Bail

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr. Dhananjaya Y. Chandrachud* and M. R. Shah, JJ., pronounced an important judgment which came out to be a significant development regarding law relating to bail. The Bench not only criticized the practice of lower Courts of attaching caveat for not treating the decision as precedent, but also emphasized on need for reasoned disposal of bail matters. The Bench expressed,

“Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused…it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Factual Matrix of the Case

The High Court of Gujarat had granted bail to six persons who had been implicated in five homicidal deaths.  The genesis of the incident was that the accused had all come to the scene of offence with pistols, dhariyas and knives and that initially Vishan (A-6) and two others had fired from their rifles as a result of which five persons fell to the ground. Some of these accused were alleged to have assaulted with dhariyas and lathis over the head and body of deceased. The incident resulted in the death of five persons. Among the twenty-two accused were Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17).

On 22-10-2020, the High Court had granted bail to A-13 on the primary basis that he was armed with wooden stick and no substantial role was assigned to him. Also, there had been substantial changes in the genesis of the incident including the nature of the weapons in statement of the informant. And the allegation in the FIR was that A-6 had fired several rounds from a rifle together with other persons, the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon. The reliance was placed by the Court on Sanjay Chandra v. CBI, 2012 (1) SCC 40, for granting bail. Later on, other accused were granted bail based on parity.

Observation and Analysis by the Court

The singular absence in the judgment of the High Court was consideration regarding nature and gravity of the crime. The incident which took place on 09-05-2020 resulted in five homicidal deaths. The orders of the High Court were conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The Bench stated, “The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted.”

In Ram Govind Upadhyay v. Sudharshan Singh, the nature of the crime was recorded as “one of the basic considerations” which has a bearing on the grant or denial of bail. The Court, in that case had held that, “grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”

We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction.

“The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.”

In granting bail to the six accused, the High Court has committed a serious mistake by failing to recognize material aspects of the case, rendering the orders of the High Court vulnerable to assail on the ground of perversity. The first circumstance which should have weighed with the High Court but which has been glossed over is the seriousness and gravity of the offences. Post Mortem reports had indicated extensive nature of the bodily injuries. The Bench expressed, “whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross FIR indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused.”

On Caveat regarding not to the Order as Precedent

The Bench disapproved the practice of attaching caveat not be treat the order as a precedent to claim bail on the basis of parity. It stated that whether parity could be claimed by on the basis of the order granting bail to A-13 ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. The observation that the grant of bail to A-13 shall not be considered as a precedent did not constitute judicially appropriate reasoning. The Bench opined, “Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused. In the event that parity is claimed in such a case thereafter, it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Does consent of parties obviate the duty of Courts to Give Reasoned Orders?

The High Court, while granting bail to Vishan (A-6) added that that the Counsel for the parties “do not press for a further reasoned order”. The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other.

Lastly, the Bench added that the recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. The impugned orders were held to be tainted with perversity and hence, were set aside. The appeal was allowed and the all the accused were to surrender forthwith.

[Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana, Cr.A. No. 422 of 2021, decided on 20-04-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Dr Dhananjaya Y. Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Appearance before the Court by:

For the Appellant: Sr. Adv. Vinay Navare, Adv. Jaikriti S Jadeja,

For the Accused: Adv. Purvish Malkan, Adv. Nikhil Goel, Adv. J S Atri and Adv. Haresh Raichura

For the State: Adv. Aniruddha P Mayee

Case Briefs

Himachal Pradesh High Court: Anoop Chitkara, J., granted bail and held that the law under Section 439 CrPC is very clear and in the eye of the law every accused is the same irrespective of their national.

The facts of the case are such that an under-trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of Criminal Procedure Code i.e. CrPC, seeking bail, on the grounds that the quantity of contraband allegedly seized is the intermediate quantity and does not restrict bail, because the quantity greater than 250 of Heroin, falls in the category of the commercial quantity; hence the restrictions for bail imposed in Section 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.

Counsel for the petitioners Mr Pushpinder Singh Jaiswal submitted that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. It was further submitted that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

Counsel for the State Mr Nand Lal Thakur, Mr Ram Lal Thakur, and Mr Rajat Chauhan submitted that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

The issue before the Court is with respect to whether the quantity attracts the rigors of Section 37 of the NDPS Act and should the bail be granted to a Nigerian national.

The Court relied on judgment Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471 and observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

The Court further relied on judgment Shokhista v. State, 2005 LawSuit (Del) 1316 wherein it was held

“The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I. T. P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so.”

The Court thus observed that the quantity of substance involved in this case does not restrict bail and in the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

The Court held that “the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”[Collins v. State of HP, Cr. MP(M) No.254 of 2021, decided on 27-04-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Telangana High Court: G Sri Devi, J. addressed a petition filed under Sections 437 and 439 of Criminal Procedure Code, 1973 to seek bail.

Petitioner who sought bail in the instant case had a case registered against him for the offences punishable under Sections 8(c) read with Section 21 (C) of the NDPS Act, 1985.

Inspector of Police had seized MD Drug weighing about 200 grams in a plastic cover, two mobile phones and other material from the possession of the accused.

Counsel for the petitioner submitted that petitioner had been falsely implicated in the present crime.

It was stated that in the Supreme Court decision of Sheru v. Narcotics Control Bureau, Crl. Appeal Nos. 585, 586 of 2020, dated 11-09-2020 bail was granted to a person in a case filed under the Narcotics Drugs and Psychotropic Substances Act in view of the unusual times of the COVID-19 Pandemic.

In view of the above-cited case, having regard to the fact that petitioner was in jail since 19-11-2020 and looking into the nature of allegation levelled against the petitioner and as the contraband seized from the possession of petitioner was only a little bit higher than the commercial quantity, also in view of the peculiar conditions of COVID-19 Pandemic prevailing in the country, High Court granted bail to the petitioner.

Hence, criminal petition was allowed, and petitioner was directed to be released on bail subject to the following conditions:

  • Petitioner shall be released on bail on his executing a personal bond to the tune of Rs 25,000 with two sureties for a like sum each to the satisfaction of XI Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
  • On such release, petitioner shall appear before the investigating officer till completion of investigation and submission of final report.
  • Petitioner shall appear before the Court concerned personally on each date hearing till conclusion trial
  • Petitioner shall not indulge in any similar type of activities, in future other his liberty shall stand cancelled
  • Shall not tamper with prosecution witnesses
  • Shall co-operate with the investigating agency.
  • Shall not misuse the liberty granted to him.

[Tejawath Suresh v. State of Telangana, Criminal Petition No. 2382 of 2021, decided on 23-04-2021]

Sri P Pratap, Advocate for the Petitioner

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of led by former CJI SA Bobde, along with AS Bopanna and V. Ramasubramanian, JJ has set aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986

“There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.”

Rajnarain Singh was murdered by the accused, a contract killer and a sharpshooter, in conspiracy with others. In fact, previously, the accused has been prosecuted in fifteen cases for serious offences including murder, attempt to murder and criminal conspiracy.

It was argued before the Supreme Court that the Allahabad High Court granted bail on very liberal terms, such as the execution of a personal bond to the satisfaction of the jail Authorities and the furnishing of sureties within a month of his release. “The High court has simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities.”

The deceased victim’s wife also contended that the conduct of the accused during the trial has been one of non-cooperation, by not cross examining the witnesses first, then praying for their recall and then threatening witnesses through his henchmen. In fact, the conduct of the accused impelled the Sessions court to direct the police to provide security in the court during the trial and provide security to the witnesses.

Making a strong case, the appellant also argued that the grant of bail in a routine manner to gangsters, has had an adverse effect in the past, upon the law and order situation. The Court was reminded of the case where Vikas Dubey, who was prosecuted in connection with 64 criminal cases which included cases of murders, offences of dacoity, criminal intimidation, extortion and offences under the UP-Gangster Act, etc., was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed and many grievously injured.

Taking note of all the factors concerned, the Court said that the high court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection.

“It is needless to point out that in cases of this nature, it is important that courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims.”

[Sudha Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 342, decided on 23.04.2021]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., denied bail application of a person named Shahrukh that headed the large crowd, holding a pistol in hand and releasing open fire shots during the riots that occurred in the area between Jaffrabad Metro Station and Maujpur Chowk.

Petitioner sought bail under Sections 147/148/149/186/216/307/353 of Penal Code, 1860 and Sections 25/27 Arms Act.

It has been stated that on 26th February, 2020 a statement of Head Constable was recorded who was deputed to maintain law and order with other members of his team in the area between Jaffrabad Metro Station and Maujpur Chowk, where a clash between two groups took place

As per the statement, the Head Constable had stated that one person, leading the agitated crowd and brandishing pistol in hand, came running towards him and fired 3-4 rounds of shots towards the people. Head Constable Deepak Dahiya further stated that he dodged his head and saved his life and tried to calm down the said person, but he pushed him with his left hand and he again fired at the public. On his complaint, the FIR in question was registered.

The above-stated incident was captured by a Journalist on his mobile phone and the person brandishing and firing from pistol was identified as Shahrukh i.e. petitioner. After sustained interrogation, the petitioner voluntarily disclosed his involvement in the alleged incident and he was arrested in the present case and was behind bars since then.

Analysis, Law and Decision

Bench before proceeding to the facts and circumstances of the case, Court took a serious view of paras 14 to 16 of this petition which were not worth disclosing.

Highly derogatory and serious allegations have been made against the Government of India, Ministers and Judge of this Court, which is deprecated and the Bar is suggested to not make such claims until and unless supported with factual and material evidence in a particular case.

High Court added that the role attributed to the petitioner was not confined to participation in the mob of rioters but of heading the large crowd, holding a pistol in hand and releasing open fire shots.

Court’s conscience was shaken on watching the video clipping and pictures played wherein it was seen that the law and order was taken in his hands.

Whether or not petitioner had intention to kill the complainant or any person present in the public with his open air pistol shots, but it is hard to believe that he had no knowledge that his act may harm anyone present at the spot.

Adding to its conclusion, Bench stated that the worthiness of the complainant’s statement recorded under Section 161 CrPC and petitioner’s claim that he had not aimed pistol to shot at the complainant, shall be tested at trial.

Trial court rightly held that the petitioner was alleged to have participated in riots and his picture spoke a volume about his involvement.

Hence, keeping in mind the gravity of the situation and offence, the petitioner was not granted bail.

Therefore the petition was dismissed. [Shahrukh Pathan v. State NCT of Delhi, 2021 SCC OnLine Del 1665, decided on 15-04-2021]

Advocates before the Court:

For the Petitioner:

Mr Khalid Akhtar, Mr Mohammad Shadan, Mr Bilal Khan, Mr Maaz Akhtar & Mr Sheikh Bakhtyar, Advocates

For the Respondent:

Mr Amit Mahajan & Mr Rajat Nair, Special Public Prosecutors with Mr Shantanu Sharma & Mr Dhruv Pande, Advocates

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J., granted regular bail on grounds that she is a mother of an infant child dependent upon her breasts feeding.

The facts of the case are such that the victim left home for school and did not return. On her father contacting school authorities got to know that school was not open that day. He went to register a complaint at the police station under Section 363 Penal Code, 1860 i.e. IPC and investigation started. On investigation, it was found that her phone was being used in various locations and two numbers were contacted most frequently. The last location of the victim was Panipat after which the phone was switched off. The petitioner is the sister of the main accused Nazim who is charged under Sections 366A, 370(4), 506 and 120B IPC. The victim was recovered from the petitioner and after victim’s statement was recorded, the petitioner was brought to police station for interrogation and was arrested later. The Petitioner has approached this Court under Section 439 Criminal Procedure Code (i.e. Cr.P.C.), seeking regular bail.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that petitioner is a woman having her family and a permanent home in Village Dhakia, District Amroha, U.P., and there is no possibility of her fleeing from justice.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that that co-accused Ibad, who is husband of petitioner is not submitting himself to the Investigating Agency for interrogation and petitioner was actively playing role for hiding a minor girl (victim) and had been resisting handing over the girl to the police.

The Court observed that Section 437 CrPC deals with situation when accused is produced before the Magistrate and Section 439 CrPC devolves special power on the High Court and/or Court of Sessions regarding the bail and both Sections deal with different situations in different Courts, but it is also settled position that provisions contained in Sections 437 and 438 CrPC can also be taken into consideration at the time of considering bail under Section 439 CrPC. In fact, Section 437 CrPC refrains the Court, other than the High Court or Court of Sessions, from releasing a person, accused or suspect of commission of any non-bailable offence, who is arrested or detained for without warrant, or appears, or is produced before such Court and there appears reasonable ground for believing that he is guilty of an offence punishable with death, or imprisonment for life. However, an exception has been carved out enabling such Court to release such a person on bail, in case, such person is under the age of sixteen years, or is a woman, or is sick, or infirm, with the further provision that no such person shall be released without giving an opportunity of hearing to the Public Prosecutor.

The Court thus held “Considering entire facts and circumstances brought before me with respect to role of petitioner coupled with the fact that she is a mother of an infant child dependent upon her breasts feeding, I am of the opinion that at this stage, petitioner is entitled to be enlarged on bail”.

In view of the above, petition was dismissed.[Nasrin v. State of Himachal Pradesh, 2021 SCC OnLine HP 657, decided on 09-04-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Punjab and Haryana High Court: Avneesh Jhingan, J. dismissed the petition on the grounds discussed below.

The facts of the case are such that the prosecutrix alleged that her father-in-law after administering her with tablets which made her unconscious did a wrong act, clicked her photographs and video recorded her. Thereafter, he blackmailed her. A statement of the prosecutrix before the Judicial Magistrate under Section 164 Criminal Procedure Code i.e. CrPC was recorded. Two bail applications filed before the trial Court by the petitioner were dismissed. FIR was registered under Sections 328, 376 and 506 of the Penal Code, 1860 i.e. IPC and he was thereby arrested. Two bail applications were filed before the Trial Court by the petition which was dismissed. The instant petition was filed under Section 439 CrPC for grant of regular bail.

Counsel for the petitioner submitted that the prosecutrix has not supported the allegations while deposing before the Court.

Counsel for the respondents submitted that opposes the bail stating that the allegations are serious. The prosecutrix has supported the allegations in the statement recorded under Section 164 CrPC.

The Court observed that the issue with regard to the contradiction of statement under Section 164 CrPC and deposition before the Court would be a subject matter of trial. The Court further observed that the nature of allegations made by the prosecutrix, especially the fact that the objectionable video and photographs were clicked were very serious. A U-turn is apparent.

The Court thus held that the prosecutrix not supporting the allegations in a deposition before the Court is not enough to grant bail.

In view of the above, petition was dismissed.[Subhash Chander v. State of Haryana, CRM-M No.12704 of 2021, decided on 25-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi, J. dismissed the bail application as there was a clear possibility of further danger to the complainant by the accused.

The facts of the case are such that the petitioner lured the complainant into having physical relationship with her promising her to marry wherein she became pregnant twice, which was aborted and consent to marriage was denied by the family members of the petitioner. Hence, the complainant’s family fixed her marriage elsewhere consequent to which the petitioner posted personal photographs of the complainant along with him using fake Facebook IDs created in her name and mentioned that the complainant had a relationship with him but was marrying someone else. As a result of this, the complainant’s marriage was broken and she was defamed in society. The complainant lodged an FIR under Sections 376(1), 313, 294 and 506 of the Penal Code, 1860 i.e. IPC and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008 and was thereby arrested. The instant petition has been filed under Section 439 Criminal Procedure Code seeking bail.

Counsel for the petitioners Mr N Mishra submitted that the present case has been foisted in a fabricated manner to harass the present petitioner. Hence, the petitioner should be granted bail.

The Court relied on judgment Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 and observed that if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.

The Court however observed that the law is well settled that consent obtained on a false promise to marry is not a valid consent. Since the framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 of IPC, consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of IPC. Hence, the automatic extension of provisions of Section 90 of IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail.

The Court thus held “The possibility of coercion of victim’s family, repetition of similar type of offence and flee from justice cannot be ruled out in the present case. Therefore, the petitioner does not deserve to be granted bail.”

In view of the above, application was dismissed.[Rinku Pradhan v, State of Odisha, BLAPL No.6629 of 2020, decided on 05-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

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

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

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

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

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

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

Issue:

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

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

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

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

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

  • Engagement with secessionist forces

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

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

Opinion of the Bench

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

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

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

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

  • Use of ‘Toolkit’

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

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

Opinion of the Bench

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

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

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

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

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

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

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

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

  • Conduct of the applicant/accused

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

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

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

Opinion of the Bench

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

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

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

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

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

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

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

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

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

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

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

Advocates who appeared for the matter:

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

Image Credits of Disha A. Ravi: ANI

Case BriefsHigh Courts

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

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

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

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

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

 Issue regarding orders declining bail to juveniles

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

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

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

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

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

Background

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

Analysis

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

Observations

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

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

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

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

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

Grounds for revision

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

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

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

Arunima Bose, Editorial Assistant has put this story together.

Case BriefsSupreme Court

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

Dismissing the Special Leave Petition, the Court said,

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

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

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

Op EdsOP. ED.

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

Section 436-A CrPC

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

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

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

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

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

Gamut of the Provision

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

The First Proviso of Section 436-A CrPC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

† Advocate, Bombay High Court. Views are personal.

[1] (2015) 13 SCC 605.

[2] (1980) 1 SCC 98

[3] (1994) 6 SCC 731.

[4]  (1994) 3 SCC 569.

[5] (1988) SCC 1531.

[6] 2015 SCC OnLine Bom 8695

[7] 2018 SCC OnLine Bom 17551

[8] (2001) 5 SCC 453

[9] 2020 SCC OnLine SC 529

Case BriefsSupreme Court

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

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

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

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

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

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

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

Case BriefsSupreme Court

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

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

Why was Najeeb arrested?

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

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

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

Analysis

When can bail be cancelled?

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

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

Why did the High Court grant bail?

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

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

Consideration by the Supreme Court

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

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

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

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

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

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

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

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

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

*Justice Surya Kant has penned this judgment 

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

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

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

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

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

Aastha Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

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

Issue

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

 Observations

On Right to Bail

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

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

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

Highlighting provisions for bail in High Court Rules

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

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

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

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

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

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

Citing relevant provisions, Court observed,

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

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

Directions issued

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

 Decision

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

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

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

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

[Bombay High Court]

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

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

[National Consumer Disputes Redressal Commission]

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

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

[Bombay High Court]

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

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

[Delhi High Court]

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

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

[Allahabad High Court]

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

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

[Supreme Court]

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

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

[Kerala High Court]

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

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

[Allahabad High Court]

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

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

[Kerala High Court]

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

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

[Supreme Court]

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

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

[Allahabad High Court]

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

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

[Chhattisgarh High Court]

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

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

[Bombay High Court]

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

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

[Calcutta High Court]

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

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

[Delhi High Court]

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

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

[Himachal Pradesh High Court]

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

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

[Chhattisgarh High Court]

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

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

[Allahabad High Court]

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

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

[Karnataka High Court]

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

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

[National Consumer Disputes Redressal Commission]

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

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

Case BriefsSupreme Court

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

Background

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

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

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

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

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

For State of Kerala: Advocate G. Prakash

Also read:

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