Bail

Case BriefsSupreme Court

“Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.”

Supreme Court: After Feroz Mohammad Shaikh, Arnab Goswami and Neetish Sarda were granted interim bail on November 11, 2020 in relation to the alleged suicide of Anvay Naik and his mother Kumud Naik, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has in it’s detailed judgment held that the Bombay High Court, in it’s 56-pages-long verdict, failed to evaluate even prima facie of the most basic issue.

“The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task.”

The Court had, in order dated 11.11.2020 said that

“… the High Court was in error in rejecting the applications for the grant of interim bail.”

Background

The matter relates to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ The deceased had allegedly left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues. Arnab Goswami was arrested on 4 November 2020 under Sections 306 and 34 of the IPC. It was alleged that Goswami, the owner of ARG, had not paid an amount of Rs. 83 lacs and there was an outstanding amount of Rs. 4 crores from Feroz Shaikh and Rs. 55 lacs from Nitesh Sarda.

The Bombay High Court had, on November 9, held that no case for release of accused was made out.

It was Goswami’s case before the Supreme Court that his arrest was rooted in malice in fact, which was evident from the manner in which he has been targeted for his news broadcasts criticizing the Maharashtra government and the Maharashtra police. Several incidents leading up to the arrest were highlighted including FIRs lodged against him for alleged defamatory news show telecast on April 21 in connection with the Palghar mob-lynching case where he attacked Sonia Gandhi for orchestrating the incident; issuance of a letter by the ―Shiv Cable Sena to cable operators across Maharashtra asking them to ban the telecast of Republic TV; TRP Scam case, etc.

Analysis

Jurisdiction of the High Court under Article 226 and Section 482 CrPC

Bombay High Court, relying on decision in State of Telangana vs Habib Abdullah Jeelani, (2017) 2 SCC 779, had declined to even prima facie enquire into whether the allegations contained in the FIR, read as they stand, attract the provisions of Section 306 read with Section 34 of the IPC, stating that since the petition was being posted for hearing on 10 December 2020, it was not inclined to enquire into this aspect of the case and the appellant would be at liberty to apply for regular bail under Section 439.

The Court, hence, discussed the true import of Habib Jilani decision and said that the said decision arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriate interim orders as thought apposite in law.

“Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out.”

Prima Facie evaluation of the FIR and the grant of bail

While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court.

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar considerations

Applying the factors to the case at hand, the Court noticed that a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses.

“If the High Court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 of the IPC. The failure of the High Court to do so has led it to adopting a position where it left the appellant to pursue his remedies for regular bail under Section 439. The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage.”

Human liberty and the role of Courts

“In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty.”

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“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.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“Our district judiciary is wrongly referred to as the ‗subordinate judiciary‘. It may be subordinate in hierarchy, but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them.”

High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency.”

Direction

The interim protection which has been granted to the above accused by the order dated 11 November 2020 shall continue to remain in operation pending the disposal of the proceedings before the High Court and thereafter for a period of four weeks from the date of the judgment of the High Court, should it become necessary for all or any of them to take further recourse to their remedies in accordance with law.

*Justice Dr. DY Chandrachud has penned this judgment 

[Arnab Manoranjan Goswami v. State of Maharashtra, Criminal Appeal No. 742 of 2020, decided on 27.11.2020]

For Arnab Goswami: Senior Advocate Harish N. Salve

For Respondents: Senior Advocates Kapil SIbal, Amit Desai and CU Singh

For Feroz Shaikh: Senior Advocate Gopal Sankaranarayanan

For Neetish Sarda : Senior Advocate Mukul Rohatgi

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present petition, reiterated the scope and power of the High Court in entertaining a successive bail application, in addition to, the general principles governing the same.

Brief Facts

Facts of the case are enumerated herewith;

  1. That the petitioner was found in the possession of contraband substances weighing around 25kgs.
  2. That the petitioner was subsequently booked under Sections 8 and 15 of the NDPS Act and challan was thereby filed before the Court of Principal Sessions Judge, Ramban.
  3. That an application was later moved before the Court of Principal Sessions Judge, Ramban, and the same was rejected by the Court vide order dated 20-03-2020.
  4. That being aggrieved of the said order, the petitioner has filed the instant petition, for grant of bail on the grounds that the contraband allegedly shown to be recovered from the possession of the petitioner is an intermediate quantity, and therefore the rigor of Section 37 NDPS Act will not apply to the present case.

Observations

In pursuance of its decision, the Court made the following observations;

With respect to the jurisdiction of the Court on the present Bail Application, the Court said, “The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.” Reliance was placed on Gurcharan v. State (Delhi Administration), (1978) 1 SCC 118 and Devi Das Raghu Nath Naik v. State, 1987 Crimes Vol. 3 Page 363 in this regard.

Moreover reiterating the objective of granting bail, the Court observed, “It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.”

Narrowing down to the facts of the present case, the Court said, “As already noted, the quantity of contraband allegedly recovered from the accused does not fall within the parameters of ‘commercial quantity’ and in view of the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affect the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner is in custody for more than eleven months and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail.”

Decision

Releasing the petitioner on bail, the Court said that the discretionary power of granting bail cannot be exercised on the basis of public sentiments as the guilt of the petitioner is yet to be proved. The Court further imposed necessary conditions while allowing the present application.[Manzoor Ahmad v. Union Territory of J&K, 2020 SCC OnLine J&K 570, decided on 09-11-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: After a day-long hearing in the matter relating to the arrest of Republic TV Editor-in-Chief Arnab Goswami, Feroz Mohammad Shaikh and Neetish Sarda in relation to the alleged suicide of Anvay Naik and his mother Kumud Naik, the vacation bench of Dr. DY Chandrachud and Indira Banerjee, JJ has directed the release of all three on interim bail.

The Court had further directed that all three will be released subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. It also directed them to cooperate in the investigation of the matter and not to make any attempt to interfere with the ongoing investigation or with the witnesses.

The matter was listed on urgent basis during Diwali break of the Supreme Court, appealing against the Bombay High Court decision dated 9 November 2020, by which the applications for the grant of the interim bail moved by the appellants pending the disposal of their writ petitions were rejected.

The Court said,

“… the High Court was in error in rejecting the applications for the grant of interim bail.”

While the detailed judgment with reasons will follow, the Court has asked the jail authorities and the Superintendent of Police, Raigad to ensure the compliance of this order.

The matter relates to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ The deceased had allegedly left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues.

The Bombay High Court had, on November 9, held that no case for release of accused was made out.

[Arnab Manoranjan Goswami v. State of Maharshtra,  2020 SCC OnLine SC 931, order dated 11.11.2020]

Read the detailed analysis of the Bombay High Court judgment here.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and M.S. Karnik, JJ., while denying interim protection to Arnab Goswami in a case of alleged abetment to suicide discussed the essence of “Power of Superintendence”.

The instant application was filed for interim protection in a criminal petition filed for a Habeas Corpus to produce the petitioner who had been illegally arrested and wrongfully detained by the Alibaug Police Station in regard to an FIR registered under Sections 306 and 32 of the Penal Code, 1860 despite a closure report being filed.

Petitioner alleged gross abuse of State’s power by respondents in effecting his arrest and consequent alleged illegal detention.

Senior Advocate Harish Salve for the petitioner, Senior Advocate Amit Desai for State and Senior Advocate Shirish Gupte appearing for the victim.

Senior Advocate Harish Salve contended that not only the arrest is a malafide action and abuse of the State’s power, but the arrest is ex-facie illegal in view of the closure report filed before the Magistrate.

Re-investigation commenced by respondents was being conducted without any permission of the Magistrate under Section 173(8) of the Criminal Procedure Code, 1973.

Court shall exercise its extraordinary powers under Article 226 of the Constitution of India and inherent jurisdiction under Section 482 CrPC by protecting the petitioner.

Reference to the FIR | Alleged Suicide

 The FIR dated 05-05-2018 was in relation to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ It was alleged that the deceased had left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues. Officers of the Alibaug Police Station visited the petitioner’s office informing him about the unfortunate incident and stated that the suicide note had the name of the petitioner.

Senior Advocate Salve submitted that in blatant violation of the fundamental rights to life and personal liberty of the petitioner and his dignity, the petitioner was arrested. He was forced out from his residence with police officials barging into his house and dragging him into the police vehicle. Even his son was assaulted in this process.

Brazen attempt of vendetta politics

Senior Advocate urged that once the case was closed by Mumbai Police in the year 2019, which report was also accepted by the Chief Judicial Magistrate, the same is being reinvestigated with the sole purpose of misusing the power, concocting facts and forcefully arresting the petitioner in a prima facie act of revenge and vengeance for his news coverage which questioned those in power in the State of Maharashtra.

He added to his submission that there is a desperation on the part of the political dispensation to falsely implicate the petitioner in the said case and to reopen the matter.

Since there was no direct involvement of the petitioner with the deceased, the ingredients to attract the offence of abetment were also absent.

Cases relied upon by the Senior Advocate to support his submissions were:

Arjunan v. State, (2019) 3 SCC 315

Mohan v. State, (2011) 3 SCC 626

SS Cheena v. Bijay Kumar Mahajan, (2010) 12 SCC 190

Amlendu Pal v. State of West Bengal, (2010) 1 SCC 707

Gurcharan Singh v. State of Punjab, Supreme Court of India Criminal Appeal No. 40 of 2011

Rajesh v. State of Haryana, 2019 SCC OnLine SC 44

Adding to his contentions, Senior Advocate also submitted that once a case is closed by the Chief Judicial Magistrate, then the Investigating Officer has no power to re-investigate the matter unless the order granting ‘A’ summary by Chief Judicial Magistrate is set aside.

If re-investigation itself is on an illegal premise, the detention of the petitioner has to be declared as illegal.

Mr Salve further contended that the manner in which false cases are being registered against the petitioner and his channel and the apparent desperation of the political dispensation to implicate the petitioner in false cases, would justify an exercise of power of the High Court to stay the investigation and prevent the abuse of process and promote the ends of justice.

Analysis, Law and Decision

In the light of the law laid down by the Supreme Court in the case of State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC 745, the question as to whether a Writ of Habeas Corpus could be maintained in respect of a person, who is in police custody pursuant to the remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, is no more res integra.

Bench referred to the decision of Supreme Court in Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266, wherein the High Court had released the original petitioners on bail while exercising writ jurisdiction. Supreme Court had allowed the appeal filed by the Serious Fraud Investigation Office and original writ petitioners and directed to surrender before the Special Court.

Adding to its analysis, Court stated that the issue as to the exercise of jurisdiction by the High Court in a proceeding relating to the quashing of First Information Report has been authoritatively dealt with in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779. In the cited case, parameters as to the circumstances and situations where the Court’s inherent power can be exercised were clarified.

Bench in the instant matter opined that the High Court has jurisdiction to quash the investigation and pass appropriate interim orders as though apposite law. Though, powers are to be exercised sparingly and that too, in rare and appropriate cases and in extreme circumstances to prevent abuse of process of law.

“The legislature has provided specific remedy under Section 439 CrPC for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under Section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while the entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure.”

Power of Superintendence

Court stated that in light of the relevant provisions, State Government in exercise of its powers directed the local Crime Investigation Branch, Raigad—Alibag to conduct further investigation of the said offence.

Supreme Court in its’ decision of State of Bihar v. J.A.C Saldanha,, (1980) 1 SCC 554  explained the concept of power of superintendence:

“17. The High Court construed the expression ‘superintendence’ in S. 3 of the Act to mean ‘general supervision of the management of the police department and does not vest the State Government with authority to decide what the police alone is authorised to decide’. There is nothing in the Act to indicate such a narrow construction of the word ‘superintendence’. Nothing was pointed out to us to put a narrow construction on this general power of superintendence conferred under the Act on the State Government and there is no justification for limiting the broad spectrum of power comprehended in power of superintendence. Accordingly superintendence would comprehend the power to direct further investigation if the circumstances so warrant and there is nothing in the Code providing to the contrary so as to limit or fetter this power.”

Hence, in view of the above, Court stated that the State Government can always direct a further investigation to the police officers concerned.

Rule 219 of the Bombay Police Manual, 1959

Clause (3) of the above stated Rule would indicate that “A” summary is granted in a case where the offence is committed but the same is undetected, in that, where there is no clue whatsoever about the culprits or property or where the accused is known but there is no evidence to justify the same for being sent to the Magistrate (trial).

In the instant case, jurisdictional Magistrate classified the case and issued “A” summary in this case. Consequent upon receiving instructions pursuant to the complaint made by the victim to the superiors, the local Crime Branch intimated the jurisdictional Magistrate that they wanted to the carry out further investigation in the offence.

“A distinction also exists between further investigation and reinvestigation. It is observed that whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not.”

Court holds that the Magistrate was intimated about the further investigation and even statements were recorded under Section 16 CrPC after obtaining permission from Chief Judicial Magistrate.

Hence further investigation cannot be held as illegal and without seeking permission of the Magistrate. Same is in consonance with the power conferred by Section 173(8) CrPC.

Informant had filed the representation to the State Government and police officers for redressal of her grievance.

Bench further considered the decision of the Supreme Court in Vinubhai Haribhai Malaviya v. State of Gujarat, 2019 SCC OnLine SC 1395 considered the fact situation as to whether post-cognizance, the Magistrate is denuded of is powers of further investigation.

In the instant matter, post-filing of “A” summary, an intimation was given to the Magistrate by the Investigating Officer that they were carrying out further investigation whereafter, even the statements under Section 164 of the Code of Criminal Procedure were recorded by the Magistrate concerned pursuant to the directions issued by the Chief Judicial Magistrate.

“The continuous persuasion of the State Government by the informant for redressal of her grievance since her two family members had committed suicide, and in the aforesaid background, the concerned Investigating Officer, after intimating the Magistrate, commences the further investigation, cannot be said to be irregular or illegal by any stretch of imagination.”

Stay the Investigation

Supreme Court’s decision in State of Haryana v. Bhajan Lal,  1992 Supp (1) SCC 335, was referred, wherein it was held that,

“That the core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether that the field of investigation of any cognizable offence is exclusively within the domain of the investigation agencies over which the Courts cannot have control and have no power to stiffle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.”

(emphasis supplied)

In such view of the matter and since the writ petitions have been posted for hearing on 10-12-2020, Court declined to stay the investigation.

Therefore, the Bench held that no case for release of the applicant was made out. Petitioner has an alternate and efficacious remedy under Section 439 CrPC to apply for regular bail. [Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine Bom 2615, decided on 09-11-2020]

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., while denied bail on the light of giving divorce in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Applicant sought anticipatory bail for cases registered under Sections 377, 498 A, 323, 504, 506 of Penal Code, 1860, Section 67 of the Information Technology Act and Section 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The victim in her FIR stated that the applicant had married twice earlier and had 5 children from his first wife. On obtaining a divorce from the first wife, he got married to the second wife.

When informant got married to the applicant, her mother’s gold was to her and Rs 3,50,000 were spent during the marriage. Further, the applicant gave some intoxicating drink to the first informant and in that situation took some photographs and recorded video fo the informant.

In the FIR, it was mentioned that the applicant had sex with her in October 2018. The applicant had inserted aluminium rod causing bleeding in her private parts as he didn’t want a child from this marriage. 

It was also alleged that the applicant used to harass the victim and used to ask her to bring money from her parental house. On one particular day, the applicant told the first informant to do all the work in the house, which the informant refused to do so and hence she was assaulted by the applicant. On the same day itself, the applicant gave her talaq.

Informant was later left at her parental house and was threatened that all he would make all the videos and photographs viral.

In view of the above, FIR was lodged.

Misbaah Solkar, Counsel for the applicant, R.M. Pethe, APP for the State and Adil Khatri, Counsel for the complainant.

Decision

Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which reads as follows:

“no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person”.

Bench found no reasonable ground for granting anticipatory bail to the present applicant. Informant’s counsel that she endured all the harassment over some period to save her marriage was also not improbable.

Considering the allegations, the applicant does not deserve the protection of anticipatory bail. The fact that the applicant was left at her parental house and her number was blocked, all of this corroborates to the allegations that, he had divorced informant illegally in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Allegations of inserting a rod in informant’s private parts and capturing indecent photos and videos require custodial interrogation.

Hence no anticipation bail was granted. [Ebrahim Mohd. Iqbal Lakdawala v. State of Maharashtra, Anticipatory Bail Application (ST) No. 2224 of 2020, decided on 21-10-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra J., allowed the application and granted bail in the matter concerning offence under Protection of Children from Sexual Offences Act, 2012 (POCSO).

The facts of the case are such that the father of the prosecutrix lodged FIR informing that his daughter left the house in the afternoon and did not return till evening informing over his mobile that she will not be returning in the night. Later, in her Section 164 Criminal Procedure Code,1973 statement the prosecutrix stated that she is in love with the applicant for about 6-7 months prior to the incident and had gone with him of her own and stayed in the house of the applicant’s maternal uncle. In her diary statement, she alleged that first sexual intercourse happened on 14-5-2020 and thereafter, on 5-6-2020 thereby stating that she is having an affair with the applicant. Hence the applicant was arrested for the offence under Section 363, 366 & 376 of the Indian Penal Code and Sections 4, 6 of the Protection of Children from Sexual Offences Act, 2012. Aggrieved by this, instant bail application has been filed before the Court.

The submissions made before the Court are that the prosecutrix and her father has no objection if the applicant is allowed bail.

The Court observed that the prosecutrix is less than 16 years of age, however, considering the affair and no objection of herself and her father during the hearing of the bail application, bail was granted.

In view of the above, the application was allowed and disposed off.[Diwakar Yadav v. State of Chhattisgarh, 2020 SCC OnLine Chh 491, decided on 02-11-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J., dismissed an application for grant of pre-arrest bail to the petitioners. The petitioners apprehend arrest in connection with Dumraon PS Case No. 201 of 2019 dated 08-06-2019, instituted under Sections 341, 323, 498A, 307 and 34 of the Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961. The petitioners are the father-in-law and mother-in-law of respondent 2.

Earlier on 03-09-2020, the Court had recorded that a consensus has been reached whereby the petitioners and their son is ready to keep respondent 2 in the matrimonial home with love and affection and the willingness is reciprocated by the respondent as well. The petitioners and their son were to work out modalities of the reunion of the husband and wife.

However, it is conveyed by Digvijay Kumar Ojha that the petitioner’s son has filed a divorce petition in Bhopal against respondent 2 on 31-08-2020. Initially, the counsel had stated that the petition has been filed on 09-10-2020.

The Court found this revelation with respect to the date of filing the divorce petition to be irrelevant as it has been categorically stated in the pleadings that petitioner’s and their son are willing to keep respondent 2 in their matrimonial home.

The son (respondent 2’s husband) had filed a case for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which has been allowed ex-parte in his favour. Thereafter, the divorce case has been filed.

The Court is of the opinion that the conduct of the petitioners has cast a shadow of doubt over their intent. When they had already filed an application for anticipatory bail and the suit for restitution has been decided in the favour of the petitioner’s son, then going ahead a divorce petition makes absolutely no sense especially in view of the Covid19 pandemic. It appears that this is just a ploy to defy the stand taken by the petitioners earlier that they were willing to keep respondent 2 in their home. The Court can observe that whatever ensued is the result of a well planned strategy devised by the petitioners where, by first filing an application for restitution of conjugal rights and taking a stand before the Court in the present proceeding that their son was ready to keep the wife with all love and affection and they had no objection to their matrimonial life and in support thereof, showing that he has filed an petition for restitution of conjugal rights, and then getting the same decreed ex-parte, knowing fully well that the petition filed at Bhopal would be difficult to be contested by the opposite party no. 2, who is living at Dumraon in the district of Buxar, especially in the present times and then getting ex-parte decree and then filing a petition for divorce, raises grave misgivings about the conduct of the parents and their son.

The Court is of the understanding that it has been deliberately misled through the categorical pleadings in the application which was again reiterated by the petitioner’s counsel. In the garb of asking for a chance to work out things, the petitioners and their son were trying to fool the Court.

On the issue of the divorce petition, the Court observed that mere filing of the petition does not act as a roadblock in the parties willing to resume their matrimonial relationship and if the petitioners and their son were really desirous of the same then they should have done it already. It is evident that both the pleading and the stand of the petitioners lacks bona fide and has been done solely with the purpose of getting the Court to grant them indulgence.

Counsel for the state, Suresh Prasad Singh has submitted that independent witnesses have confirmed the allegations of there being a demand of dowry right after the marriage.

In view of the above, the present application has been dismissed by the Court denying relief to the petitioners.[Jai Kishun Yadav v. State of Bihar, 2020 SCC OnLine Pat 1808, decided on 19-10-2020]

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Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia J., while rejecting the present petition observed that the ingredients of Section 37 NDPS Act seem to be adequately met in the given factual matrix and, “Therefore, the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour.”

 The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release under Sections 20, 25 and 29 of the NDPS Act. As per the case of the petitioner, he is innocent and been falsely implicated in the present case. Neither is he in a position to tamper with the prosecution evidence nor in a position to flee from justice. Therefore, no fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.

It is submitted by the counsel for the State, S.C. Sharma, Additional Advocate General with Kuldeep Thakur, Deputy Advocate General, that the petitioner was caught red-handed in exclusive and conscious possession of a huge quantity of charas. In case he is enlarged on bail, the petitioner may flee from justice or tamper with the prosecution evidence, as the trial is yet to begin.

The Court discussed the rationale of Mohan Lal v. State of Punjab, (2018) 17 SCC 627, and emphasized how it cannot find relevance in the present facts and circumstances. The Court observed, “True it is that there is presumption of innocence until a person is held guilt and the prosecution cannot be allowed to rest its case on preponderance of probabilities. However, for grant of bail each case has to be examined on vital contours, viz., to secure the presence of the accused for trial, his being in a position to tamper the prosecution evidence, his chances of fleeing etc. and this list of contours can be stretched depending upon facts and circumstances of each case.”  Acknowledging the fact that the contraband was obtained from the floor of the car the Court said, “There is reasonable apprehension that the petitioner was well aware qua the contraband, its quantity and it being transported in the said car, thus he had active role in the commission of the offence, being accomplice of co-accused.”

While rejecting the bail application, the Court said that there exists a prima facie case against the petitioner and the co-accused and allowing the bail application may have serious implication upon fair trial and justice. The Court found conscious possession of contraband substances, an essential ground for disallowing the same.[Pradeep Kumar v. State of Himachal Pradesh,  2020 SCC OnLine HP 2222, decided on 02-11-2020]

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Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of H.C. Mishra, Rajesh Kumar, JJ., while dismissing the present appeal, discusses the power of Court to tender pardon under Sections 306 and 307 Criminal Procedure Code, 1973.

 Brief Facts

  • That the case relates to an occurrence dated 9-07-2008, when in a prize distribution function in a high school at village Bundu, the local MLA and three persons were killed, including a child of the school, in indiscriminate firings made by the extremists belonging to CPI (M) Party.
  • That a case was registered under Sections 302 / 34 of the Penal Code, 1860, read with Section 120-B of the Penal Code, 1860, Sections 18,19 and 20 of the Unlawful Activities (Prevention) Act, 1967 and Section 25(1-B) of the Arms Act.
  • That subsequently the investigation was handed over to the National Investigation Agency (NIA) and a chargesheet was submitted by it.
  • That the appellant was apprehended, who confessed his guilt and also consented to making a full and true disclosure of the whole of the circumstances relating to the offence and about the involvement of the other culprits belonging to CPI (M) Party, by whom the offence was committed.
  • That the appellant has also been made approver in the present case and was tendered pardon by the NIA Court, which he voluntarily accepted.
  • That the appellant prayed for bail, but the NIA Court, taking into consideration the provisions under Section 306 (4) (b) of the CrPC, rejected the application of the appellant by the impugned order dated 06-07-2019. Hence this appeal under Section 21(4) NIA Act, 2008.

Contentions

Counsel for the appellant, Jitendra Shankar Singh has submitted that the impugned order passed by the NIA Court is absolutely illegal and cannot be sustained in the eyes of law, in as much as, the NIA Court is a Court of Session and in the present case, Section 306 of the CrPC, has no application, rather the case of the appellant shall be governed by Section 307 of the CrPC, in which there is no embargo as in Section 306 (4) (b) of the CrPC Counsel for the appellant accordingly submitted that since the appellant has already been tendered pardon by the Court, he is entitled to be released on bail.

Counsel for the NIA, Rohit Ranjan Prasad, on the other hand, has opposed the prayer and submitted that the NIA Court is the original Court and accordingly, the case of the appellant shall be governed by Section 306 of the CrPC, wherein sub-Section (4)(b) provides that the person accepting the tender of pardon, if in custody, shall be detained in custody, until the termination of the trial, and as such, there is no illegality in the impugned order passed by the NIA Court, and the appeal is fit to be dismissed.

 Observations

The Court reproduced Section 306 and Section 307 CrPC, 1973 and simplified the same by stating,

“Section 306 lays down the procedure to be followed while tendering the pardon when the case is pending in the original Court of trial, i.e., the Court of the Chief Judicial Magistrate or a Metropolitan Magistrate or the Magistrate of first class, as the case may be.” and the person accepting such tender of pardon, if in custody, shall retain such status until the termination of trial. With respect to Section 307 CrPC, the Court said, “this provision relates to the Courts to which the case is committed by the original Court, and this power can be exercised only after the case is committed to that Court by the Magistrate. (…) It separately does not lay down the detailed procedure to be followed while tendering the pardon, as has been done in Section 306 of the CrPC nor does it mention about the Court of Session, rather it only refers to the Courts to which the commitment is made. However, since the cases are committed to the Court of Session by the Magistrate, it is submitted by learned counsel for the appellant that Section 307 of the CrPC, relates to the Court of Session, and since the NIA Court is also a Court of Session, the pardon tendered by it shall be governed by Section 307 of the CrPC, and not by Section 306 (4) (b) of the CrPC” With respect to the said argument the Court conclusively remarked, “(…) since this is a special offence triable before the Special Court of NIA, there is no question of commitment of the case to that Court, rather the NIA Court exercises the original jurisdiction for trial of the offence, and accordingly, the NIA Court exercises the power under Section 306 of the CrPC, while tendering pardon”

The Court said that, even otherwise, the Court to which the commitment is made has to abide by the procedure laid down under Section 306 CrPC as clarified by the expression “tender a pardon on the same condition to such person”. Additionally, the Court observed that in the given facts and circumstances, NIA Court operated both as a Court of Sessions Judge and that of a Magistrate.

 In pursuance of its above-mentioned observation, the Court cited the case of; Bangaru Laxman v. State, (2012) 1 SCC 500, “Thus, on a harmonious reading of Section 5(2) of the PC Act with the provisions of Section 306, specially Section 306(2)(a) of the Code and Section 26 of the PC Act, this Court is of the opinion that the Special Judge under the PC Act, while trying offences, has the dual power of the Sessions Judge as well as that of a Magistrate. Such a Special Judge conducts the proceedings under the court both prior to the filing of charge sheet as well as after the filing of charge-sheet, for holding the trial.”

The Court further placed reliance on the case of; Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80, so to emphasize the object of not granting bail in the given facts, “The dominant object of requiring an approver to be detained in custody until the termination of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated.

 Decision

While dismissing the present appeal on lack of merits, the Court emphasized the settled precedents and the role of Special Courts while exercising power under Section 306 CrPC. [Tipru Buruma v. National Investigation Agency, Cr. Appeal (DB) No. 790 of 2019, decided on 10-10-2020]

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Case BriefsSupreme Court

Supreme Court: Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

Going into the legislative intent, the Court noticed that Section 167(2) was enacted providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.

“… the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused.”

Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. Hence,

“Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.”

Further, in case of any ambiguity in the construction of a penal statute, the Courts must favour the   interpretation which leans towards protecting the rights of the accused, given the ubiquitous   power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

The Court, hence, concluded as follows:

  • Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.
  • The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
  • Where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.
  • Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Earlier this month, in Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

[M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867, decided on 26.10.2020]

Case BriefsHigh Courts

Patna High Court: In an application challenging the order of rejection of bail passed by Additional Sessions Judge, Ashwani Kumar Singh, J., set it aside enlarging the appellant-accused on bail.

The instant application has been filed by the appellant under Section 101(5) of the Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act) challenging the order dated 24-09-2019 passed in Child Case No. 6 of 219 by the Additional Sessions Judge, Buxar in connection with P.S. Case No. 21 of 2019 registered under Section 376 of the Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The factual background in the present matter is that serious allegations have been placed on the appellant for committing the act of rape on the victim aged 13. The FIR was registered on the basis of the written report submitted by the mother of the victim subsequent to which, the appellant was arrested and produced before the Special Judge (POCSO), Buxar. Further, the statement of the victim was recorded under Section 164 of the Criminal Procedure Code, 1973.

Contradictory to the FIR, the victim made no mention of rape in her statement and spoke of a meeting between the appellant and herself.

Later, a petition was filed by the appellant before the Special Judge, Buxar claiming the on the day of occurrence he was a juvenile. During this period of time, a bail application was filed which was adjourned to different dates. With the bail application still pending, the Special Judge (POCSO), Buxar sent the case to Juvenile Justice Board, Buxar for the examination of his claim of juvenility. The Board determined the appellant’s age and declared him a juvenile vide order dated 02-08-2018. Subsequently, the Board made an assessment of the physical and mental ability of the appellant under Section 15 of the JJ Act and found it fit to transfer the appellant’s case to Children’s Court and accordingly, transferred the entire case record to the court of Special Judge (POCSO), Buxar for the trial of the appellant as an adult.

Later on, the Special Judge (POCSO), Buxar vide order dated 24-09-2019 rejected the bail application of the appellant. Upon careful perusal of the impugned order dated 24-09-2019, this Court observed that the bail application has been rejected primarily due to the serious nature of the offence and the charge-sheet that has been filed against the appellant. The trial court has erred by overlooking the victim’s statement under Section 164 CrPC. Also, undue importance has been given to the inconclusive medical report which only raises the possibility of a sexual act with the victim. The manner in which the alleged crime was committed hasn’t been indicated anywhere. The report of the probation officer seems completely hypothetical and beyond any reasoning. The Court also relied on the judgment in the case of Lalu Kumar v. State of Bihar, 2019 SCC OnLine Pat 1697.

In view of the above, the Court found the impugned order unsustainable and set it aside. In addition to this, the appellant has been released on bail. The appeal has been allowed.

[X9 v. State of Bihar,  2020 SCC OnLine Pat 1665, decided on 15-10-2020]

*The name of the appellant-accused has been withheld as per the statutory provisions prescribed under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

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Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha, J., while allowing the present application for bail under Section 439 Criminal Procedure Code, 1973 made significant observations with respect to default bail under Section 167(2) Criminal Procedure Code and protection guaranteed by Article 21 of the  Constitution of India.

 Brief Facts

The facts of the case are briefly enumerated hereunder;

  1. That the petitioner accused 2 and 3 were arrested and produced before the Court on 28-12-2019 on the charge of committing offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”)
  2. That as per Section 36A(4), the respondent was required to file charge-sheet by 27-06-2020 but an application was filed before the Special Judge for NDPS cases, seeking an extension of time.
  3. That an order with respect to the aforementioned application was passed, dated 1-06-2020, granting an extension of time by another 90 days, to the respondent authority.
  4. That the present petition is moved under Section 439 CrPC, praying to enlarge the petitioner on bail exercising right against the same under Section 167(2) CrPC.

 Issue

  1. Whether the petitioners are entitled to grant of bail as per Section 167(2) r/w Section 36A(4) of the NDPS Act due to non-completion of the investigation?

 Observation

The Court cited the following cases pursuant to its decision;

  • Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Highlighting the prerequisite of granting an extension of time to the investigative authorities, the Court said, “when a report is submitted by the Public Prosecutor to the designated Court, for extension under Clause (bb), notice shall be issued to the accused before granting such an extension so that the accused may have an opportunity to oppose the extension of time on legitimate grounds available to him.”
  • Sanjay Dutt v. State, (1994) 5 SCC 410; Clarifying on what shall be considered as an aforementioned notice, the Court held, “requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered is sufficient for the purpose.”
  • Sanjay Kumar Kedia v. Intelligence Officer, NCB,2010 Cri.L.J 2054; In this case, the Court relying on the decision in Hitendra Vishnu, said that the proviso inserted as (bb) in sub-section (4) of Section 20 of TADA was pari-pateria with proviso to sub-section (4) of Section 36A of NDPS Act and an extension in such cases can be granted only upon satisfaction of certain conditions.
  • Kasi v. State; 2020 SCC OnLine SC 529, wherein considering the extension given by the High Court of Madras on the ground that the time period under section 167(2) CrPC is eclipsed by the judgment of the Supreme Court dated, 23-03-2020 in Suo Moto WP(C) No. 3 of 2020, it was held “Para 17. The order dated 23-03-2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The IO could have submitted/filed the charge sheet before the Magistrate.” Therefore, even during the lockdown as has been done in so many cases the chargesheet could have been filed/submitted and the IO was not precluded from filing the same. There is no contradiction at all with respect to the extension of limitation order by the Supreme Court order dated 23-03-2020 and the statutory protection granted under Section 167(2) CrPC.
  • The Court also observed that the right of accused under Section 167 CrPC can be denied only when the accused fails to furnish bail as mentioned under Explanation I to the said Section. It was further said that proviso to Section 167(2) CrPC is beneficial legislation made to cure the mischiefs of the preliminary investigation.

Decision

While allowing the present petition, securing bail bond and sureties, the Court reiterated the observation of the Supreme Court where it was categorically stated, “Personal Liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to the procedure established by Law. So long as the language of Section 167(2) of CrPC remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India. The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights.” The Court further said that the present instance is an indirect frustration of the petitioner’s right under Section 167(2) CrPC and it is “really shocking to note that even after expiry of the extended period of 90 days, neither the charge sheet has been filed nor the accused has been produced before the Court.” [Sayeed Majid Ahamad v. State of Karnataka, Crl Pet. No. 4398 of 2020, decided on 05-10-2020]

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Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., while dismissing a criminal petition for enlargement on bail, said, “There are prima facie materials against the petitioner; Section 37 of the NDPS Act is very much attracted.”

Brief Facts

1. That the Police Inspector received credible information on 11-6-2020 that about six persons living in a house were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances.
2. That subsequently, the Police Inspector conducted a raid on that house, seized the substances and arrested those persons.
3. That the present criminal petition is instituted to enlarge the petitioners on bail, on the ground (i) non-compliance of standing instructions; FSL report pending (ii) no registration of FIR prior to search (iii) contraband substances were not seized from the ‘conscious possession’ of the accused.

Observations

1. The panchanama discloses recording of reasons by the police officer for not being able to apply for search warrant and also compliance of proviso to Section 42(1) of the NDPS Act. It further states that the search was made in the presence of a gazetted officer, therefore there is due compliance of all the requirements envisaged under NDPS Act.

2. With respect to the contention that, the substances seized were not in the ‘conscious possession’ of the accused, the Court said,

“If a bag containing contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents, the burden is on him to establish it.”

3. Ben Okoro v. State of Karnataka, Crl. P. No. 8644 of 2017, In this case, bail was granted to the accused taking note of the fact that the qualitative and quantitative report was not obtained within 15 days as per standing Instruction No. 1/1988.

4. Kelsi Katte Mohammed Shakir v. Superintendent of Customs, Crl. P. No. 5402 of 2018, The position in the above-mentioned case was reiterated.

5. However, in Nonso Joachin v. State of Karnataka, following the Supreme Court decision in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 SCC 549, The Court said,

“If the investigation officer could not obtain the FSL report within 15 days, it is not so significant that too when there are other materials indicating the existence of prima facie materials about the involvement of the petitioners in commission of offences.”

6. The Court while citing, Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Court made the following observation,

“The focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action.”

Decision
Observing that there are prima facie materials against the petitioner, the Court dismissed the instant criminal petition on the lack of merits. [Tasleem N.P v. State of Karnataka, 2020 SCC OnLine Kar 1533, decided on 01-10-2020]

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Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Right to default bail

Explaining the law on grant of default bail, the Court said that so long as an application for grant of default bail is made on expiry of the period of 90 days, which application need not even be in writing, before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed.

“So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”

Power of the Court to extend the period of 90 days up to a maximum period of 180 days

The Court was dealing with the question relating to extension of time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967 (UAPA). It, hence, discussed at length, the scheme of the statutes.

Section 167 CrPC

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days. The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Section 43-D(2)(b) of UAPA

Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days.

“Court” under UAPA

Before the National Investigation Agency Act, 2008 (NIA Act) was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions.

However, this Scheme has been completely done away with by the NIA Act as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

“In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone.”

Hence, for offences under the UAPA, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself.

[Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824, decided on 12.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Vineet Saran and S. Ravindra Bhat, JJ has held that no person is entitled to a copy of statement recorded under Section 164 of the Criminal Procedure Code, 1973 till the appropriate orders are passed by the court after the charge-sheet is filed.

“The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before.”

BACKGROUND OF THE CASE

The Court was hearing the case where

  • the father of the Appellant lodged a Complaint that he had seen a video of the Appellant on her Facebook account alleging that Swami Chinmayanand and some others had sexually exploited the Appellant and many other girls; that the Appellant was not contactable; that he was apprehending danger to the Appellant; and that prompt action be taken in the matter.
  • The said Facebook video having gone viral, letters were written to the Supreme Court by some advocates whereafter Suo Motu Writ Petition was registered. On 30.08.2019 it was reported that the Appellant was found in District Dausa of State of Rajasthan whereafter the Supreme Court recorded the statement of the Appellant that she did not intend to go back to Uttar Pradesh but would meet her parents in Delhi. Certain directions were therefore passed.
  • In its Order dated 02.09.2019, this Court directed the Chief Secretary, State of Uttar Pradesh, to constitute a Special Team to enquire into the grievances expressed by Miss “A” and insofar as the apprehension expressed by the parents of Miss “A”. It also directed the Chief Secretary, State of Uttar Pradesh, to direct the Superintendent of Police of the concerned district, namely, Shahjahanpur, to afford protection to the parents and family members of the girl on assessing the threat perception.
  • On 20.09.2019, Swamy Chinmayanand was arrested and his application for bail was rejected by the Chief Judicial Magistrate, Shahjahanpur on 23.09.2019.
  • In November 2019, the High Court directed that trial court to provide a certified copy of the statement of victim recorded under Section 164 Cr.P.C. to the applicant subject to payment of usual charges.
  • Before the Appellant could challenge the decision of the High Court, by filing the instant Special Leave Petition on 13.11.2019, a copy of her statement recorded under Section 164 of the Code was made over to the accused.

WHAT THE COURT SAID

The Supreme Court noticed that the High Court completely erred in appreciating the directions issued by this Court, especially in a matter where the offences alleged against accused are of sexual exploitation.

“In such matters utmost confidentiality is required to be maintained. In our view, the High Court completely failed in that behalf.”

Explaining the Scheme of the relevant provisions of CrPC, the Court said that after the conclusion of the investigation, an appropriate report under Section 173 of the Code is to be filed by the police giving information as required by Section 173.

In terms of Section 190 of the Code, the concerned Magistrate may take cognizance of any offence inter alia upon a police report. At the stage of exercise of power under Section 190 of the Code, the Magistrate may deem fit that the matter requires further investigation on certain aspects/issues and may pass appropriate direction. It is only after taking of the cognizance and issuance of process that the accused is entitled, in terms of Sections 207 and 208 of the Code, to copies of the documents referred to in said provisions.

The filing of the charge-sheet by itself, does not entitle an accused to copies of any of the relevant documents including statement under Section 164 of the Code, unless the stages indicated above are undertaken. Thus, merely because the charge-sheet was filed by the time the High Court had passed the order in the present matter, did not entitle the accused to a copy of the statement under Section 164 of the Code.

Though, a copy of the statement recorded under Section 164 of the Code was made over to the accused, the Court set aside the order passed by the High Court and held that

“… under no circumstances copies of statements recorded under Section 164 of the Code can be furnished till appropriate orders are passed by the Court after taking cognizance in the matter.”

[Miss ‘A’ v. State of Uttar Pradesh,  2020 SCC OnLine SC 817, decided on 08.10.2020]

Case BriefsHigh Courts

Bombay High Court: Sarang Kotwal, J., while addressing the bail application filed by Actor Rhea Chakraborty in the Sushant Singh Rajput death case, considered several questions of law in regard to NDPS Act.

The present bail application was in regard to the case registered with Narcotics Control Bureau (NCB) for the offences under Sections 8(c) read with 20(b)(ii), 22, 27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic Substances Act, 1985.

ANALYSIS

Counsel for the applicant Satish Maneshinde raised the issue, whether NCB was competent to conduct the investigation. ASG urged that the Supreme Court in  Rhea Chakraborty v. State of Bihar,  2020 SCC OnLine SC 654 directed that the CBI should investigate any other case registered on the death of actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death.

Further, the ASG stated that the investigation conducted by NCB does not relate to the death of Sushant Singh Rajput and the consumption of drugs by the later actor was only part of the investigation. The said investigation ran deep into uncovering a chain of illicit traffic and drugs.

Bench opined that the contentions raised by the ASG have to be accepted and Mr Maneshinde’s submission that NCB is not empowered to investigate are to be declined.

Bail provisions under the NDPS Act are laid under Section 37 of the said Act.

In accordance with the said Section, Court is required to provide an opportunity to the Public Prosecutor to oppose the relief. Further, the Court should be satisfied about two conditions:

  • Reasonable ground for believing that the applicant is not guilty of the offence.
  • The applicant is not likely to commit any offence while on bail.

Bench has decided the present matter based on the guidelines mentioned in the Supreme Courts decision of Union of India v. Rattan Mallik, (2009) 2 SCC 624.

Questions to be decided in the present application:

  • Whether the offences alleged against the Applicant are bailable. This question needs to be decided because the Applicant is claiming her release on bail as a matter of right.
  • If the offences are non-bailable, then, as to whether rigours mentioned in Section 37(1)(b) of the NDPS Act are applicable.
  • If such rigours are not applicable and if the offences are non-bailable then whether the Court should exercise its discretion to grant or refuse bail.

Whether all the offences under the NDPS Act are non-bailable?

Applicant’s Counsel stated that the offences involving small quantities of contraband are bailable and he relied on this Court’s decision in Stefan Mueller v. State of Maharashtra, 2010 SCC OnLine Bom 1974.

Court cited the decision of Constitution Bench of the Supreme Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, wherein the ambit and scope of Section 50 of the NDPS Act was decided.

In the above decisions of State of Punjab v. Baldev Singh, (1999) 6 SCC 172 the amendment Act of 1988 was considered in detail and in clear terms, it was mentioned with no uncertainty that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.”

The above, categorical statement shows that Section 37, makes all offences non-bailable and lays down stringent conditions for grant of bail.

Hence, the High Court in the present matter, stated in view of the above that there is no further scope to argue that only some offences under the NDPS Act are non-bailable and other offences where punishment is less than three years are bailable as per Part II of the Schedule of CrPC.

Applicant’s Counsel particularly, Advocate Subodh Desai and Taraq Sayed contended that the above observations were ‘fleeting reference’ and do not have a binding effect.

To the above contention, bench stated that

Even obiter dictum of the Supreme Court is binding on this Court.

Supreme Court’s decision in Municipal Committee v. Hazara Singh, (1975) 1 SCC 794 was referred.

Further, the Court added that the observations in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 are in the nature of ratio decendi and they cannot be termed as fleeting reference.

In the case of Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638,  it was observed that even obiter of Supreme Court is of considerable weight.

Interplay between Sections 27A & 37

Applicant’s counsel raised another issue:

Section 37 indicates that rigours in granting bail are applicable for the offences involving commercial quantity and this concept will apply even to Sections 19, 24 and 27A of NDPS Act if only the offences involve commercial quantity.

Supreme Court in the decision of Union of India v. Niyazuddin Sk., (2018) 13 SCC 738 has enumerated the offences where special rigours apply.

“6. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said section. They are:

  1. In the case of a person accused of an offence punishable under Section 19,
  2. Under Section 24,
  3. Under Section 27-A and

  4. Of offences involving commercial quantity.”

Hence the Supreme Court observed that there are 4 categories and the offences involving commercial quantity is a separate category that has no direct connection with the earlier 3 categories i.e. Section 19, 24 and 27A.

Scope of Section 27A of the NDPS Act

Section 27A states the Punishment for financing illicit traffic and harbouring offenders.

As per NCB, the applicant financed procurement of drugs for Sushant Singh Rajput and harboured him knowing that he was consuming drugs and therefore she has committed offence punishable under Section 27A.

Legislature wanted to attack the basic cause of illicit traffic o drugs. Therefore a separate Section 27A was introduced to check these activities which were the root cause of illicit traffic. “Financing” and “harbouring” such activities were, therefore specifically mentioned under Section 27A.

The word “financing” would necessarily refer to some activities involving illegal trade or business.

Hence, the allegations against the applicant of spending money in procuring drugs for Sushant Singh Rajput will not mean that she had financed illicit traffic.

Section 27A indicates that financing is in respect to illicit traffic through which the financer expects monetary or other returns. This Section makes harbouring a punishable offence.

Further, Harbouring is in respect of a person who is engaged in such activities. It requires that he is either employed in or has involved himself with or has taken part in or has embarked on such activities.

Court observed that,

Section 27A will have to be interpreted harmoniously with other Sections as well as Objects and Reasons of the Act so that it attacks the illicit drug trafficking, but, does not extend to sentencing another accused more severely than the main offender.

Bench also disagreed with the submission that giving money to another for consuming drug would mean encouraging such habit and would mean “financing” or “harbouring” as envisaged under Section 27 A of the NDPS Act.

Allegations against the applicant

Applicant on some occasions had used her own money in procuring drugs and facilitated through her brother. For the said purpose, Sushant Singh Rajput’s employees were also used.

Bench stated that the applicant’s acts will not fall under Section 27A of NDPS Act.

The investigation did not reveal any recovery either from the Applicant or from the house of Sushant Singh Rajput. It is NCB’s own case that the drugs were already consumed and hence there was no recovery.

There is nothing at this stage to show that the Applicant had committed any offence involving commercial quantity of contraband.

Court found that that there are reasonable grounds for believing that the applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity.

Applicant was not part of the chain of drug dealers, she did not forward the drugs allegedly procured by her to somebody else and has no criminal antecedents.

While granting bail, Court imposed the following conditions:

  • Applicant is directed to furnish PR bond in the sum of Rs 1,00,000 with one or two sureties in the like amount.
  • Applicant shall deposit her passport with the investigating agency.
  • Cannot leave the country without prior permission of Special Judge for NDPS.
  • Applicant shall attend the investigating agency on the first Monday of every month for a period of 6 months.
  • After her release on bail, the Applicant shall mark her presence at the nearest Police Station from her residence anytime between 11:00 a.m. to 5:00 p.m. to show her availability, for a period of ten days from her release.

[Rhea Chakraborty v. Union of India, 2020 SCC OnLine Bom 990, decided on 07-10-2020]

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Case BriefsHigh Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., addressed a petition while reiterating the Supreme Court’s position in regard to Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 in view of bail.

Petition was filed under Section 439 Criminal Procedure Code, 1973 to enlarge the petitioner on bail. The case was registered for the offence under Section 20(b)(c) read with Section 8 (c) of the Narcotics Drugs and Psychotropic Substances Act, 1985.

Petitioner contended that nothing was recovered from him and he was implicated in the commission of offence only for monetary benefit, whereas A1 and A2 were found transporting Ganja in contravention of the NDPS Act, 1985 which constitute an offence punishable under Section 20(b)(c) read with 8(c) of NDPS Act.

It was stated that in case the petitioner was granted bail, there was every possibility of interfering with further investigation in the matter.

Court’s Analysis and Decision

Bench stated that unless it will be satisfied with the requirement under Section 37 of the NDPS Act, the petitioner cannot be enlarged on bail as a matter of course in view of the Supreme Court’s decision in State of Kerala v. Rajesh, 2020 SCC OnLine SC 81 which relied upon the decisions reported in Satpal Singh vs. State of Punjab, (2018) 13 SCC 813 and Union of India v. Ram Samujh, (1999) 9 SCC 429, wherein it was held that,

“The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C, but is also subject to the limitation placed by Section 37 which commences with non-obstanate clause”

“…The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.”

Hence in view of the above-stated reasons, and the principle laid down by the Supreme Court, bail was denied to the petitioner. [Chipurupalli Dali Naidu v. State of Andhra Pradesh, 2020 SCC OnLine AP 966, decided on 21-09-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., granted bail to the undertrial Nigerian national subject to very stringent conditions.

The facts of the case are that the police arrested one Naresh Kumar for possessing 13.95 grams of heroin, later during investigation it was revealed that he had purchased this substance from a Nigerian national namely Innocent Oluchukwo, who was eventually arrested too as per FIR registered under Sections 21 & 29 of the NDPS Act, Section 12 of Passport Act, 1967, Section 14 of Foreigners Act 1946, Sections 420, 468, 471 Penal Code, 1860. Aggrieved by which the present bail petition has been filed under Section 439 CrPC.

Counsel for the petitioner Akshay Katoch admitted the nationality being genuine and submitted that the allegations are false and concocted. Counsel for the respondent Nand Lal Thakur relied on prima facie evidence to show the petitioner’s culpability and submitted that if bail be granted, the same should be subject to stringent terms and conditions.

The Court relied on the judgment titled Lachhman Dass v. Resham Chand Kaler, (2018) 3 SCC 187 which stated

 “10. …The law under section 439 Cr.P.C is very clear and in the eye of the law every accused is the same irrespective of their nationality.”

 The Court also relied on another judgment Shokhista v. State, 2005 LawSuit (Del) 1316, wherein High Court observed

“5. …The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. 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. Consequently, I admit the Petitioner to bail on her furnishing a personal bond in the sum of Rs. 20,000/- and a cash deposit of the like amount in lieu of the surety to the satisfaction of the Trial Court. The Petitioner shall not leave the country without prior permission of the trial court and shall deposit her pass-port with the trial court.”

 The Court in light of facts, submissions and observations held that the petitioner is a verified Nigerian national from the Embassy who was found in possession of drug being less than Commercial Quantity but greater than Small Quantity and hence the rigors of Section 37 of NDPS Act shall not apply, still the petitioner is in custody since 05-09-2019. The Court further held that the possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of subject to elaborative and stringent conditions hereunder stated:

a) The petitioner to give security to the concerned Court(s) for attendance. Once the trial begins, the petitioner shall not, in any manner, try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.

 b) The attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).

 c) The petitioner shall deposit his passport, if not already seized by the Police.

 d) The petitioner shall, within thirty days of his release from prison, procure a smart phone, and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the “ON” mode. Before replacing his mobile phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating officer asks him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone without permission of the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned SHO/I.O.

e) The petitioner shall join investigation as and when called by the Investigating Officer or any Superior Officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.

 f) The petitioner shall cooperate with the investigation at all further stages as may be required, and in the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail granted by the present order.

 g) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

 h) In addition to standard modes of processing service of summons, the concerned Court may serve the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C)No. 3/2020, I.A. No. 48461/2020- July 10, 2020].

 i) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.

 j) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.

 k) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable Warrants through SMS/ WhatsApp message/ E-Mail.

 l) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable Warrants to procure the petitioner’s presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

 m) In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner’s failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

 n) The petitioner shall immediately intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, and not later than 10 days from such modification, to the Police Station of this FIR, and also to the concerned Court.

 o) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so.

 p) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.

 q) During the trial’s pendency, if the petitioner repeats the offence or commits any offence where the sentence prescribed is seven years or more, then the State may move an appropriate application for cancellation of this bail.

 The Court while granting bail observed that foreign nationals visit our country for a specific purpose and if they get arraigned as an accused in a criminal case answer does not lie in denying bail but speedy disposal of cases. It was further observed that the solution while dealing with foreign nationals found in substance abuse is in verifying the antecedents of these types of suspects, before approving or granting Visa, and once accused in substance abuse, then revoking the Visa. Synergy of law with technology is the next big thing.

 In view of the above, bail granted and petition disposed off.[Innocent Oluchukwu v. State of Himachal Pradesh, 2020 SCC OnLine HP 1637, decided on 22-09-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gauhati High Court: S. Hukato Swu, J. rejected the petition of the petitioner and refused him bail.

The factual background of the case indicates that the petitioner was arrested in July 2020  based on a complaint lodged by the father of the victims who had alleged that the accused sexually assaulted two minor children aged 13 and 15, on several occasions. The petitioner moved this bail application on technical grounds submitting that the I.O. of the case had prayed for extension of judicial remand for 15 days and accordingly the learned CJM granted the prayer, by which the petitioner/accused was remanded to judicial custody. However, after this, there was no further prayer for extension of judicial remand. Therefore, the petitioner argued that the right of the petitioner accrued under Section 167 of the CrPC and he had the right to be enlarged on bail.

Contentions of the Public Prosecutor:

Public Prosecutor, V. Suokhrie submitted that while the case records were transmitted to this Court for considering of the bail petition, the chargesheet was already submitted before the Special Judge (POCSO) and the right of the accused no longer subsisted. She also submitted that the petitioner/accused was a very influential person, no less than a Director of a Department and could have a lot of influence on the progress of the case if he was enlarged on bail. The offence, as such, was also heinous in nature and there was a provision which requires that matters pertaining to POCSO Act to be disposed of within a period of one year. Under such circumstances, granting bail to the petitioner/accused would not be in the interest of the prosecution and hence, she vehemently objected to the consideration of the bail.

Further submission of the prosecution was that the accused and the victim lived in the same vicinity and if the accused was to be released on bail it would jeopardize the mental health of the victims because of the proximity.

The Court viewed this case very seriously and gave more weightage to the submission of the public prosecutor and agreed that offences under the POCSO Act are viewed seriously by the Supreme Court and also the society as a whole due to its frequency. Nevertheless, several steps have and should be taken to see that the menace should be curbed.

The Court while rejecting the bail application of the petitioner opined that the instant case was one where the offence alleged was very unpleasant and needed to be tackled with due consideration to ensure the society doesn’t lose faith in the administration of justice. [Lanu Akum v. State of Nagaland, 2020 SCC OnLine Gau 3982, decided on 23-09-2020]

Case BriefsHigh Courts

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

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

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

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

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

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