong disposal of the application for default bail, before or after filing of charge sheet and thirdly filing of a subsequent application for default bail will not defeat the indefeasible right already standing accrued to accused based on the first application.

The Court also observed that in the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge sheet. Hence, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right to default bail of the petitioners, if it has accrued in their favour.

The Court held “the application filed by the petitioners under Section 167(2) of the Code immediately after completion of the first 90 days of period is required to be allowed.[Muzammil Pasha v. National Investigating Agency, W.P.No. 1417 of 2021, decided on 20-06-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Additional Read: https://www.scconline.com/blog/post/2020/09/05/ori-hc-default-bail-granted-under-s-1672-crpc-in-case-of-non-compliance-of-notice-under-s-36-a-4-ndps-act/

Appearances before the Court

Petitioners: Mr. Shyam Sundar, and Mr. Mohammed Tahir

Respondents: Mr. M.B.Naragund and Mr. Prasanna Kumar

Case BriefsDistrict Court

LXIV Additional City Civil & Sessions Judge, Bengaluru: Sri Rajeshwara, J., granted anticipatory bail to the accused as the investigation regarding offences alleged is under process

The facts of the case are such that on 9.5.2021, accused persons hatched a conspiracy to publish defamatory articles against Prime Minister of India, Chief Minister of Karnataka State by entering into an Agreement. In the said article, false allegations against Prime Minister of India, Chief Minister of Karnataka and other ministers was made in order to promote enmity between different groups, bodies, prejudicial to harm communal peace and harmony in the society. An FIR was registered under Sections153A, 504, 506, 153B, 505(2) of Penal Code, 1860 i.e. IPC. The instant petition was filed apprehending arrest under Section 438 of CrPC seeking relief of anticipatory relief.

Counsel for the petitioners Mr R. Jagannath submitted that he is innocent of the alleged offences and has been falsely implicated in this case. It was also submitted that alleged offences are not punishable with death or imprisonment for life and is a permanent resident of the address mentioned in the cause title of the petition.

Counsel for the respondents submitted that petitioner is required for investigation. In the event of granting anticipatory bail, there is every chance of absconding, tampering and allure prosecution witnesses, repetition of crime of similar nature.

The Court further observed that press, particularly daily newspapers have immense circulation among public. ‘Prajavani’ is also one of such Kannada daily newspaper, having vast circulation. It is the responsibility of the editor and concerned officers of the newspaper to ascertain whether publication of any news would disturb peace and harmony of the communities of the society. Further, it is the duty of the editor and publisher to verify the truth of the news, before the publication of the same in their newspaper. Any dereliction, negligence on the part of the editor, publisher of the newspaper would cause severe damage to the safety of the public, harmony among communities in the society. Public peace and tranquillity is the prime issue to be maintained in the civilized society.

The Court taking judicial notice that entire nation is facing medical emergency situation due to spread of the Covid-19 infection in an alarming manner and despite all attempts, it is not possible for the government to supply required medicine, oxygen and other life saving materials within time. In such a situation, publishing articles like the present one, could provoke relatives, supporters of the deceased who died due to Covid-19 infection.

The Court stating that as the investigation is under process and the petitioner has deep roots in the society and hence fleeing from justice is not possible held “anticipatory bail petition filed by petitioner/accused U/s.438 of Cr.P.C., is allowed.” [Dr C.S. Dwarakanath v. State of Karnataka, Crl. Misc. No. 4383 of 2021, decided on 20-05-2021]

Arunima Bose, Editorial Assistant has reported the brief.

Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamsheri, J., held that satisfaction under Section 19(4)(b) of the Gangs Act is a mandatory requirement for bail.

The instant bail application was presented by the accused for crime under Sections 2/3 of Uttar Pradesh Gangs and Anti-Social Action Activities (Prevention) Act, 1986 [Gang Band Act].

Main function of the gang is committing heinous crime by spreading fear and terror in public for their material benefit against whom no one of the public is ready to report and testify. A number of lawsuits have been registered against them at various police stations. Hence it is absolutely necessary to take action against the gang to control anti-social activities.

Bail

The principle of law is that “bail is the rule and jail is the exception”. Bail can neither be accepted or rejected by any mechanical order, as it not only relates to freedom of the person against whom criminal proceedings are going on, but this punishment is also related to the interest of justice system and also ensure that those who commit crimes are not given the opportunity to obstruct justice.

Bench noted that applicant was a habitual criminal who used to commit same type of crime.

As per Sections 2 (b) and (c) of the “Gangs Act”, the applicant is also a member of a gang which is single or collectively anti-social who commits punishable offenses under Chapter 16 or Chapter 17 or Chapter 22 of the Penal Code, 1860.

Court stated that the crime committed by the applicant was punishable under Chapter 17 of the IPC.

High Court held that applicant had a detailed criminal history and there is no dilemma in reaching the conclusion that he is a habitual criminal.  Therefore, there is no reasonable basis for this Court to be resolved that the applicant is not likely to commit any offense while on bail.

“…the Gang Act is a specific act, in which special provisions related to grant of bail have been made, which are described in section 19 (4) (b). Bail cannot be granted under this Act without complying with those provisions. The Act also clarifies that this provision is in addition to the terms of the grant of bail under the Penal Code, and as previously analyzed the method of bail in which certain persons are allowed while granting or disallowing bail.” 

While concluding, Court held that before granting bail under the Act, two conditions which need to be resolved are absent in the instant case.

Hence, the present bail application was cancelled. [Sabir Khan v. State of U.P., 2021 SCC OnLine All 411, decided on 21-05-2021]