Bail

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Siddhartha Verma, J. had issued certain direction earlier in order to meet the eventualities occurring as a consequence to lockdown.

Bench has further directed that in view of the above that,

the period of twelve months for requiring the award to be made under Arbitration and Conciliation Act, 1996 other than in International Commercial Arbitration is to be extended.

Thus the bench stated that,

Accordingly, it is directed that if in any arbitral proceedings the pleadings under sub-section (4) of Section 23 of the Act have been completed and the period of twelve months has expired or is going to be expired on or after 25th March, 2020 then the same stands extended upto 25th May, 2020.

Further the Court also noted that that prior to lockdown several release orders were granted but due to non-availability of sureties they have not been released. Therefore, looking at the same, Bench stated that,

“…all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.” [In re  State of U.P. (Suo Motu), PIL No. 564 of 2020, decided on 06-04-2020]

Case BriefsCOVID 19High Courts

Kerala High Court: A Full Court comprising of S. Manikumar, C.J., and C.K. Abdul Rehim and C.T. Ravikumar, JJ. issued certain directions taking suo motu cognizance of the public announcement of imposing a total lockdown in the wake of COVID-19 outbreak resulting in immobilization of public at large.

Notably, on 24th March, the Prime Minister announced a complete lockdown throughout the country and consequently, the Ministry of Home Affairs issue guidelines on the measures to be taken by the Governments and departments for containment of COVID-19.

Directions issued by the High Court in exercise of powers under Articles 226 and 227 of the Constitution are delineated here:

(i) Interim orders granted by District Judiciary and Tribunals: All the interim orders passed by all the Courts/Tribunals upon which High Court exercises supervisory jurisdiction under Article 227, which are due to expire during the lock down period of 21 days, are extended by by one month from 25-3-2020.

Also, if any application is filed for extending/vacating an interim order and pending for orders in this Court, the interim orders will be extended for one month.  

(ii) Recovery proceedings under State laws: In all recovery matters, such as electricity, water, Abkari and other matters, Council of Ministers, Government of Kerala has already taken a decision that payment will be deferred upto 30-4-2020, and therefore, no recovery proceedings would be initiated or recovery proceedings already initiated would not be proceeded further until 30-4-2020.

(iii) Recovery proceedings by Government of India and Public Sector Undertakings: Taking note of the submission of the Government of India before the Supreme Court that a proper mechanism will be evolved, in exercise of the powers under Articles 226 and 227 of the Constitution, the High Court also deemed it fit to state that until such time it hoped that no action would be taken.

(iv) Bail/Anticipatory bail in criminal matters already provided and due to expire during the lockdown period: Orders of bail or anticipatory bail, restricted for a limited period, which may expire in the lock down period, have to be extended. Therefore, the interim orders in such matters will stand extended for one month from 25-3-2020.

(v) Contagion of COVID-19 in prisons: Directions issued by the Supreme Court in its order dated 23-3-2020 passed in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] were reiterated. Notification dated 25-3-2020 [GO(Rt) No. 970/2020/HOME] issued by the Government of Kerala taken note of, which inter alia states ?

1. A High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) Additional Chief Secretary (Home & Vigilance), and (iii) Director General of Prison(s), is constituted to determine which class of prisoners can be released on parole or on interim bail.

2. Physical presence of all the undertrial prisoners before the Courts shall be stopped forthwith and recourse to video conferencing for all purposes.

3. The transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

4. The Director General of Prisons & Correctional Services shall develop Prison specific readiness and response plans in consultation with medical experts.

5. The Director General of Prisons and Correctional Services is empowered to grant Ordinary leave to eligible prisoners in a single spell of 60 days, subject to all other conditions of leaves, in relaxation to Rule 397(b) of Kerala Prisons and Correctional Services (Management) Rules, 2014 to reduce the number of prisoners in prisons.

6. Due to the lack of public transport system as the prisoners cannot report back in prison after the expiry of their period of leave in time, such overstayal period upto April 15 shall be considered as bail (shall not be considered as sentence undergone), provided that such prisoners shall report to the police station nearby and the Station House Officer shall report the position to prison authorities concerned.

(vi) Bail applications of convicts and undertrial prisoners: The High Court, on the administrative side, had taken a decision to hear applications seeking bail/anticipatory bails/suspension of sentence, as the case may be, and posted some of the cases for hearing on 26-3-2020. Now, the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] has issued directions to the State Governments/Union Territories to constitute a High Powered Committee in respect of bail matters, which has already been done. Hence, the High Court deemed it fit that those applications need not be taken up for hearing and it is left to the High Powered Committee to decide.

(vii) Applications pending for anticipatory bail: Right of personal liberty guaranteed under Article 21 of the Constitution should not, at any rate, be infringed by arresting an accused, except in matters where arrest is inevitable. However, the State is at liberty to take appropriate decision in respect of heinous/serious offences and in rest of the cases, State may act accordingly.  

(viii) Events of arrest: In the event of any arrest, the Constitutional obligation under Article 20(2) shall be followed in letter and spirit. Over-crowding in prisons is one of the issues taken up by the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020]. Therefore, Magistrates/Judges before whom the accused is produced, depending upon the nature of offence, shall consider as to whether judicial/police custody is required or not. Needless to state that, bail is the rule and jail is an exception. It was made clear that the above said directions stand excluded to subjects relating public order/law and order and any action taken by the State Government to combat the outbreak of COVID-19 and actions taken thereof.

(ix) No coercive action by Local Self Government Institutions: It is sincerely expected that due to the outbreak of COVID-19, State Government, LSG Institutions, Government of India, and Public Sector Undertakings owned and controlled by the State/Central Governments that no coercive action be taken since there is no opportunity to the persons to approach the Courts at present. [Suo motu Writ Petition – COVID-19 – taken up by the High Court,  2020 SCC OnLine Ker 1229, decided on 25-3-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. quashed the FIR to meet ends of justice and prevent the abuse of the process of the Court.

The brief facts of the case are that on 27-01-2019, respondent 2 boarded a private bus at village Dharla, District Mandi, which was coming from Karsog to Shimla. On alighting the bus at 11:30 a.m at Talland, Shimla another bus also stopped at the same stop, which was coming from Karsog. When he was standing near traffic police post all of sudden, driver of latter mentioned bus turned the bus and drove over his left foot, consequent to which he received simple as well as grievous injuries. Consequently, FIR was lodged under Sections 279, 337 and 338 of the Penal Code, 1860 dated 27-01-2019, against the petitioner. Later, respondent 2 entered into a compromise stating not intending to pursue the case further. Hence, the present petition was filed under Section 482 CrPC to quash the FIR.

The counsel for the petitioner, Inder Sharma submitted that as parties have compromised the matter, the proceedings will serve no purpose and the FIR can be quashed and set aside.

Shvi Pal Manhans with P.K. Bhatti for respondents argued that the offence is not compoundable, so the petition may be dismissed. The counsel for respondent 2, Nitish Negi agreed on the same.

The Court relied on various judgments, prominent being Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 and observed Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers and only recognizes and preserves powers which inhere in the High Court. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

In view of the above, FIR was quashed and the petition was disposed of. [Shivesh Dutt v. State of H.P., 2020 SCC OnLine HP 423, decided on 13-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection with the offences punishable under Sections 363, 366-A and 376(2)(N) of the Penal Code, 1860 and Section 5(L)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

An FIR by the father of the victim mentioned that the applicant/accused had kidnapped her daughter. The Counsel for the applicant, Vikas Anand submitted that the applicant was an innocent person; he had no criminal history and during the trial, the prosecution’s case had not been supported by the victim herself and father of the victim.

The Court while allowing the bail relied on the decision of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 which stated that the personal liberty is very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case. [Ajay Sarkar v. State of Uttarakhand, First Bail Application No. 2276 of 2019, decided on 04-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection with the offences punishable under Sections 302 and 120B of the Penal Code, 1860.

FIR was lodged by the father of the deceased with the allegations that his daughter was married with co-accused Shadab. Her husband demanded dowry and used to beat her.

On 16-11-2018, when his daughter was at his house her husband had come, cooked food and brought sweet meat from market and afterward added the poison in the meal of his wife the next day she was found dead. The counsel for the applicant, M.C. Bhatt and Sachin, submitted that the applicant was an innocent person and she was the sister of the accused; was just above 18 years of age she had been in custody since 07-01-2019 and six witnesses had been examined and her name was not mentioned in prosecution’s witness list and co-accused in the FIR had been granted bail by this High Court.

The Court while allowing the bail relied on the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 where it was held that the personal liberty is very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case. [Amreen v. State of Uttarakhand, 2020 SCC OnLine Utt 129, decided on 04-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection for the offences punishable under Section 376(2)(i)(n) of the Penal Code and Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The FIR was lodged by the father of the victim on 26-09-2018 with the allegations that his daughter told him about the mental and physical harassment given by the applicant/accused since 2014. The victim had mentioned about applicant had taken few photographs for which he was blackmailing and harassing her along with abusing her on the phone and forcing him to make physical relations with him. The counsel for the applicant, Vinod Sharma submitted that applicant was an innocent person; no date or month of the physical relations had been mentioned in the FIR; according to the medical report dated 27-09-2018, no sexual intercourse had been committed with the victim in last few days; no said photographs were produced by the prosecution; no rape or sexual intercourse had ever been committed by the applicant on the prosecutrix; in medical report dated 27.-09-2018, no sign of rape had been found and there was no swelling, no injury, no bleeding; the applicant has no criminal history; he was in custody since 27-09-2018; prosecution had not filed so far any reliable certificate of date of birth of the victim.

The Court while allowing the bail relied on the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 where the Supreme Court had observed that the personal liberty was a very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case and in the present case the attendance of the accused could be secured without having him to be put in custody. [Amit v. State of Uttarakhand, 2020 SCC OnLine Utt 121, decided on 03-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed in connection for the offences punishable under Sections 3, 5, 11 of the Uttarakhand Protection of Cow Progeny Act, 2007 and Section 11 of the Prevention of Cruelty to Animals Act, 1960.

The FIR stated that police party had raided the house of the present applicant on 15-12-2019 and recovered 245 Kg. beef with equipments meant for slaughtering and the applicant was arrested. The counsel for the applicant Mohd Safdar submitted that the applicant was an innocent person; he had been falsely implicated; nothing had been recovered from the possession of the applicant; there was no independent witness of the alleged recovery; the applicant had no criminal history; the applicant was in custody since 15-12-2019; the co-accused had been granted bail by this High Court. 

The Court while allowing the bail application stated that the object of keeping an accused person in detention during the trial was not punishment and as the applicant was a resident of Haridwar his presence can be secured anytime. [Mursalin v. State of Uttarakhand, First Bail Application No. 179 of 2020, decided on 03-03-2020]

Hot Off The PressNews

Supreme Court: The bench of Ashok Bhushan and Naveen Sinha, JJ has dismissed a petition filed against the Allahabad High Court order granting bail to former BJP MP Swami Chinmayanand in a case pertaining to the alleged rape of a law student in Shahjahanpur, Uttar Pradesh.

The bench also issued a notice to Chinmayanand on another plea seeking transfer of the trial in the rape case against him from Uttar Pradesh to Delhi. It, however, refused to stay the trial of the case. The Bench, while refusing to interfere with the Allahabad High Court order, said the High Court had imposed sufficient conditions to ensure that the accused would not tamper with evidence or threaten witnesses.

Senior advocate Colin Gonsalves, appearing for the victim, claimed that secret videos of the law student (/topic/law-student) bathing were filmed, which were used by Chinmayanand to threaten her and to rape her. He told the court that the High Court, while granting bail, had noted that there was an apprehension of tampering with evidence and threatening but Chinmayanand was still granted bail.

The court, however, said that the apprehensions are taken note of by the High Court which is why certain conditions were imposed, else it would have been an unconditional bail.

“We understand your anxiety but the High Court is monitoring the investigation pursuant to the Supreme Court’s orders. Protection is provided in a substantial manner. Everything has been considered and a charge sheet is filed. When charges have to be framed, the law will take its course,”

In February, Allahabad High Court had transferred from Shahjahanpur to Lucknow the trial in the sexual abuse case against Chinmyanand. The Allahabad High Court had on February 3 granted bail to Chinmayanand, a former Union minister of state, in the alleged rape case filed by a woman who studied law in a college run by Chinmayanand in UP’s Shahjahanpur.

In December 2019, the 23-year-old law student, who has accused Chinmayanand of rape, was released from a district jail in connection with an extortion case after she was granted bail by Allahabad High Court.

The woman was arrested on September 25 in connection with an extortion case filed on the basis of Chinmayanand’s complaint alleging that she, along with three of her friends, had demanded Rs 5 crore from him. Chinmayanand had alleged that they threatened to make public some purported videos of him getting a massage from the law student. On the other hand, the woman had alleged that she was repeatedly raped and blackmailed by Chinmayanand for over a year.

(Source: ANI)

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma J. dismissed both writ petitions filed by the petitioners stating that the freedom of an individual cannot be curtailed for indefinite period on the basis of suspicion, especially when his/her guilt is yet to be proved, in accordance with law.

The instant case is represented by counsel N.K. Thakur, with Divya Raj Singh for petitioners and Sudhir Bhatnagar, Arvind Sharma and Anil Jaswal for respondents.

The petitioner was taken into custody on 10.01.2020 charged under Section 3 (II) (I) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, and subsequently was released on bail subject to his furnishing personal bonds in the sum of Rs  20,000 to the satisfaction of the concerned Court. The status report which is prepared on the basis of the investigation carried out by the Investigating Agency was perused and returned stating that pursuant to order dated 10.1.2020, bail petitioner has joined the investigation and he is fully cooperating. It was further stated that nothing remains to be recovered from the bail petitioner.

The Court finds that investigation in the case is complete and nothing is required to be recovered from the bail petitioner, hence no reason left for custodial interrogation of the bail petitioner, especially when guilt, if any, is yet to be determined, in accordance with law on the basis of totality of evidence to be collected on record by the Investigating Agency. 

The Court relied on the Supreme Court Judgment, Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 decided while deciding the present case.

Bench held that object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Bail is not to be withheld as a punishment. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

In view of the above, the bail petitions are disposed of. [Keshva Nand v. State of H.P., 2020 SCC OnLine HP 258, decided on 25-02-2020]

Case BriefsDistrict Court

Karkardooma Court: Naveen Gupta, Additional Session Judge, while addressing a bail application filed, denied the same and held that,

A peaceful protest is the essential right in a vibrant democracy as of ours, but this right is subject to certain exceptions provided under the Constitution of India.

In the present case, allegations in view of protests against the Citizenship Amendment Act (CAA) Section 144 CrPC had been imposed. During a flag march with large police on 26-02-2020, a noise of firing was heard. Pursuant to the firing, public persons were asked to disperse, but they refused to do so.

Further, SHO announced the crowd as unlawful assembly and again asked the people to disperse but the persons named in FIR including the applicant did not allow the crowd to remove themselves. Applicant instigated the crowd saying that they would not remove themselves even if, they die or whatever police officials do, they want freedom. In fact, the crowd was even asked to pelt stones.

In view of the above, Police used the force to control the situation, but the crowd remained there and thereafter, police used tear gas shells and fired in the air. Persons from the crowd started manhandling with police staff. Thus FIR was registered.

Applicants counsel submitted that there was a peaceful protest against CAA for las 49 days and no complaint of criminal activity had been moved against the protesters. It is one of the fundamental rights of citizens to protest and register their dissent.

Further, they contended that those police officials who were a part of the flag march did not record the entire alleged incident by videography. Moreover, the applicant was not present at the spot, rather she was picked up from her house.

Additional Public Prosecutor for the State submitted that, the said actions of persons named in FIR, as well as other persons of the crowd, clearly lead to infer that the assembly had turned into an unlawful assembly with a common object to overawe by criminal force the police officials in the exercise of the lawful power as well as to commit an offence.

Adding to the above contentions, APP submitted that, considering the background of applicant, there is a high chance of tampering with the evidence and threatening of witnesses by her, in case she is admitted to bail at the preliminary stage of the investigation.

Court’s Decision

Bench stated that,

Under Section 141 of Penal Code, 1860, ‘an assembly which not unlawful when it assembled, may subsequently become an unlawful assembly’. Referring to the Supreme Court decision in Ramachandran v. State of Kerala, (2011) 9 SCC 257, “Common Object” may also be developed at the time of the incident.

Court stated that in view of the facts and circumstances along with the contents of the FIR, it shows that members of the assembly had been armed with a pistol. They had pelted stones. Instigation was also caused by the persons named in the FIR.

Applicant and members of assembly targeted the police officials with gunshot and pelting of stones etc.

Bench adding to the above also stated that it is guided with the principles laid down in the Supreme Court’s decision in Prashant Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, wherein it was held that,

“…factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”

Hence, while concluding its decision, the Court held that the charges in the present case are of serious nature.

When protectors of law are targeted in the manner as reflected in presnet FIR and that too, in the gaze of general public, such actions lower public confidence in the ability of police officers to do their duty.

Thus, Court view of above is not inclined to grant bail to the applicant. [State v. Ishrat Jahan, Bail Application No. 370, decided on 28-02-2020]

Hot Off The PressNews

As reported by ANI,

Chinmayanand who is an Ex-BJP Minister was accused of raping a law student has been granted bail.

The woman who has been said to be raped by the minister was arrested in connection with an extortion case filed on the basis of Chinmayanand’s complaint, wherein he stated that the woman along with few other friends of hers had demanded Rs 5 crore from him while threatening him with the release of some inappropriate videos.

Victim had alleged that she was repeatedly raped and blackmailed by Chinmayanand for over a year.

[Source: ANI]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

While all 5 judges gave a unanimous verdict, MR Shah and Ravindra Bhat, JJ gave elaborate separate opinions.

Justice Shah was of the opinion that the normal rule should be not to limit the operation of the order in relation to a period of time. He, however, added,

“the conditions can be imposed by the concerned court while granting pre­arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed.”

Justice Bhat in his opinion wrote:

“it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.”

Summary of the verdict

Whether the protection granted to a person under Section 438 Cr. PC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?

The protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?

The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Points to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

  • When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts such as relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story, and not vague or general allegations, relatable to one or other specific offence.
  • Depending on the seriousness of the threat of arrest the Court should issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
  • Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The   need   to   impose   other   restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency.
  • Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it.
  • Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
  • An order of anticipatory bail should not be “blanket” in the sense that it cannot operate in respect of a future incident that involves commission of an offence.
  • An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­arrest bail.
  • If and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.
  • It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term.
  • The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2) Cr.P.C.

Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine SC 98, decided on 29.01.2020]

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of CJI SA Bobde and BR Gavai and Surya Kant, JJ has granted bail to 14 convicts in the Sardarpura village massacre case where 33 people were burnt alive during the 2002 communal riots in Gujarat. The 14 convicts who had been sentenced to life imprisonment have been asked by the Court to do social and spiritual services among others during the period of the bail. The court said that one batch of convicts will go to Indore while another will go to Jabalpur. The Court said,

“punitive harshness should be minimized and restorative devises to redeem the man even through community service, meditative drill, etc. should be innovated.”

The Court directed that the convicts be released on bail on furnishing bail bonds in the sum of Rs.25,000/- (Rupees twenty five thousand only) with two sureties of the like amount to the satisfaction of the trial court. The Court also issued the following directions:

(1) convicts shall not enter the State of Gujarat until the final decision of their pending appeal(s) before this Court.

(2) convicts shall reside in the District of Jabalpur, Madhya Pradesh or in the District of Indore, Madhya Pradesh, as the case may be, and report to the Police Station at Civil Lines, Jabalpur, on the first day of each calendar month.

(3) convicts shall not leave the District of Jabalpur or the District of Indore, Madhya Pradesh, as the case may be without obtaining permission from the learned District & Sessions Judge, Jabalpur.

(4) convicts shall engage in any spiritual programme or do some social/community services for a minimum period of six hours in a week during the period of bail.

The court further directed that Member Secretary of the Madhya Pradesh State Legal Services Authority to produce a certificate before this Court stating therein that the convicts are regularly engaged in any of the aforesaid programme/services. It further said,

“The Madhya Pradesh State Legal Services Authority shall also assist the appellant for obtaining employment in the district of Jabalpur. The Madhya Pradesh State Legal Services Authority shall submit a report of the compliance of the above conditions and regarding general conduct of the appellant once in every three months initially.”

Among the convicts who were granted bail are Prahaladbhai Jagabhai Patel, Vijaybhai Rajivbhai Patel, and Dilipbhai Vinubhai Patel. Over a thousand people were killed during the three-day riots that ensued at several places in Gujarat after around 58 people lost their lives when the S-6 coach of Sabarmati Express was torched at the Godhra Railway Station on February 27, 2002.

[Prahaladbhai Jagabhai Patel v. State of Gujarat, 2020 SCC OnLine SC 109, decided on 28.01.2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., allowed a bail petition of an accused who was under arrest due to an FIR registered under Sections 452 and 376 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’).

The FIR stated that the mother of the victim mentioned that she stayed in her matrimonial home with two of her children, a son aged 13 years and a daughter aged 14 years and her daughter was deaf from childhood and couldn’t even walk on her own. On 8-10-2019 at 7:30 p.m., she was going to attend the wedding in the village when she noticed the accused petitioner standing near the door of her house, on which she asked him the purpose to which he left the place. Later, she locked the house after placing her daughter inside and left to attend the wedding. When she returned at around 10.30 p.m. she found the locks to be broken and the blanket on her daughter removed along with bloodstains on her salwar. She suspected the accused petitioner and requested a medical examination after which he was arrested on filing the FIR. The doctor who had conducted the medical examination had said that there was no sign of any physical violence over the body and also mentioned that she was not menstruating and there was no external injury however the possibility of sexual intercourse could not be ruled out. The report from Forensic Science Laboratory did not deduct semen on clothes of the victim, vaginal swab and quilt cover.

On the other hand, the petitioner had specifically mentioned that the mother of the victim had been purchasing daily needs and ration items from him, on credit but despite requests, she did not pay and that he was not involved with the alleged offence. The petitioner had filed a petition under Section 439 Criminal Procedure Code, before Special Judge but it was dismissed thus the instant petition arose.

High Court while allowing the petition explained that the doctor did not find even a single trace of sexual assault nor the Laboratory deducted any semen from the vaginal swab and the mother’s allegation is also based on mere suspicion thus the petitioner is entitled to receive bail. [Bhup Singh v. State of H.P., 2020 SCC OnLine HP 147, decided on 24-01-2020]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsSupreme Court

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

Genesis of the Case [Brief Facts]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senior Counsels representing the appellant submitted that:

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

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

Conclusion

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

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

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

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

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

Gist of the Order to be noted here:

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

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

Hot Off The PressNews

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

Pointers to be noted:

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

Background:

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

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

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

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

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

[Detailed Judgment to be Updated] Stay tuned in!