Bail

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected a pre-arrest bail application which was filed apprehending arrest registered for offence punishable under sections 341 and 302 read with section 34 IPC.

A suo motu complaint was lodged by office in charge of the police station that at 06.25 am on the day he received a telephonic information that one person suspected to be a cattle lifter was detained by the local people at Sovaram Chow Para where presence of police was urgently required. Having arrived at the spot, complainant found that one Saiful Islam of about 18 years’ of age was lying on the street near Sovaram Chow Para SB school in an alarming condition with several cut wound in his body and the injured was not able to speak anything. The injured was shifted to Mungiakami primary health centre from where he was referred to GBP hospital. The injured succumbed to his injuries in GBP hospital at Agartala on the same day.

During investigation, police recorded the statements of some of the witnesses who witnessed the assault on Saiful Islam and saw his assailants. In the course of investigation, the post mortem examination report of the deceased and other materials were also collected by the investigating officer. On the basis of the incriminating materials collected during investigation, the investigating agency took initiative to arrest the applicant namely, Gagan Debbarma for which he has filed this application under section 438 Cr.P.C seeking protection from arrest and detention.

Mr. R. Datta, P.P. on the other hand contended that a boy of 18 years of age was brutally murdered by a mob on suspicion that he was in the team of cattle lifters and the statements of the eyewitnesses has revealed the name of the present accused petitioner as one of the members of the mob who were found chasing the deceased and killing him. After killing said Saiful Islam, his assailants tried to cause disappearance of evidence by burying his body under earth.

The Court was of the opinion that apart from the gravity of offence, there are other factors which are unfavourable to the accused applicant in this case. A young boy of 18 years was brutally lynched by a mob only on the suspicion that he was a cattle lifter even though no cattle was found in his possession. The eye witness version of some of the witnesses whose statements have been recorded by police in the course of investigation demonstrate that the present applicant was one of the members of the mob who was found chasing and lynching the deceased. The Court further relied on the judgment of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 and Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379 where parameters for granting or refusing the anticipatory bail were mentioned.

The Court resultantly rejected the application for pre arrest bail.[Gagan Debbarma v. State of Tripura, 2021 SCC OnLine Tri 513, decided on 08-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Deepak Kumar Agarwal, J., allowed a bail application which was filed by the applicant for grant of regular bail.

Applicant had been arrested in connection with Crime No.117/2021 for the offence punishable under Sections 376 (2)(cha), 376(3), 506 of IPC and Section 5 (n) / 6(a) and 11/12 of POCSO Act. As per prosecution case, on 28-2-2021, prosecutrix aged about 12 years 13 days along with her family members lodged a report alleging that applicant/accused showed nude video film through his mobile to the prosecutrix and after shutting her mouth took out her slacks and panty, thereafter he took out his own pant and underwear and lied down on her. On seeing her father coming to the spot applicant ran away. The prosecutrix was sent for medical examination. The applicant/accused was arrested on 1-3-2021.

Counsel for the applicant, Mr Arun Barua submitted that neither the prosecutrix nor her parents supported the prosecution case. They were declared hostile. During cross examination nothing came out which supports the prosecution story.

The Court looking at the circumstances was inclined to grant regular bail to the applicant.

The Court further noticed that the Court below had disclosed the name of the prosecutrix, who was a rape victim, in the deposition which was inconsistent with the provision of Section 228A of Indian Penal Code and was in violation of the direction of Supreme Court in the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703. The Court in this regard issued a show cause notice to the effect that why appropriate disciplinary action should not taken against the Presiding Officer.[Mahesh Kushwaha v. State of MP, 2021 SCC OnLine MP 1906 , decided on 05-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application which was filed for grant of regular bail for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act, 1985”).

FIR stated that Sub-Inspector along with other police officials were present at Ataria for routine checking. The applicant was coming from Ataria with a bag. On suspicion, he was apprehended and 430 gram of charas was recovered from his bag.

Counsel for the applicant, Mr Anil Kumar submitted that the applicant had been implicated in this matter; he is a student; no contraband was recovered from his possession; the applicant had no criminal history; mandatory provisions of the Act, 1985 were not complied with.

A.G.A. for the State, Mr Pratiroop Pandey fairly conceded that the applicant had no criminal history but opposed the bail application.

The Court concluded that in terms of Section 2 (xxiii-a) and Section 2 (vii-a) of the Act, 1985, 100 gram of charas was small quantity and greater than one kg of charas was commercial quantity (Entry No.23).

Court further added that Refusal of bail is a restriction on the personal liberty of an individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the investigation is not punishment. The main purpose is manifestly to secure the attendance of the accused.

Court allowed the bail application holding that there was no reason to keep applicant behind the bars for an indefinite period.

[Harish Melkhani v. State of Uttarakhand, 2021 SCC OnLine Utt 1146, decided on 07-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., allowed a bail application which had been filed in connection with Crime No.337/2020 registered by Police Station Hazira Distt. Gwalior for offence punishable under Sections 363, 376 of IPC, Section 3/4 of POCSO Act and Section 3(1)(w)(ii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Counsel for the applicant had submitted that the prosecutrix had turned hostile and she had not supported the prosecution case. State counsel was directed to obtain the DNA test report and the case was adjourned. On 14-09-2021   also, the DNA test report was not   available.On 27-09-2021 this criminal appeal was converted into a miscellaneous criminal case in the light of the judgment passed by the Division Bench of this Court in the case of  Pramod v. State of MP on 22-04-2021 in Cr.A. No.5189/2020. Again on the present date it was submitted that DNA test report has not been received and a letter has been received from FSL, Sagar that “consumables and the standard kit” which is used for conducting DNA test report is not available.

The Court found it unfortunate that prosecution was not serious towards the criminal trial. It relied on the judgment of the Supreme court in Hemudan Nanbha Gadhvi v. State of Gujarat, passed on  28-09-2018  in  Criminal Appeal No.913/2016 wherein it was held that even if the prosecutrix has turned hostile, still an accused can be convicted on the basis of scientific / forensic evidence. DNA rest report is one of the crucial circumstance which may prove the guilt of an accused. Even otherwise, under Section   53-A  of   Cr.P.C.,   DNA  test   is   compulsory.   Under   these circumstances, it is the primary responsibility of the State to ensure uninterrupted supply of “consumables and standard kit” to the RFSL so that DNA test can be conducted without any difficulty.

Taking in consideration the current circumstances of the case the Court directed the Director General of Police to immediately   look   into   the   matter   and   to   ensure uninterrupted supply of “consumables and standard kit” to RFSL, Sagar so that DNA test could be conducted as early as possible.

In the context of the question as to whether the accused can be allowed to languish in jail or not when the prosecution itself is not in a position to provide DNA test report the Court deemed it fit to direct for release the applicant on bail relying on the judgment of Hemudan Nanbha Gadhvi. The Court also reminded the judgment of the Supreme Court in IN   RE:   CONTAGION   OF   COVID   19   VIRUS   IN PRISONS in SUO MOTU W.P. (C) No. 1/2020 where it had directed the States to constitute a   High   Powered   Committee to consider the release of prisoners in order to decongest the prisons.[Deepak Tomar v. State of MP, MCRC-49075 of 2021, decided on 04-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates before the Court:

Shri Rajiv Shrivastava, Counsel for the applicant.

Shri R.K. Awasthi,  Counsel for the State.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has explained the principles governing cancellation of bail and has held that it is necessary that ‘cogent and overwhelming reasons’ are present for the cancellation of bail.

“Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non-conducive to fair trial, making it necessary to cancel the bail.”

Principles governing the cancellation of bail

Daulat Ram v. State of Haryana, (1995) 1 SCC 349

“Rejection of bail in a non¬bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”

Adding to the abovementioned position, the Court, in the present case, said that

“… bail can also be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system.”

What was the case about?

The Court was hearing the case wherein the mother-in-law of the deceased was charged under Sections 304B, 302 read with 120B fter the deceased’s father alleged that, just two months into her marriage with the accused, his daughter died an unnatural death in suspicious circumstances . In these twi months, the accused family members harassed and physically tortured the deceased on the pretext of dowry demands.

After two failed failed attempts of seeking anticipatory bail, the mother-in-law went on a run and was declared an absconder. She continued to evade arrest until Supreme Court granted bail to her younger son i.e. deceased’s brother-in-law.

Taking advantage of this subsequent event and presenting the same as a material change in  circumstance, she filed two petitions before the High Court, seeking quashing of the order that declared her a ‘proclaimed offender’ and further sought the relief of anticipatory bail on the ground of parity.

The Supreme Court noticed that

“… the High   Court   seems   to   have   been primarily swayed by the fact that the Respondent-Accused was ‘co-operating’ with investigation. This is, however, contrary to the record as the Respondent¬Accused remained absconding for more than two years after being declared a proclaimed offender on 23.04.2018. She chose to join investigation only after securing interim bail from the High Court. She kept on hiding from the Investigating Agency as well as Magistrate’s Court till she got protection against arrest from the High Court in the 2nd round of bail proceedings.”

On procedural irregularity in declaring the deceased’s mother-in-law as an absconder

The Court held that even if there was any procedural irregularity in declaring the Respondent-Accused   as an absconder, that by itself was not a justifiable ground to grant pre-arrest bail in a case of grave offence save where the High Court on perusal of case-diary and other material on record is, prima facie, satisfied that it is a case of false or overexaggerated accusation. Such being not the case here, the High Court went on a wrong premise in granting anticipatory bail to the Respondent-Accused.

On ground of parity with the deceased’s brother in law

The allegations in the FIR against the Respondent¬Mother¬in-Law and her younger son are materially different. While some of the allegations against all the family members are common but there are   other specific allegations accusing the Respondent¬ Mother¬in-Law of playing a key role in the alleged offence.

“The conduct of the Respondent¬Accused in absconding for more than two years without any justifiable reason should have weighed in mind while granting her any discretionary relief. These facts put her on a starkly different pedestal than the co0accused with whom she seeks parity.”

Conclusion

“The offence alleged in the instant case is heinous and protrudes our medieval social   structure which   still wails for reforms despite multiple efforts made by Legislation and Judiciary.”

The Court noticed that it has to be borne in mind that the deceased met with a tragic end within three   months of her marriage and a young life came to an abrupt end befor realizing any of her dreams which were grimly shattered.   She having died an unnatural death in her matrimonial home, the Investigating Agency, deserves a free hand to investigate the role of the Respondent-Mother-in-law, if any, in the unnatural and untimely death of her daughter in-law.

[Vipin Kumar Dhir v. State of Punjab,  2021 SCC OnLine SC 854, decided on 04.10.2021]

*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held that,

“… the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are :

  1. The Prosecutor must be given an opportunity to oppose the application for bail; and
  2. There must exist ‘reasonable grounds to believe’ that

(a) the person is not guilty of such an offence; and

(b) he is not likely to commit any offence while on bail.

Important rulings

Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798

Holding that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act, the Court observed,

“7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”.

[…]

10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]

11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.”

Union of India v. Prateek Shukla, (2021) 5 SCC 430

Non-application of mind to the rival submissions and the seriousness of the allegations involving an offence under the NDPS Act by the High Court are grounds for cancellation of bail.

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

“9. … this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

  • nature and gravity of the accusation;

  • severity of the punishment in the event of conviction;

  • danger of the accused absconding or fleeing, if released on bail;

  • character, behaviour, means, position and standing of the accused;

  • likelihood of the offence being repeated;

  • reasonable apprehension of the witnesses being influenced; and

  • danger, of course, of justice being thwarted by grant of bail.”

Mahipal v. Rajesh Kumar @ Polla, (2020) 2 SCC 118

“14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.

[…]

16. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment.”

[Union of India v. Md. Nawaz Khan, 2021 SCC OnLine SC 782, decided on 22.09.2021]

___________________________________________________________

Counsels:

For appellants: SV Raju, Additional Solicitor General

For respondent: Advocate Rakesh Dahiya

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., addressed a matter wherein a mother was cheated of an amount Rs 16,50,000 by a man who assured her that her son will be released on bail in 15 days.

A complaint was filed wherein she stated that her son 20 years of age was in love with a minor girl and an offence was registered against him by invoking relevant provisions of the Penal Code and POCSO Act. She tried to get him released on bail.

Later, she was introduced to the present applicant through some common friends of her son, who assured her to secure the release of her son on bail and the impression given was that his father was a well-known lawyer and he will guarantee that bail is secured in fifteen days. In the moment of desperation, the Complainant allege that, she parted with an amount of Rs 16,50,000/- in total, sometimes in cash and sometimes by way of cheques. However, when her son could not walk free and when inquiries were made with the Applicant, who gave evasive response, she lodged the complaint, which resulted in invocation of Section 420 of the IPC.

Prima facie, the offence was of ‘Cheating’, it seemed that cheating is for the purpose of manipulation of Court proceedings and what had been assured was that the settlement will be worked and the term ‘settlement’ can very well be appreciated in light of the nature of the proceeding.

It is not uncommon feature that when the matter is pending before the particular Court, the parties indulge into transaction under the guise of ‘settlement’ and sometimes it so happens, even without the knowledge of counsel on record, who may prefer to argue the case on its merit. This tendency of guaranteeing the decision to come in favour of one party or the other, amounts to maligning a particular Judge and at large, the institution itself by giving an impression that justice can be bought and the Prosecutors and Judges can be sold.

 For the above-stated, High court held that vexatious attempts are rampant and the same need to be nipped in the bud.

Bench observed that the offence punishable was under Section 420 IPC, the nature of allegations levelled against applicant complainant was duped for an amount on assurance that bail will be sought by effecting ‘settlement’ makes the offence grave and the particular fact disentitled the applicant to be released on bail.

Hence, application was rejected. [Minol Anil Hudda v. State of Maharashtra, Criminal Bail Application no. 920 of 2021, decided on 21-09-2021]

Advocates before the Court:  

Mr A.I.Mookutiar with Mr Adnan A. Mookutiar i/b Mr Sanjay Bhatia for the Applicant.

Ms J.S.Lohokare, APP for the State.

Case BriefsSupreme Court

Supreme Court: In a case where a man was allegedly murdered by his wife and colleague, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has refused to grant bail to the colleague on the ground that he cannot claim parity with the co-accused, i.e. the wife of the deceased, who was granted bail on the ground that she had a child of eleven months with her in jail. The Court noticed that the allegations in the FIR and the material that has emerged from the investigation indicated that a major role has been attributed to him in the murder of the deceased and hence, no bail was warranted.

Three important rulings on principles governing grant of bail

Ram Govind Upadhyay v. Sudharshan Singh, (2002) 3 SCC 598

“Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”

Some of the considerations for grant of bail are:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. nature and gravity of the accusation;
  3. severity of the punishment in the event of conviction;
  4. danger of the accused absconding or fleeing, if released on bail;
  5. character, behaviour, means, position and standing of the accused;
  6. likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
  7. danger, of course, of justice being thwarted by grant of bail.

Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, 2021 (6) SCC 230

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

Read more: “Consent of parties cannot obviate the duty of the High Court to indicate its reasons”; Supreme Court explains the law on Bail

[Mahadev Meena v. Raveen Rathod, 2021 SCC OnLine SC 804, decided on 27.09.2021]

___________________________________________________________________

Counsels:

For appellant: Advocate Chitrangda Rastravara

For first respondent: Senior Advocate Siddhartha Dave

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Experts CornerKapil Madan

Introduction

 

India has been a signatory to the UN Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances, 1971 and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.

The administrative and legislative set-up in the field of narcotics has been put in place in India in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in this regard is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The scheme of the Narcotic Drugs and Psychotropic Substances Act, 1985 trifurcates the substances into three kinds which are as follows:

(i) narcotic drugs;

(ii) psychotropic substances; and

(iii) controlled substances.

The Supreme Court and various High Courts in plethora of judgments have observed that such offences are of extremely heinous nature, as such substances can affect an entire generation of youth.[1] Thus, the Act is framed and interpreted as one of the strictest legislations in the sphere of criminal law as far as grant of bail to the accused is concerned.

Importance of recovery in investigation of offences under NDPS Act

 

It is submitted that “recovery” and “possession” is a vital aspect of investigation under the NDPS Act. This is because the accused is “found” to be in possession of the prohibited substance, Section 54 of the Act gives rise to a presumption of commission of offence and Section 35 of the Act  gives rise to a presumption of culpable mental state.

Therefore, the officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself affects recoveries to be treated as a gospel truth.[2]

Such presumptions against the accused may be necessary however, they also cause grave prejudice to the accused. Moreover, firm belief on the FIR and the information provided by the informant does not rule out the possibility of a person being falsely implicated for commission of offence under the Act.

For instance, in a hypothetical situation, if an accused was never in possession of the alleged contraband, and the same has been planted upon him by the investigation agency, the accused would never be able to prove his innocence at the time when such search, seizure and arrest is being conducted; owing to above-stated presumption which the act itself draws against the accused.

Stringent conditions on bail under the NDPS Act

 

The conditions for bail also differ from the general rule of bail in criminal jurisprudence. Section 37 of the Act (in commercial quantity), two additional preconditions are imposed upon the accused in addition to the ones  prescribed under Code of Criminal Procedure, which are to be satisfied before an accused can be enlarged on bail. Section 37 is reproduced hereinbelow for ease of reference:

 

  1. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

* * *

(b) no person accused of an offence punishable for 3 offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

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

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

It is submitted that such a provision has been inculcated in the Act as there is compelling State interest which is involved in the implementation of the aforementioned Act owing to the very serious  nature of the offences.[3]

 

Safeguards available to the accused under the NDPS Act

It is a settled position in law, that no matter how strict a legislation is intended to be, it is necessary that it envisages some protections, compliances and procedures to be conducted during the implementation of the provisions of the Act, in order to prevent the misuse/abuse  of the penal provisions of any legislation.

The NDPS Act, 1985 being no different, vide Chapter V prescribes certain mandatory procedural compliances which are to be conducted while conducting a search, seizure or arrest of an accused person.

Such provisions which deal with procedural compliances shall be discussed and deliberated upon in detail hereinbelow:

  1. Section 41 of the NDPS Act, 1985

 

Section 41 of the Act deals in detail with the power to issue a warrant for a search and seizure. Section 41 is reproduced hereinbelow for ready reference:

  1. Power to issue warrant and authorisation.— (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed.

(2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces to be empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42.

A bare perusal of the abovementioned provision shall make it clear that:

(a) Section 41(1) deals with the power of the Magistrate to issue the warrant, to conduct a search.

(b) Section 41(2) enshrines similar power to a gazetted officer of the departments mentioned therein or any other officer with the authorisation of such gazetted officer to conduct a search.

(c) The Magistrate or the gazetted officer as the case may be  prior to taking any action under the captioned provision of the Act must ensure that they have a reason to believe that an offence under this Act has been committed.

Further with regard to the authorisation of the gazetted officer which finds mention in Section 41(2), the Supreme Court in T. Thomson v. State of Kerala[4] has held that such  authorisation under Section 41(2) is not required when the gazetted officer is himself conducting the search and is only required in case where the search is to be conducted by a subordinate  to conduct the search on his behalf.

 

2. Section 42 of the NDPS Act, 1985

 

Section 42 of the Act empowers a gazetted officer or his subordinate mentioned under Section 41(2) to conduct search, seizure and arrest without warrant or authorisation. The captioned section is reproduced hereinbelow for ready reference:

 

  1. Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

The provision reproduced above may be understood in following manner:

(a) The above provision pertains only to the search of buildings conveyances and enclosed places.[5]

(b) Officer empowered under Section 41(2)  having reasonable belief owing  receipt of an information or from his personal knowledge regarding commission of an offence under the Act has a right to conduct search in the manner prescribed in the provision after recording the information received in writing and obtaining  authorisation in the manner prescribed under the Act.

(c) If the officer has reason to believe that an authorisation cannot be obtained as same would lead to affording of an opportunity to accused to conceal material evidences, the officer may conduct search without authorisation after duly recording such reasons to believe.

(d) Information received or reasons to believe for not obtaining an authorisation must be sent to a designated senior officer within 72 hours of recording the same.

The Supreme Court at numerous occasions has held the following with regard to Section 42 of the Act:

(a) Compliances under Section 42 of the Act  are mandatory in nature.[6]

(b) Non-compliance with the conditions contained therein can lead to serious repercussions such as vitiation of the search conducted and the trial held. [7]

(c) The purpose of this provision is to provide due protection to a suspect against false implication.[8]

 

3. Section 43 of the NDPS Act, 1985

 

Section 43 of the Act prescribes the procedure which shall be followed while conducting a search in a public place. The provision is reproduced hereinbelow for ready reference:

 

  1. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may—

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

With regards to the provision reproduced above it is pertinent to note the following:

(a)  The above provision pertains only to the search of “public place” which are defined under the provision.[9]

(b) Unlike Section 42, under the captioned provision does not make it mandatory for the officer conducting the search in “public place”  to record the satisfaction or reasons to believe prior to conduct of search of a public place.[10]

 

4. Section 50 of the NDPS Act

 

Section 50 of the Act specifies the conditions under which the search of a person may be conducted. The provision is reproduced hereinbelow for ease of reference:

  1. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).

 

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

 

(4) No female shall be searched by anyone excepting a female.

 

(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.

 

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

 

 

It is submitted that scope of the provision reproduced above is limited  and it is only applicable in the instances wherein recovery of contraband has been effected as a consequence of body search and thus such a provision shall not be applicable if the recovery has been affected from a bag or any other belonging which the person was separately carrying.[11]

Non-compliance and its impact on bail

All the statutory compliances which have been discussed above are mandatory in nature. Purpose of these compliances is to ensure that a person is not falsely implicated and he has a fair opportunity in order to defend himself. Further recently Kerala High Court in Sarath v. State of Kerala[12] have held that non-compliance with the mandatory procedure for search, seizure and arrest in the manner as  envisaged in the Act results in  vitiation of such search and such factor can be considered at the stage of investigation in order to grant bail. So, if an accused can prove that the search and seizure conducted upon him was not in consonance or compliance with the procedure prescribed under the Act, the accused shall be eligible for grant of bail.

Thus, if a search, seizure or arrest of a person is conducted in neglect of the compliances as prescribed under the Act, and a person can show sufficient proof of the same, then such non-compliance can act as a mitigating factor against the stringent conditions of bail as imposed under the Act.

However, the onus to prove that there was grave negligence on the part of authorities in observing the compliances under the Act also lies on the accused and the court shall always presume that the authorities have complied.  It is also pertinent to note that till date the courts have failed to define the extent or manner in which the non-compliance on the part of authorities need to be proven in order to make a case for grant of bail and this is an issue on which further clarity is warranted.

Conclusion

In the view above, it is safe to say that under NDPS Act, 1985, the State has compelling interest to safeguard the society from the drug menace and as such the Act provides for stringent bail conditions and reverse presumption against the accused. At the same time, the Act also provides for procedural safeguards qua the search, seizure and arrest non-compliance of which seriously impinges the case of the prosecution and vitiates the prosecution initiated under the NDPS Act.

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

††  Senior Associate, KMA Attorneys.

†††  Senior Associate, KMA Attorneys.

[1] Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.

[2] Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120.

[3] Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, 40.

[4] (2002) 9 SCC 618.

[5] Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608.

[6] M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.

[7] Chhunna v. State of M.P., (2002) 9 SCC 363.

[8] Kishan Chand v. State of Haryana, (2013) 2 SCC 502.

[9] M. Prabhulal case, (2003) 8 SCC 449.

[10] State of Haryana v. Jarnail Singh, (2004) 5 SCC 188.

[11] Jarnail Singh v. State of Punjab, (2011) 3 SCC 521.

[12] 2021 SCC OnLine Ker 2840.

Case BriefsHigh Courts

Kerala High Court: K.Haripal, J., granted bail to the accused involved in post poll murder case of a Muslim League member. The Bench opined,

“No doubt, the allegations against the accused are very grave. Still, so long as the final report is laid, it is not in the interest of justice, unless overwhelming reasons are made out, to keep the suspects in custody.”

 The instant case dealt with post poll murder that was a culmination of political rivalry between the activists of the Communist Party of India (CPI (M)) and rival political group i.e., Indian Union Muslim League. It had come out that there were some clashes between the two groups, later, while the deceased was moving on his motor cycle on the eve of the last Assembly elections, a gang of persons, including the petitioners intercepted and attacked him with dangerous weapons; and country made bombs were also hurled at him. The petitioners were implicated for causing death of one member of the Muslim League and severely injuring one other member (brother of the deceased).

The Petitioners who were 10 in number were booked under Sections 143, 147, 148, 302, 341, 323, 324, 326, 307 read with 149 of the Penal Code, 1860 and also under Sections 3 and 5 of the Explosive Substances Act and Sections 25(1)(B)(b) and 27(1) of the Arms Act. Noticeably, one of the accused had committed suicide, another absconded and the rest had approached the Court for seeking their release on bail.

Noticing that the total number of sessions cases pending in the Thakassery division was 5498, in which number of murder cases where custodial trial was intended was 8, the Bench opined that the Sessions Courts in that division were very heavy as Thalassery was a hub of political rivalry and clashes. Hence, considering that huge number of sessions cases were pending in the courts, the Bench opined,

“In the circumstances, it is unlikely that the trial of the case will be able to be taken up in the near future. That would result in protraction of trial and indefinite detention of the petitioners in custody. Such a pre-trial detention is not expedient nor in public interest.”

 Moreover, considering the guidelines issued by the Supreme Court for easing the crowd in prisons during to Covid pandemic, the Bench favoured the bail application of the petitioners. Rejecting the apprehensions of the prosecution that if released the accused may influence prosecution witnesses, the Bench stated that since all the material witnesses were members or sympathisers of the Indian Union Muslim League, rival political fraction of the accused, normally, such witnesses were not susceptible to any kind of influence, that might be exerted by the accused in the event of their release on bail.

Accordingly, the Bench held that the accused can be detained in custody indefinitely only if very strong circumstances are made out. The bail application was allowed. [Shinos.K.K v. State of Kerala, 2021 SCC OnLine Ker 3449, decided on 13-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For The Accused: Sr. Advocate P.Vijaya Bhanu, Advocate K.Viswan, Advocate M.Revikrishnan, Advocate D.Arun Bose

For The State Of Kerala: Senior Public Prosecutor Sreeja V. and Senior Public Prosecutor Renjith T.R.

For Respondent: Advocate C.K.Sreedharan and Advocate Sunny Mathew

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected a bail application which had been filed by accused petitioner for granting pre arrest bail to him under Section 438, CrPC. The petitioner had been booked for offence punishable under Section 409, IPC. He was alleged to have made fictitious salary bills to the tune of Rs 5,61,302/- in his department and drawing the same from government treasury he had got the entire amount of money transferred to his own bank account.

After the detection of the offence, the Deputy Inspector General of Police (HGS), A.D. Nagar police station, Agartala lodged the FIR with the Officer in Charge of A.D. Nagar police station on the basis of which the case was registered and investigation was taken up. Apprehending arrest, the petitioner had approached the Court and his counsel, Mr A.K. Pal submitted that despite being innocent, petitioner has returned the entire sum allegedly defrauded by him to his department by withdrawing the same from his bank account and that no purpose of investigation will be served by his arrest and detention.

Mr R. Datta, P.P on the other hand contended that in all likelihood, the petitioner alone would not have been able to commit such a crime. His arrest and detention was, therefore, necessary to book his associates. He further argued that the petitioner had defalcated huge amount of money of his own department by making fictitious salary bills. Simply for the reason that he has returned the money, his offence does not get extinguished.

The Court was of the opinion that nature of allegations was serious and materials collected by the investigating agency have made out a good prima facie case against the accused petitioner. The Court noted that without assistance of others, petitioner would not have been able to commit the offence alone. Therefore, his custodial interrogation may be necessary to book his associates.

The Court stated that the essential parameters for consideration of bail are the nature of offence, the punishment thereto, possibility of his tempering with the prosecution evidence in case of his release on bail, likelihood of his fleeing away from the jurisdiction of the court etc., and believed that in the given circumstances the extra ordinary relief available under Section 438 CrPC cannot be given to the accused petitioner. The Court thus, rejected the bail application.[Jayanta Ghosh v. State of Tripura, 2021 SCC OnLine Tri 447, decided on 03-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decided a bail matter wherein the husband suspicioned to have instigated the wife to commit suicide.

In the instant petition, the petitioner sought bail under Sections 304B, 498A, 34 Penal Code, 1860 and 4 of the Dowry Prohibition Act.

Petitioner’s counsel contended that in the FIR and even in the statements recorded under Sections 161 CrPC and 164, of the father of the deceased, who was the complainant and maker of the FIR, allegations if any have been levelled against the mother and sister of the petitioner and not against the petitioner.

Both the mother and sister were granted anticipatory bail.

Further, merely because just before the death, the petitioner and the deceased spoke on the mobile phone, it cannot be said to raise a suspicion that the petitioner instigated the deceased to commit suicide.

There was no material to show that soon before the death of the deceased, the petitioner subjected the deceased to cruelty for the demand of dowry.

APP for the State submitted that, the conduct of the petitioner by making a phone call to the deceased soon before she committed suicide itself shows the conflict going on between the petitioner and the deceased which instigated the deceased to commit suicide.

On perusal of the Complainant’s allegations even in the statement under Section 161 CrPC which was recorded after 17 days of the death of the deceased noted the demand of dowry at the time of marriage, however thereafter the principal allegations were that in-laws retained jewellry and articles given in shagun and did not return the same, that brother-in law of the deceased used to ask the deceased to vacate the house and the mother-in law used to ask for the rent from the deceased.

Prosecution claimed that the last call from the petitioner to the deceased instigated her to commit suicide, for which there was no evidence. It could be to persuade not to take any extreme step, because immediately thereafter the petitioner made a call to the complainant informing him that she has locked from inside.

In respect of the allegation that the petitioner and his family members used to harass her for dowry due to which, she was compelled to commit suicide, no specific allegation has been stated as to what was the demand of dowry after marriage except what was demanded at the time of marriage.

In view of the evidence collected against the petitioner, Court granted bail to the petitioner.

Hence, the petition was disposed of. [Amit Sharma v. State (Govt. of NCT of Delhi), 2021 SCC OnLine Del 4120, decided on 24-8-2021]

Advocates before the Court:

For the petitioner: Pradeep Teotia, Advocate

For the Respondent: Tarang Srivastava, APP for the State.

Ravi Shankar Kumar, Advocate for the complainant.

Case BriefsHigh Courts

Gauhati High Court: Ajit Borthakur, J., granted bail to an IIT student accused of raping his junior. The Bench stated,

“Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

The instant petition was filed by the accused, namely Utsav Kadam praying for grant of bail in connection with a rape case pending before the Addl. Sessions Judge. The accused was a youngster aged about 21 years and was a student of B. Tech Pre-final year of Indian Institute of Technology (‘I.I.T.’), Guwahati in chemical engineering.

The case against the accused was that on 28-03-2021 at around 9 p.m., the accused lured the informant/victim female student of the same educational institution to Aksara School premises, in the pretext of discussing about her responsibility as the Joint Secretary of the Finance and Economic Club of the students of the I.I.T., Guwahati and after making her unconscious, by forcibly administering alcohol raped her. The victim regained her consciousness at around 5 a.m., the next morning at Guwahati Medical College and Hospital, where she underwent treatment and forensic examination etc.

The petitioner contended that he had been in judicial custody for about 120 days in connection with the case, which was entirely based on assumption of commission of the offence of rape without any credible evidence. Therefore, it was urged by the petitioner that as the investigation had already been completed and as there was no chance of him jumping the course of justice in any manner, being a student of I.I.T., Guwahati, further continuation of his detention for the purpose of trial may not be warranted and that would amount to causing further damage to his brilliant academic pursuit.

While strongly opposing the bail application, Mr D. Das, counsel for the State contended that allegations made in detail by the victim girl, who was a student of 2nd year B. Tech Chemical Engineering of I.I.T., Guwahati, prima facie established a clear case in favour of the victim girl. Therefore, if liberty of bail was granted to the accused, the trial of the case was certain to be hampered, which may occasion gross injustice to the victim.

On hearing both sides and after considering relevant documents, i.e. FIR, medical report,  statements under Sections 161 and 164 Criminal Procedure Code, 1973, the contents of the charge-sheet and the Fact-Finding Committee Report etc., the Bench opined that there was a  prima facie case as alleged against the accused petitioner. However, as the investigation in the case was completed and both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only the Bench was of the view that continuation of detention of the accused was not necessary.

Also, the Court stated that there was no possibility of the accused tampering with their evidence or influencing them directly or indirectly, if released on bail. Hence, the accused was directed to be released on bail of Rs. 30,000 with two sureties of the like amount.[Utsav Kadam v. State of Assam, Bail Appln. No. 1623 of 2021, decided on 13-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Advocate for the Petitioner: Mr. K N Choudhury

Advocate for the Respondent: PP, Assam

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. while addressing a bail application of an accused expressed that,

“A criminal conspiracy is generally hatched in secrecy, and it is difficult to obtain direct evidence.”

Instant bail application was filed to seek bail in a case filed under Sections 302, 201, 120-B and 34 of the Penal Code, 1860 during the pendency of the trial.

Factual Matrix 

Complainant who was the friend of the deceased lodged the FIR against the co-accused Shamshad (husband of present applicant Aysha Khatoon) for the offence under Section 364 of Penal Code, 1860 to the effect that the co-accused who was a Muslim by caste and already married had lured and masquerade the deceased 5 years ago and solemnized second marriage with her.

Thereafter, the deceased and her daughter started residing with him.

Deceased had informed the complainant about the torture and harassment along with the threat that co-accused used to subject her to due to her being aware of the first marriage of the co-accused.

Co-accused had confessed his guilt before the police wherein he confessed that the deceased resided with him under a live-in relationship, and he used to bear all the expenses of both the deceased.

Further, he added that co-accused-Shamshad also stated that the deceased was a very high ambitious lady and also spend a lot of money and was leading a luxurious life and when he tried to stop her from doing so, she started squabbling with him.

On an intervening night, the deceased started quarreling with co-accused and demanded money, then he strangulated the victim to death and also killed her daughter (second deceased) by putting the pillow on her face.

The co-accused even confessed that the dead bodies of both the deceased were hidden by him on the floor of the L.E.D room of his house. Police recovered the skeleton and other parts of the bodies in a decomposed condition.

Analysis, Law and Decision

 High Court noted the fact that it was a brutal and heinous double murder case, in which a helpless mother, who blindly trusted upon the co-accused, Shamshad and living with him for the last 5 years and her little daughter had been flagitiously killed and their dead bodies had been hid by the co-accused Shamshad with the help of his brother-in-law in the floor of the room.

“Deceased would never have imagined that the place where they lived would become their graveyard.”

Bench noted the fact that the dead bodies of both the deceased had been buried by the co-accused to destroy the evidence.

Further, the High Court asserted that it is well settled that a man may tell a lie, but circumstances do not.

Hence, in view of the above background, the innocence of the applicant could not be adjudged at the pre-trial stage.

Therefore, while rejecting the bail application, Bench concluded stating that,

 “…trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led uninfluenced by anything expressed in this order.”[Aysha Khatoon v. State of U.P., 2021 SCC OnLine All 548, decided on 16-08-2021]

Advocates before the Court:

Counsel for Applicant:- Yogendra Pal Singh, Avnish Kumar Srivastava

Counsel for Opposite Party:- G.A.

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjeev Kumar, J., refused to quash trial against the petitioner who had been facing trial for conspiring against one Sajjad Ahmad Bazaz-detenue which led to the disappearance of the detenue from the custody of the BSF authorities. The Bench, however, allowed the bail application of the petitioner.

The instant quashment petition was filed by the petitioner to challenge order passed by the Additional Sessions Judge, whereby charges under Sections 302, 344, 363 and 120-B read with Section 109 RPC had been framed against the petitioner. The petitioner had also sought quashment of the trial commenced pursuant to the impugned charge-sheet, pending adjudication before the Trial Court and had additionally sought for his enlargement on bail.

Background

Briefly stated facts of the case were that in the year 1991, on mere suspicion of involvement of the petitioner in militancy related activities, the petitioner was arrested by 30th Bn Border Security Force and was kept in illegal captivity for almost two and half years and it was in the year 1993 he was let off by the 30th Bn BSF. During the period of captivity, the petitioner was made to accompany the personnel of BSF under the command of Deputy Commandant, Dilip Singh Rathore, which cordoned off the house of complainant for search operation to look for one Sajjad Ahmad Bazaz, who, on being identified by the petitioner, was arrested by the BSF authorities and taken in custody.

Since the whereabouts of the detenue-Sajjad Ahmad Bazaz could not be known despite efforts and he was last seen with and picked up by BSF personnel, a case was registered against them. The investigation was conducted and the petitioner was also roped in by the aid of Section 120-B RPC. However, in view of the fact that the valley of Kashmir was declared as disturbed area under Section 3 of the Armed Forces (Special Powers) Act, 1958, prosecution against accused Dilip Singh Rathore and other personnel of BSF could only be instituted with the previous sanction of the central government. Noticeably, the Government of India refused to grant sanction for prosecution.

Later on, the petitioner was arrested. The petitioner urged that on 12-12-2019, after a gap of about 14 years since the prosecution, and in the absence of petitioner, charge was framed against him for commission of offences punishable under Section 302, 344, 364, 348, 201 and 120-B RPC. The petitioner claimed that mere accompanying the Deputy Commandant, and other personnel of BSF during the search operation in which detenue Sajjad Ahmad Bazaz was arrested and thereafter he could not be found dead or alive, could not make him liable for his disappearance and suspected killing by the BSF personnel.

 Observations and Analysis

Observing that there was some pervious enmity between the petitioner and the detenue with regard to some payment of money and that it was at the instance of the petitioner, who was an informer of the security agencies, the residential house of the detenue was cordoned off and the detenue was picked up on the identification of the petitioner, the Bench opined that the circumstances in which the occurrence had happened do lend support to the argument of respondents that the petitioner had conspired in the matter, which ultimately led to the disappearance of the detenue from the custody of the BSF authorities.

Reliance was placed by the Court on the decision of the Supreme Court in the case of K.R.Purshotham v. State of Kerala, (2005) 12 SCC 631, wherein it had been held that, “in most of the cases it is not possible to prove agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to the conclusion and inference of an agreement between the two or more persons to commit offence.”

Findings and decision

In the backdrop of above, the Bench held that there was sufficient material for proceeding against the petitioner for offences with which he had been charged and it was not the case where the charges were required to be quashed and challan dismissed. For the foregoing reasoning, the Bench refused to interfere with the ongoing trial against the petitioner and dismissed the petition for being devoid of any merit.

On the matter of bail, the Bench stated that undoubtedly the charges against the petitioner were serious but the Court could not lose sight of the fact that the prime accused in the disappearance/killing of the detenue, namely, Dilip Singh Rathore had been let off and held not guilty by the BSF Court. Government of India, too, had declined to grant sanction for his prosecution to the Crime Branch. Hence, noticing that the main culprit, who had allegedly caused disappearance of the detenue, had been let off and was a free man and the petitioner was facing trial, the Bench held that the petitioner, who was a married person and had children to support, need not be kept in incarceration, more so when his presence during trial can be ensured by stringent terms and conditions.

Accordingly, the petitioner was directed to be released from custody subject to furnishing of bail bond in the amount of Rs.1.00 lakh and two local sureties of the same amount to the satisfaction of the Trial Court.[Azad Ahmed Mir v. UT of J&K, 2021 SCC OnLine J&K 584, decided on 16-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Sr. Advocate R.A.Jan and Advocate Taha Khalil

For the UT of J&K: Sr. Advocate Mohsin Qadri, Advocate Mohammad Tahseen, Sr. Advocate Z.A.Qureshi and Advocate Razia

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J., expressed that,

“Little girls are worshiped in our country, but the cases of pedophilia are increasing.”

 In the present application, applicant who was involved in a Case under Sections 323, 376(2)(1), 452 and 506 Penal Code, 1860, and Sections 3,4 of Protection of Children from Sexual Offences Act, sought enlargement on bail during the pendency of trial.

Informant had lodged FIR against the applicant alleging that victim who was aged 13 years was residing with her and was alone in the house for doing some house-hold work and all the family members had gone to agricultural field for cutting fodder.

Taking the advantage of the situation, applicant forcibly entered into the house of the informant and threatening to kill the victim, she was dragged inside the room by grabbing her hair, and forcibly committed rape upon the victim.

Suddenly the informant, her son and one Magan came to the house and knocked on the door, but when they entered the house, they saw the victim lying unconscious in a naked condition and the applicant tried to flee away by climbing the wall but was caught. When the victim gained consciousness, she narrated the whole incident and thereafter, police was informed.

Analysis, Law and Decision

High Court found that the applicant already had a criminal history.

In the opinion of the doctor, who conducted the medical examination of the victim, sign of violence was seen and sexual violence could not be ruled out.

“The offence of committing rape upon a minor child is heinous in nature.”

 In the Supreme Court decision of Neeru Yadav v. State of U.P., (2016) 15 SCC 422, criminal antecedents of the accused cannot be ignored while dealing bail application, discretionary powers of Courts to grant bail must be exercised in a judicious manner in case of a habitual offender. The said judgment was followed in a recent Supreme Court decision in Sudha Singh v. State of U.P., (2021) 4 SCC 781.

Bench observed that in the present matter, a small innocent girl has been raped, who does not understand its meaning.

Victim in the instant case, suffers from psychological effects of embarrassment, disgust, depression, guilt and even suicidal tendencies. Many cases go unreported.

The victim/female small child experience sexual abuse once tend to be more vulnerable to abuse in adult life. Healing is slow and systematic. In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system. This is the time to strictly stop this kind of crime. 

In view of the above background, bail was rejected. [Jasman Singh v. State of U.P., Criminal Misc Bail Application No. 1665 of 2021, decided on 17-08-2021]

Advocates before the Court:

Counsel for the Applicant: Bhagwan Das

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., dismissed a bail application wherein the applicant was implicated for offence punishable under Sections 376, 376(2)(N), 366 of the Penal Code, 1860 and under Sections 3, 4,5-I, 6 of the Prevention of Children from Sexual Act.

The allegation against the applicant was that he committed rape on the prosecutrix on the pretext of marriage.

Counsel for the applicant, Mr Umesh Sharma submitted that the applicant and the prosecutrix had an affair since last around two years and both of them were students. It was further submitted that the prosecutrix entered into physical relationship with the applicant on her own free will as she is aged around 21 years and had falsely stated that the incident had taken place around three years ago, only under the pressure of prosecutrix’ family members. It was further submitted that the parents of the prosecutrix and the applicant were opposed to their marriage as both of them were from a different religion as the applicant was a Hindu whereas the prosecutrix was a Muslim.

Counsel for the respondent/State, Mr S.R. Saxena submitted that no case for grant of bail is made out as the applicant had repeatedly committed rape on the prosecutrix on the pretext of marriage since October 2018 and subsequently he refused to marry her and informed her that his marriage was fixed to some other place and hence he cannot marry her as a result of which led the prosecutrix to attempt to commit suicide by consuming phenyl and this fact was also disclosed in her dying declaration but fortunately she survived.

The Court also after perusal of the records was of the view that it was not a fit case for grant of bail as apparently, the applicant had allured the prosecutrix to enter into a physical relationship on the pretext of marriage despite knowing fully well that both of them were from a different religion.

The Court opined that barring some exceptions, India are a conservative society, it has not yet reached such level (advance or lower) of civilization where unmarried girls, regardless of their religion, indulge in carnal activities with boys just for the fun of it, unless the same is backed by some future promise/assurance of marriage and to prove her point, it is not necessary every time for a victim to try to commit suicide as in the present case.

This Court was also of the considered opinion that a boy who is entering into a physical relationship with a lass must realize that his actions have consequences and should be ready to face the same as it is the girl who is always at the receiving end because it is she who runs the risk of being pregnant and also her ignominy in the society, if her relationship is disclosed. You just cannot plead consent on the part of the prosecutrix and laugh all the way to your home.

The Court dismissed the bail application stating that the action of the prosecutrix of committing suicide shows that she was serious about the relationship and it cannot be said that she entered into the relationship only for enjoyment.[Abhishek Chouhan v. State of M.P., 2021 SCC OnLine MP 1475, decided on 03-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: S. K Panigrahi, J., rejected bail application and remarked

“There is no answer as to why suicides occur because it is impossible to ever fully comprehend or analyze what goes on inside a person’s mind. Suicidal ideation and behaviors in human beings are complex and multifaceted.”

The present petitioner, who is in custody, filed the instant bail application under Section 439 Criminal Procedure Code i.e. CrPC. as the complainant Artatrana Sahu lodged an FIR stating that his daughter Puspanjali (now deceased) had left her home on 14-06-2020 for nature’s call at a nearby river but did not return. The body of the deceased was found hanging from a tree on the said river bank. On investigation, the death was opined to be suicidal in nature and three numbers were found on the phone to be frequently contacted one of them being the petitioner. Acting purely on suspicion and in the light of uncovering of facts from a few people of the area, it was suspected that the petitioner and the deceased had probably shared a relationship. Thereafter, the present petitioner was arrested and forwarded to judicial custody on 06-07-2020 for allegedly abetting the suicide of the deceased.

Counsel for the petitioner submitted that there is no prima facie case made out against the present petitioner and in the absence of any direct evidence to the contrary the petitioner is liable to be released on bail.

The Court observed that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by the Supreme Court and by every High Court in the country. Yet, occasionally there is necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

The Court further observed that the offence of abetment to suicide under Section 306 of IPC has twin essential ingredients:

  • a person commits suicide
  • Such suicide was abetted by the accused.

This offence involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. To hold a person liable for abetting suicide, active role is required which can be described as instigating or aiding in doing thing. A person can be said to have abetted in doing of a thing, who “instigates” any person to do that thing. The word “instigate” is not defined in IPC.

In Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 instigation was held as to goad, urge forward, provoke, incite or encourage to do “an act”. It was further observed that to satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, “instigation” may have to be inferred.

A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. It is only where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, “instigation” may be inferred.

The Court thus held “although some witnesses seem to suggest a love relationship between the petitioner and deceased, the nature of evidence that has been forthcoming does not meet the standards required to prove that the petitioner abetted the suicide of the accused. The fact as to what the degree of intimacy and affinity of the petitioner and deceased shared is a matter that can only be unearthed at the stage of trial. At this stage, for the purpose of this application, the same does not need to be gone into.” 

In view of the above, bail was rejected.[Safi v. State of Orissa, BLAPL No.3623 of 2021, decided on 11-08-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

For Petitioner: Ms. R.L. Patnaik, S.K. Panda, K. Panda, A.K. Jena, R.C. Patnaik & A. Biswal

For Opposite Party: Mr Manoj Kumar Mohanty

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J. granted bail to a young mother of two minor children, who was booked in connection with the murder of her tutor with whom she had an illicit relationship.

Facts

On 10-3-2020, police received information that one RK had been admitted to LBS Hospital. By the time police reached the hospital, RK had died during treatment. As per the prosecution, the deceased was a home tutor engaged by the petitioner for teaching her as she was preparing for Central Teachers Eligibility Test. During this period, the petitioner and the deceased developed physical intimacy. This fact came to the knowledge of petitioner’s husband, who tried to persuade the deceased to call off the relationship but the deceased was adamant to continue relationship with the petitioner. The deceased even threatened the petitioner that he had their video captured, and asked her to continue their relationship otherwise he will make the video public.

As per the prosecution, on 9-3-2020, the petitioner made a phone call to the deceased and asked him to come to a flat in a certain apartment building which belonged to one of the co-accused. On reaching the said flat, three co-accused persons gave beating to the deceased. Later, the deceased succumbed to injuries in the hospital.

Contentions          

The petitioner filed the instant petition for bail under Section 439 CrPC submitting that she was a young lady aged 32 years and mother of two minor children. She merely made a phone call to the deceased and after dropping him near the apartment building, she went away to her husband’s chemist shop. She only dropped the deceased near the apartment building as her husband wanted to talk to the deceased and take back the video so that she may not be maligned in the society. The petitioner claimed that she was unaware of what transpired in the flat, and she had no involvement in murder of the deceased.

Per contra, the prosecution vehemently opposed the bail petition alleging that the petitioner was a part of the conspiracy.

Decision

Looking firstly at antecedents of the petitioner, the High Court found that as per the status report, she had no previous involvement.

The Court noted the fact that the petitioner was a young mother of two minor children. She was involved in illicit relationship with her tutor. She wanted back the video recordings made by the deceased so as to save her image in the society and for that purpose she narrated entire facts to her husband. On day of the incident, the petitioner dropped the deceased near the apartment building from where he went to the flat where the crime occurred. In Court’s opinion, nothing appeared on record to show that the petitioner at any point of time had any knowledge about what would be done with the deceased by other co-accused. The only role assigned to the petitioner was that she dropped the deceased near the apartment building. Even otherwise, there was no communication between the petitioner and other co-accused from the time she dropped the deceased near the apartment till the time her husband came back to the chemist shop.

Looking into entire facts and circumstances of the case, and the role attributed to the petitioner, and also that she is a young mother of two minor children, her husband already being in judicial custody, the Court allowed the petition and admitted the petitioner to bail on furnishing a personal bond in the sum of Rs 50,000 with one surety in the like amount to the satisfaction the trial court. [Jyoti v. State (NCT of Delhi), 2021 SCC OnLine Del 3902, decided on 4-8-2021]

Advocates before the Court:

For the Petitioner: Mr Jitender Sethi, Advocate with Mr Hemant Gulati, Advocate.

For the Respondent: Ms Rajni Gupta, APP for the State SI

Subhash Kumar, PS Ghazipur.

Case BriefsHigh Courts

Madhya Pradesh High Court: Rajeev Kumar Dubey, J., denied bail to the applicant who was arrested for the offence punishable under Sections 8, 21, 22 of the NDPS Act & Section 5/13 of M.P. Drug Control Act.

The prosecution had submitted that on the information of informant police stopped motor cycle which was being driven by applicant Rajkamal Namdev and co-accused Vikas Gupta was pillion rider and seized 30 bottles of Onerex Cough syrup (100 ml. each) containing codeine phosphate (Narcotic Substance) from their joint possession, which was illegally being carried by them on that bike.

Counsel for the applicant, Mr Vijay Chandra Rai submitted that the applicant has not committed any offence and had falsely been implicated in the offence.

Counsel for the respondent /State, Mr Sunil Gupta submitted that they were not having documents to keep the seized contents in their possession, so looking to the provisions of Section 37 of the NDPS Act, he should not be released on bail.

The Court relied on the Supreme Court judgment in Mohd. Sahabuddin v. State of Assam, (2012) 13 SCC 491. The Court further stated that the Supreme Court in State of Punjab v. Rakesh Kumar, (2019) 2 SCC 466 had relied on in an earlier judgment of Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 where it was held that dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provision of the Act, rules or orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances).

It was made clear that if anyone was found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.

Central government notification dated 18-11-2009 stated that the percentage of a narcotic drug and psychotropic substance shall be inseparable and the whole contraband seized has to be taken into consideration that whether the same falls within the small quantity or commercial quantity or an intermediate quantity which was upheld in Harjit Singh v. State of Punjab, (2011) 4 SCC 441.

The Court also relied on Heera Singh v. Union of India, 2020 SCC Online SC 382 where it was held that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances.

The Court rejected the bail application stating that police seized 30 bottles (100 ml. each) of Onerex Cough syrup containing Codeine Phosphate (manufactured drugs) from the joint possession of applicant & Co-accused so provisions of Section 37 of the N.D.P.S. Act will come into force.[Rajkamal Namdev v. State of M.P., MCRC-25233 of 2021, decided on 02-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.