Bail

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., allowed a bail application and granted bail to the applicant who was accused of committing the offence of sexual assault on a minor victim.

The preliminary question before the High Court was whether the present application was maintainable because according to S.V. Gavan, APP, since the offence alleged was under SC/ST (Prevention of Atrocities) Act, 1989, an appeal would be required to be preferred under Section 14-A of the SC/ST Act.

The Court, however, agreed with the judgments other High Courts cited by Abhijeet A. Desai, counsel for the applicant, wherein it has been held that the Protection of Children from Sexual Offences Act, 2012, being a special enactment and also a subsequent enactment and containing a non obstante clause, the bar created under Section 14-A of the SC/ST Act would not operate.

Then, considering the main plea in the present application, the Court noted that age of the victim was 15 years 4 months and 23 days and that of the applicant was 21 years. The victim was in a friendly relationship with the accused/ On the date of incident, she accompanied the victim to a lodge where they remained for almost 1.5-2 hours. Considering the victim was a minor, the Court noted that any submission as to the consent of the victim is futile.

It was noted that the accused was in custody since 12th November 2019; investigation was complete and chargesheet has been filed. The Court was of the opinion that on merits, there was no prohibition that applicant could not be released on bail. However, to ensure that the victim is kept away from the applicant so she may depose freely, the applicant was directed to give an undertaking that he will not enter into the jurisdiction of Pune City since the victim is a resident of Pune.

As far as the allegations under the SC/ST Act were concerned, except in a statement of the victim recorded under Section 164 CrPC, where she had disclosed that applicant abused her by mentioning her caste, there was no other material to attract the offences under the SC/ST Act. The Court stated that the effect of the statement under Section 164 CrPC and the content therein and its appreciation would be done at the time of trial. It was not the case of the prosecution that the applicant was aware that the victim belongs to scheduled caste and therefore intentionally he assaulted her sexually, being conscious of this fact. Therefore, perusal of the material in the chargesheet did not prima facie attract the provisions contained in the SC/ST Act.

In such view of the matter, the High Court released the applicant on bail, subject to the conditions imposed. [Suraj S. Paithankar v. State of Maharashtra, Bail Application No. 817 of 2020, dated 3-7-2020]    

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has granted bail to former Unitech MD Sanjay Chandra after he told the Court that both his parents, who are 81 years and 78 years of age respectively, have tested positive for Covid-19 and have been hospitalised.

Senior Advocate Mukul Rohatgi, appearing for Chandra, told the Court that

“The applicant has stated that his spouse is presently abroad and has been unable to return due to the lock down. The brother of the applicant, Ajay Chandra, is also in judicial custody.”

Considering the facts and circumstances, the Court said,

“a case for the grant of interim bail has been made out on humanitarian grounds since both the parents of the applicant have tested positive for COVID-19 and having regard to their advanced age.”

The Court, hence, released Chandra on interim bail for a period of thirty days from the date of his actual release, subject to the following conditions:

  • The passport of the applicant shall be deposited with the trial court
  • The applicant shall report on every Sunday before the nearest local police station;
  • The applicant shall furnish bail bonds of Rs 1 lakh to the satisfaction of the trial court; and
  • The applicant shall surrender immediately on the expiry of the period of thirty days specified above.

[Bhupinder Singh v. Unitech Limited, 2020 SCC OnLine SC 559 , order dated 07.07.2020]

Also read

SC to Unitech MD Sanjay Chandra: Deposit Rs. 750 Cr by December-end or stay in jail

Case BriefsHigh Courts

“No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free – free to live without sale of their young flesh to lascivious wealth or commercializing their luscious figures….”

— Justice V.R. Krishna

Orissa High Court: S.K. Panigrahi, J., while addressing a petition observed that,

“…crime of trafficking girls is dehumanizing as well as utterly shameful to our civilized society.”

Accused in the present matter is allegedly notorious for his aplomb in identifying girls and capitalising their distress condition but caught red-handed by police.

Factual Matrix

Inspector of Police, Alok Kumar Jena had received information that Ibrahim Khan and Rukhsar Begaum from District were engaged in regularly trafficking girls from Kolkata and other places and further engage them in sexual exploitation for commercial purposes from which the two persons mentioned derived income.

These girls were forcefully sent to various hotels and lodges where they were subjected to sexual abuse and exploitation.

Raid was conducted on receiving the information.

During the examination of the victims, it was revealed by them that Ibrahim Khan and Ruksar Begum and certain other unknown persons have procured them from Kolkata and on some false pretext of employment in beauty parlors forced them into sexual slavery and prostitution.

Petitioner was forcibly sending them to various hotels and lodges and were arranging customers for such illegal act.

Petitioner herein was acting in concert with aforesaid principal accused by making wide publicity among the prospective customers to be in touch with them for such act.

Ibrahim Khan and Ruksar Begum had confessed that they were running a prostitution racket by forcefully exploiting victims.

Further victims on being rescued were kept in shelter home and the accused persons were apprehended under Section 4 and 5 of the Immoral Trafficking (Prevention) Act read with Sections 370(3), 467, 471 & 120B/34 of Penal Code, 1860. An FIR was filed against the said accused persons.

Court

Bench while perusing the above, stated that girls statement reveals that the accused persons were threatening them to face starvation in case they try to flee from the said house.

Prima facie, it appears to be a complete racket run by the principal accused and his accomplice though the complete picture will emerge from a thorough trial.

Court observed that, despite constitutional dictums and legal provisions, the humanity is still struggling to combat human trafficking.

Bench also added that unfortunately, despite the protection afforded by the Constitution, the stringent laws and large number of treaties and conventions, commercial sexual exploitation with its concomitant human rights abuse is expanding multi-fold.

Such exploitation is now not confined to conventional brothels, but is spreading everywhere including residential areas, hotels, clubs etc. as apparent in the present case.

High Courts of several states have not only recognized the menace of human trafficking but also taken up cases for strengthening the Institutional Machinery and various statutory agencies mandated by various laws.

Heinous Crime

Even if the accused had a limited role in selling the victims or in the prostitution business, no leniency can be shown to him inasmuch as he played a major role in the racket to push the helpless and innocent girls into prostitution.

Supreme Court in its decision of Vishal Jeet v. UOI, (1990) 3 SCC 318, while discussing the evils of prostitution, observed the need for the courts and law enforcement agencies to take stringent action to curb the menace.

Sex Rackets

Kingpins behind the sex rackets exert considerable influence in the area and are bound to intimidate the victims.

Nature of crime is such that grant of bail will only embolden such hardened criminals, who keep evading the law and punishment, to perpetuate such heinous crimes.

Collective Morality of society and markedly skewed legislations

Complex and troubling issue as emerged in the instant case demonstrates a conflict between collective morality of the society and markedly skewed legislations which mismatches the culpability of the participants in questions and the recipient of the services.

There seems to be an all-pervasive puritan, moral, anti-prostitution posture of the Government, but in practice, there is a yawning gap between the law and its enforcement which results in abysmally low conviction rates.

The accused in present case have already been granted bail. Thus the court is constrained to grant bail to the accused in the instant case on the grounds of parity alone.

Hence, in view of the above, present bail application was disposed of. [Panchanan Padhi v. State of Odisha, 2020 SCC OnLine Ori 492 , decided on 29-06-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., dismissed the revision petition filed against the rejection of bail to the accused. The revision petition was filed by the juvenile accused of murdering another child in the washroom of a private school in Gurugram.

Order passed by Principal Magistrate, Juvenile Justice board, Gurugram has been prayed to be set aside which dismissed the application for bail filed by petitioner as well as the Order passed by the Appellate Court, Gurugram.

Rupinder Khosla, Senior Counsel for the petitioner submitted that on perusal of the Order passed by lower Courts the language used by them does not entitle the petitioner concession of bail as the following was observed:

no misplaced sympathy can be shown to a juvenile who has perpetrated the offence like murder.

Further it was argued that, as per Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 a person who is apparently a child alleged to be in conflict with law, be notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person.

Senior counsel for the petitioner has further submitted that in the earlier petition, the CBI has admitted that it has no infrastructure to investigate the case. It is further argued that in the observation home there is overcrowding of children and the petitioner has already lost considerable weight, therefore, the petitioner be released on bail.

State’s Counsel submitted that as per the statement recorded by the probation officer, petitioner’s attitude towards the class was aggressive, he used to remain upset most of the time as he disclosed this fact to his music teacher; he was short-tempered and shouted over children; a low average student in studies; found under the influence of liquor.

Further CBI contended that the petitioner has on his own stated in the Supreme Court that he wants his application to be decided as an adult, there will be no applicability of Section 12 of the Act.

CBI also argued that proper hygiene condition are maintained in the protection home.

CBI adding to its contentions has also argued that considering the nature and gravity of the charge, severity of punishment in the event of conviction and the danger of 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 tampered with and danger of justice being thwarted by grant of bail.

Since petitioner has been facing allegation of committing heinous crime of a 7 year old minor child in a very barbaric manner by cutting his throat and then trying to demolish the evidence, no sympathy should be given.

Counsel for the complainant has also submitted that it is the petitioner’s side, who is not allowing the trial to conclude as they have challenged every order passed by the Courts below.

Bench found it appropriate to not grant bail for the following reasons:

  • Court is not inclined to grant any relief to the petitioner, in view of the order dated 28.02.2019 passed by the Hon’ble Supreme Court, directing that for deciding the bail application, the petitioner be treated as an “Adult”, therefore, there is little scope for this Court to find out whether the petitioner can be granted the relief under Section 12 of the Act.
  • Board and the Appellate Court have passed a detailed order declining the concession of bail to the petitioner in view of the proviso to Section 12(1) of the Act and this Court find no reason to form a different opinion.
  • arguments raised by senior counsel for the petitioner that the petitioner is not kept in a congenial atmosphere at Children’s Home and is facing medical problem, are not proved from the two reports of the Medical Board stating that the petitioner is not facing any serious problem/illness and rather it is noticed that the petitioner is gaining weight.
  • prosecution has cited certain witnesses, who are minors including the sister of the deceased and therefore, possibility of tampering the evidence, cannot be ruled out, at this stage in view of the totality of circumstances and the affidavit filed by the CBI.

Thus, in above view, revision petition was dismissed. [Bholu v. State of Haryana, 2020 SCC OnLine P&H 835 , decided on 30-06-2020]

Case BriefsCOVID 19High Courts

Gujarat High Court: Paresh Upadhyay, J., while addressing a matter with regard to granting bail to the migrant workers who were locked in jails, stated that,

“instead of sending these labourers back to their hometown when they wished to go back due to no money, work and food, they were locked in jails.”

“These migrants are more the victims certainly not criminals.”

Present application was filed for regular bail. He was punishable for the offences under Sections 143, 144, 147, 148, 149, 186, 332, 333, 336, 337, 427 and 188 of Penal Code, 1860 and Section 135(1) of the Gujarat Police Act, Section 3 of Epidemic Act, 1897, Section 51(b) of the Disaster Management Act and Section 3(1) and 3(2)(e) of the Prevention of Damage to Public Property Act.

Advocates on behalf of the applicants submitted that  of the total 33 applicants, 32 are from the State of Jharkhand and one is from the State of West Bengal.

The stated applicants were migrant workers and in the new lockdown they were all without any work, money and food, thus under the said circumstances they wished to go back to their home which led to an untoward incident.

Since 18-05-2020, applicants are in jail.

“…fit case to exercise the discretion to release the applicants on bail, in exercise of powers under Section 439 of the Code of Criminal Procedure, 1973.”

-High Court

Court noted that instead of sending the above-stated labourers back to their home towns when they were out of money, food and work, they were locked up in the jails.

In view of the above, bench said that,

Applicants are more the victims, certainly not the criminals. Thus, the said applicants immediately needs to be set free on furnishing person bond without any conditions.

Thus, the application has been allowed. [Ravi v. State of Gujarat, 2020 SCC OnLine Guj 930, decided on 23-06-2020]

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit, J., granted anticipatory bail to the petitioner accused of committing sexual offence.

Petitioner was accused for the offences under Sections 376, 420 and 506 of Penal Code, 1860 and Section 66-B of Information Technology Act, 2000 and by the present petition seeks bail.

State while opposing the petition submitted that the offences alleged against the petitioner are serious in nature and it would be unsafe for the society if offenders like petitioner is granted bail.

Thus in view of the above Judge of the lower Court had rejected his claim.

Bench on perusal of the petition papers and on consideration of the contentions submitted by the counsels granted anticipatory bail for the following reasons:

  • seriousness alone is not the criteria to deny liberty to the citizen when there is no prima facie case from the side of the State Police;
  • version of the complainant that she was subjected to rape on the false promise of marriage in the given circumstances of the case, is bit difficult to believe at this stage; there is a letter allegedly written by the complainant to the effect that she was ready to withdraw the complaint if a compromise is brought about, especially when the complainant had employed the services of the petitioner since last two years or so; nothing is stated by the complainant as to why she did not approach the Court at the earliest point of time when the petitioner was allegedly forcing her for sexual favours;
  • nothing is mentioned by the complainant as to why she went to her office at night ie., 11.00 p.m.; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;
  • version of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car, even if is assumed to be true, there is no explanation offered for not alerting the police or the public about the conduct of the petitioner

Thus in view of the above, petitioner was granted bail. [Sri Rakesh v. State of Karnataka, Criminal Petition No. 2427 of 2020, decided on 22-06-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J. rejected bail and dismissed the petition.

The facts of the case are that, the petitioner, a driver by profession resident of Haryana was apprehended for alleged possession of 1 Kilogram 008 Grams of opium and was arrested under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Dharampur, District Solan, H.P. and was in judicial custody. The petitioner earlier preferred for regular bail before the Special Judge-III, Solan, which was rejected. Hence, the instant bail petition was filed.

The petitioner was represented by counsel Vivek Sharma and the respondent was represented by counsel R.P. Singh, Raju Ram Rahi and Gaurav Sharma.

It was submitted that petitioner is driver by profession and is in habit of consumption of opium. It was further stated that he has been booked for possession of poppy straw in 2017 but was acquitted of the charges later and has also been found in possession of 15 bottles of country liquor in the same year and was fined Rs 1500. It was further stated that the explanation with respect to source of contraband was also found false.

The Court based on the facts and submissions, observed that the reverse onus is on the petitioner under the NDPS Act, and the balance of convenience is not in his favour.

In the light of given facts and arguments the bail is rejected and petition dismissed. [Ashish v. State of Himachal Pradesh, 2020 SCC OnLine HP 692 , decided on 15-06-2020]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while addressing a petition with regard to release of Tablighis, stated that,

Covid-19 should teach us to care for each other rather than use the arsenal of law.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions.

They defied COVID-19 lockdown norms as were imposed by the Government.

In the norms, religious places were ordered for closure, yet the petitioners stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

There are accusations that its puritanical and revivalist project prepares the ground for islamic radicalization.

Court’s opinion on “Tablighis”

[Categorization can have serious pitfalls]

Bench recorded,

Prof. Upendra Baxi’s remark in his recent essay on “Exodus Constitutionalism” published by The India Forum that “there is, also, no such thing as ‘migrants’ but only persons and groups with distinctively (and often disturbingly) different needs and abilities…”

The above stated helped the Court to see the petitioners as “30 individuals” instead of collectively thingifying them as “Tablighis”.

Justicing has to be an individualized exercise.

Further the Court added that, there are scores of foreign Tablighis who are presently in detention. They hail from different countries. Some of them are women. Quite a few are senior citizens. They are normal human beings. They are now stuck in alien surroundings.

The petitioners came to India propelled by a sense of religious idealism. But their mission went awry.

The stated petitioners are eager to return back to their families and are also willing to admit through affidavits that they had violated the visa conditions and were willing to undertake that they will not enter India for the next ten years.

Entitled to bail?

Offences which the petitioners are alleged to have committed are not akin to those offences for which there are limitations for grant of bail.

The Bench states that there cannot be any objection for granting bail to the petitioners.

Continued incarceration of the petitioners will not serve any purpose. Since the petitioners are foreigners, it would obviously be difficult for them to arrange local sureties.

Thus, petitioners shall be released on their own bond.

Right to return to native country

Bench stated that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.

Court feeling sensitive to the petitioners’ misery in the present COVID-19 times, posed a question, whether it is acting beyond jurisdiction?

To the above, bench stated,

The Hon’ble Chief Justice has allotted the subject of Criminal Original Petition-Bail, Anticipatory Bail Petitions, Criminal Appeal and Criminal Revision Petitions to be dealt with by me. But, in view of my being a Judge of the High Court, I certainly have the inherent power to make such orders as may be necessary to secure the ends of justice.

Failure to respond to the petitioners’ existential horror would amount to judicial abdication.

Of course, the petitioners having violated the visa conditions cannot demand that they must be allowed to return as a matter of right. But then, the authorities cannot arbitrarily deny the said request.

Unjust, Unreasonable and Unfair

Petitioners are willing to bear the cost of transportation. They will coordinate with their embassies and consulates and arrange their return. All that the respondents need to do is to play a facilitatory role. Instead of doing so, if the respondents insist on detaining the petitioners and prosecuting them, it can only be characterized as unreasonable, unjust and unfair.

Thus, in view of the above, Court issues following directions:

  • Petitioners are granted bail.
  • After the petitioners are released on bail, it is open to the authorities to require the petitioners to stay at the special camp earmarked under Section 3(2)(e) r/w 4(2) of the Foreigners Act, 1946.
  • If the petitioners execute appropriate affidavits expressing their regret for having violated the visa conditions, proceedings against them shall be concluded by filing final reports recording the same.
  • It is for the petitioners to coordinate with their respective embassies/consulates and arrange their return to their respective nations. Government of Tamil Nadu or the Government of India will only play a facilitatory role.

[Md Kameual Islam v. State, 2020 SCC OnLine Mad 1171 , decided on 12-06-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., stayed the investigation against the television anchor and journalist Vinod Dua, alleged for spreading rumours and misinformation about the sensitive issue of Delhi Riots and causing hatred and ill-will between the different communities through his web cast on You Tube.

Who filed the present petition?

The petition was filed by Vinod Dua — Journalist and Television Anchor praying for quashing of an FIR registered under Sections 290/505/505(2) of the Penal Code, 1860. Petitioner sought investigation into the said registration of the FIR, as also for violation of his fundamental rights.

Genesis of the matter

Petitioner has a webcast on HW News Network on the YouTube Platform named “The Vinod Dua Show”.

Petitioner’s Stand

Senior Counsel, Vikas Singh submitted that the webcast was made on 11.03.2020 and ran for approximately 12 minutes, comprising two parts, each addressing a different current affairs issue. About 08 minutes of the webcast was in relation to the politics of government formation in the State of Madhya Pradesh in the context of some recent happenings.

As per the allegations contained in FIR, the above mentioned part of the webcast is not subject matter of the FIR.

Second part of about 4 minutes was in relation to the riots that happened in the North-East part of Delhi in February, 2020 and the complainant’s grievance appears to be with what was said in relation to the riots; and that was the subject matter of the complaint made and the FIR registered against the petitioner.

Petitioner’s Counsel relied on the following Supreme Court Judgments:

FIR

FIR records that the petitioner is spreading rumours and misinformation about the sensitive issue of Delhi Riots, which are resulting into causing hatred and ill-will between the different communities.

Respondent’s Stand

Counsel, Piyush Singhal on behalf of respondent 1 submitted that the notice has been issued to YouTube and petitioner has so far not even called for investigation.

Respondent 2’s counsel’s Anil Soni, Ajay Digpaul and Satya Ranjan Swain argued against granting interim relief to the petitioner on the following basis:

  • ingredients of Section 505(2) IPC are made-out on the basis of the allegations in the complaint and in the FIR
  • narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, amounts to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes, which is an offence punishable under Section 505(2), and which is both cognizable and non-bailable;
  • What is stated in the offending narration is merely the petitioner’s ‘opinion’ and not based on any ‘fact’, and that only rumour has been fostered to create enmity;
  • there is no legal basis or precedent for staying investigation or proceedings in an FIR

On Prima Facie view, following aspects emerge:

  • Substantial unexplained delay in filing of the complaint and registration of the FIR: Delay of almost 3 months
  • Petitioner learned about the registration of FIR through social media
  • what the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast ; and to that extent no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR
  • there is no allegation that any adverse consequences, in terms of enmity, hatred or ill-will, much less any violence or breach of peace, occurred as a consequence of the webcast
  • ingredients and gravamen of the offence under section 505(2) do not seem to be made-out as required per Manzar Sayeed Khan Judgment.

Thus, it prima facie appears that the registration of the FIR requires to be examined on the touchstone of the law.

Though petitioner has already been granted an interim protection by Additional Sessions Judge, this Court is of the view that further investigation or proceedings pursuant to the FIR would cause unwarranted and unjustified harassment to the petitioner.

Investigation in the matter arising from the subject FIR is stayed, till the next date of hearing.

Matter to be listed on 23-07-2020. [Vinod Dua v. State (Govt. of NCT of Delhi), 2020 SCC OnLine Del 644 , decided on 10-06-2020]

Case BriefsHigh Courts

Karnataka High Court: While deciding the instant petition, wherein the petitioners have been charged with offences under Sections 14A and 14B of the Foreigners Act, 1946, Section 25 of the Indian Arms Act, 1959 and Section 34 of the Aadhar Act, 2016, K.N. Phaneendra, J., laid down certain guidelines in order to deal with the issues arising due to the prolonged stay of illegal immigrants facing proceedings under the Foreigners Act, 1946. 

As per the facts of the case, the accused persons allegedly migrated from Bangladesh and have been staying in India without passport/ visa or any proper documents provided by the competent authorities. It was also alleged that the accused persons have obtained Aadhar Cards using illegal means. The counsel for the petitioners C. Mohammad Pasha and the Government Pleader, Rohith B.J., both of them submitted that there is no decision that spells out any specific ground upon which bail can be granted to individuals such as the accused persons. They further pointed out that there are no guidelines which have been made to regulate the stay of such persons who have come to India without passport/visa.

Perusing the submissions laid down by both the parties, the Court pointed out that though the instant matter is a simple bail matter, but the issue involved is important enough to for the Court to take notice. The Court pointed out that it is a very difficult task to lay exhaustive guidelines in the matter, but it will nevertheless try to address the ‘grey areas of law’ in the current matter. 

Some of the important guidelines laid down by the Court  are as follows-

  • In case a foreign national is arrested under the provisions of Foreigner’s Act and such individual does not possess passport or visa or possesses expired visa, then immediate proceedings shall begin to deport such individual. The jurisdictional police must right away inform the competent authorities to start the deportation proceedings.
  • If the foreign nationals fail to obtain bail in any criminal case, then they should be kept in normal jail till the disposal of the case.
  • If the foreign nationals are granted bail/ anticipatory bail under and their offences are under the Foreigners Act and other such laws, then such individuals shall be kept in detention centres till the time they are not deported to their mother country.
  • In the event a foreign national ends up being convicted, then they shall be kept in the regular prisons till they serve their sentence. After that they shall be kept in detention centres till the time they are not deported.
  • If the foreign national is acquitted, and their nationality is in dispute before the competent Tribunal, then they shall be kept in detention centres from where they shall be deported, unless they have any right which entitles them to remain in India.
  • The public prosecutors and the defence counsels shall try their best to expeditiously deal with such cases.
  • The Central and State Governments shall take all requisite steps to establish sufficient number of detention centres.
  • In case the foreign national/ accused is a woman or a child or a woman having a child, then the competent authorities have to follow the guidelines laid down in R.D. Upadhyay v. State of A.P., (2007) 15 SCC 360, and the specific statutory provisions. If the mother is in custody with an infant below or upto the age of 6 years then the Court may allow the child to accompany the mother in custody. In the event either of the parents are arrested, then the custody will be granted to the parent who is not arrested; if both the parents are under arrest, then the custody shall be given to their close relative or government shelter home as per the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.
  • If the foreign national is an illegal immigrant who has been involved in a criminal offence under any law other than the Foreigners Act, 1946, then the Centre and State Governments shall take immediate actions with proper application of their mind. In case, the offences committed are not heinous in nature, then the Governments may withdraw those cases under Section 321 of CrPC and start the deportation process as soon as possible.

   [ Babul Khan v. State of Karnataka, Crl. P. No. 6578 of 2019, decided on 19-05-2020]

OP. ED.

“A man of courage never needs weapons, but he may need bail.”

– Lewis Mumford
(American historian, architect, philosopher, literary critic)

The present article focuses on the aspect of “default/statutory/compulsory bail”, in terms of the provisions of Section 167 of the Code of Criminal Code, 1973. The moot question that the present article tries to address is that “whether various prisoners who are lodged in various prisons all over the country, irrespective of the nature and gravity of the offences alleged, are entitled to avail “default/statutory/compulsory bail”, if no final report is filed against them under Section 173 CrPC and the prescribed period as per Section 167(2) CrPC is over?”

The relevant provision of Section 167 CrPC reads as follows:

“Section 167. Procedure when investigation cannot be completed in twenty-four hours.–        *                *                   *

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

a. the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;”

It is no longer res integra that every accused person who is arrested in a criminal case, is entitled to a default/statutory/compulsory bail as a matter of right, as an “indefeasible right” accrues in his/her favour, the moment, the statutory period of 60 days or 90 days, as the case may be, is over, no charge-sheet/challan is filed against him/her for any reason whatsoever, and the arrestee is willing to furnish the bail bonds, in terms of Section 167(2) CrPC. The said right is absolute, unconditional and beyond the scope of any interpretation and provides a valuable mechanism to safeguard the fundamental rights even that of a prisoner. It is stated that way back in the year 1994, in the landmark case of Sanjay Dutt v. State[1], the  Constitution Bench of the  Supreme Court of India, while reiterating the view taken in Hitendra Vishnu Thakur v. State of Maharashtra[2], held that the said right is an indefeasible right and can be availed of till the challan is filed by the prosecution. Though, it is pertinent to mention that the  Supreme Court on 23.03.2020 took suo motu cognizance of a matter being Suo Moto Civil Writ Petition (Civil) No. 3/2020 titled “In Re: Cognizance for Extension of Limitation”[3] and in view of the present unfortunate coronavirus situation, extended the period of limitation for the litigants and held that, “to obviate such difficulties, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15th March, 2020 till further orders to be passed by this Court in present proceedings“. Even then, the said order dated 23.03.2020 may not be of any help to the investigating agencies inasmuch as the Limitation Act, 1963 is not applicable to Section 167 CrPC. The said section, rather, only confers a power on the Magistrate to commit an accused person to custody for a maximum period as prescribed in the said section. This view finds support from the decision of the High Court of Delhi rendered in Powell Nwawa Ogechi v. The State (Delhi Administration)[4] wherein the  High Court, while agreeing with the view taken by the  High Court of Bombay in State of Maharashtra v. Sharad B. Sarda[5]  held that even if the last day to file final report was a holiday, still, the same could not come to the rescue of the investigating agency therein. The provision of Section 10 of the General Clauses Act, 1897, which is pari materia to Section 4 of the Limitation Act, 1963 was considered and it was held that,

“A bare reading of the aforesaid provision of the Code would go to show that this provision merely confers power on the Magistrate to commit to custody an accused person and there is limitation of 90 days and 60 days, as the case may be. This provision of the Code falls under Chapter XII of the Code relating to information to the police and their powers to investigate. It is thus clear that this is a power which is only exercisable during the course of investigation of a case. Any further remand to judicial custody beyond 90 days and 60 days without the charge-sheet being presented before the Court will be without the authority of law.”

The same view has been taken by the High Court of Rajasthan in Hari Singh v. State of Rajasthan[6] and by the High Court of Gujarat in Alamkhan Umarkhan Jatmalek Jenjari v. State of Gujarat[7].

Protection envisaged under the Constitution of India

It is apposite to mention that as per Article 21 of the Constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Admittedly, the prisoners also have the aforesaid fundamental right enshrined under Article 21 of the Constitution of India, which is not only a legal right but also a human right inherent in our society. Therefore, any person can be deprived of his/her life or personal liberty but only according to procedure established by law and Section 167 CrPC provides for the said “procedure established by law” and curtails the aforesaid fundamental right enshrined under Article 21  to that extent. Hence, any non-compliance of Section 167 CrPC on any pretext, would amount to non-compliance of “procedure established by law”, thereby leading to a breach and violation of the fundamental right of the prisoners/arrestees guaranteed under Article 21 . Even in the absence of Article 21, the State has got no power to deprive a person of his or her life or liberty without the authority of law. This is the essential postulate and basic assumption of the Rule of law. Without such sanctity of life and liberty, the distinction between a lawless society and lawful society would cease to exist. Article 21 is rooted in consideration that life and liberty are priceless possessions and they cannot be compromised except with the sanction of law. This right is, as observed by the Supreme Court of India in its nine-Judge Bench judgment passed in Justice K.S. Puttaswamy v. Union of India[8], a primordial right, and cannot be curtailed. It was further held in the said judgment that the landmark case of ADM Jabalpur v. Shivakant Shukla[9] (also known as the Habeas Corpus case), wherein the suspension of Article 21 during the period of Emergency declared in the year 1975 was upheld by the Supreme Court, was a bad law and that, “the human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised State can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution.”

No doubt, the present situation is akin to a state of an “Emergency”, however, even during the proclamation of Emergency in terms of Article 356, Article 21 cannot be suspended and in this regard, Article 359 is very clear, which was specifically amended by passing the Constitution (Forty-fourth) Amendment Act, 1978 so as to exclude the provision of Article 21 even from the period of Emergency.

No court can, thus, extend the period prescribed under Section 167 CrPC unless it is specifically provided in the statute like in the Unlawful Activities (Prevention) Act, 1967[10], the Terrorist and Disruptive Activities (Prevention) Act, 1987[11], the Maharashtra Control of Organised Crime Act, 1999[12], etc. The Supreme Court in Achpal v. State of Rajasthan[13] categorically held that even if the charge-sheet is returned for technical fault, the benefit of Section 167 CrPC has to be given to the accused as it is an indefeasible right and that no court can extend the period prescribed.

Therefore, as soon as the period of 60 days or 90 days expires, as the case may be, and the challan is not filed then the accused person’s right ripens and he has to be released on bail, the moment he offers to furnish bail bonds. In  Rakesh Kumar Paul v. State of Assam[14] , Deepak Gupta, J. while upholding the view taken by  Madan B. Lokur, J. categorically reiterated the principle of bail under Section 167 CrPC and held that, “the accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail.”

Therefore, all those prisoners, who are in custody beyond the statutory period and charge-sheets/challans are not yet filed, can seek to explore this remedy to be released on statutory bail immediately and the denial thereof, might amount to a violation of their fundamental rights and be against the spirit of law laid by the Supreme Court of India in a number of cases.

*Advocate, Delhi High Court

[1] (1994) 5 SCC 410  

[2] (1994]) 4 SCC 602

[3] 2020 SCC OnLine SC 343 

[4] 1986 SCC OnLine Del 224

[5] 1982 SCC OnLine Bom 287 

[6]1998 SCC OnLine Raj 381

[7] 2015 SCC OnLine Guj 1557 

[8]  (2017) 10 SCC 1  

[9] (1976) 2 SCC 521 

[10] Unlawful Activities (Prevention) Act, 1967 

[11] Terrorist and Disruptive Activities (Prevention) Act, 1987  

[12] Maharashtra Control of Organised Crime Act, 1999 

[13] (2019) 14 SCC 599 

Case BriefsDistrict Court

Patiala House Court, New Delhi:  While deciding the instant bail application of student activist Safoora Zargar, who was accused of giving inflammatory speeches, thereby inciting riots and violence in North East Delhi and was arrested and taken into custody under the provisions of the Unlawful Activities (Prevention) Act, 1967 [hereinafter UAPA], Dharmendar Rana, ASJ, refused to grant her the bail. Furthermore, pointing out that although no direct violence is attributable to the applicant/ accused, still she cannot shy away from her liabilities.

The Court said that, “When you choose to play with embers, you cannot blame the wind to have carried the spark bit too far and spread the fire”. However, taking note of the accused/ applicant’s pregnancy, he requested the Jail Superintendent to provide adequate medical aid and assistance to her.

The applicant/accused is a student of Jamia Milia University. It was alleged by the prosecution that she delivered an inflammatory speech at Chand Bagh area of North East Delhi. Aftermath of which, riots erupted leading to a great loss of life and property. As per the submissions of the Additional Public Prosecutor, Irfan Ahmed, there is enough evidence available on record to connect the applicant/ accused to the riots. It was further submitted that Section 43D (5) of the UAPA places a statutory restriction on the power of the Courts to release the applicant/ accused on bail. The prosecution further pointed out that certain incriminating materials were seized by the police and if this recovery is viewed against the backdrop of the inflammatory speeches given by the applicant/ accused and statements of the witnesses, then it is clear that the riots were a result of a conspiracy to overawe the government and disrupt the normal functioning of the capital city. Thus under these circumstances, the applicant- accused should not be granted bail.

Meanwhile, counsel for the applicant/accused, Sanya Kumar, contended that the applicant/accused is an innocent woman who has a contrary opinion on the Citizenship Amendment Act (hereinafter CAA) and had simply exercised her fundamental right under Article 19(1)(a) of the Constitution by being involved in a peaceful protest against the CAA. She further pointed out to the court that the applicant/accused delivered her speech on 23-02-2020 and riots started in the afternoon of 24-02-2020. The evidences clearly suggest that the applicant was not present on 24-02-2020, therefore the alleged violence cannot be attributed to her and the provisions of the UAPA have been wrongly invoked against her. The counsel also contended that the applicant/ accused should be granted bail on humanitarian grounds as she is 21 weeks pregnant and suffers from various other medical complications and given the spread of Covid-19, the applicant/ accused is particularly vulnerable.

Perusing the contentions of both the parties, the Additional Sessions Judge observed that freedom of speech and expression is indeed a foundation for strong and vibrant democracy, however the same is not an absolute right and is subject to the reasonable restrictions laid down in Article 19(2) of the Constitution. Considering the provisions of the UAPA, the Court observed that any activity which creates a disorder and disturbance of law to such an extent that an entire city is “brought down to its knees”, constitutes an ‘unlawful activity’ under Section 2(o) of the UAPA. Concurring with the contentions of the prosecution, the Court noted that it cannot ignore the material available on record which clearly suggests that there was a conspiracy to create an unprecedented scale of destruction and breakdown of law and order. Finding no merits, the Court thus dismissed the bail application. [State v. Safoora Zargar, Bail Application No. 1119/2020 , decided on 04-06-2020]

Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J., while addressing a bail application held that,

social media has created a panic situation where a social divide is being brought in the minds of the general public on the basis of the communal identification of a group of persons.

Background of the Case

Respondent-Police alleged that when some persons had approached the Sub-Inspector of police showing a video clip on his phone wherein it was seen that 2 persons were picking up watermelons from a drain.

Petitioners admitted to Sub-Inspector of Police that they are the two persons found in the video clipping. Though petitioners denied that they have indulged in any offence or activity which would cause any danger either to themselves or to the public to whom the water melons were being sold.

Offences punishable under Sections 270, 328 read with Section 34 of Penal Code, 1860 were registered against the petitioners.

Petitioner approached the Court for bail under Section 439 CrPC.

Submissions [SECTION 328 of PENAL CODE, 1860]

Petitioner Counsel submitted that even assuming petitioners were picking up water melons from a drain and were selling the same to the public, Section 328 of IPC is not attracted. 

Section 328 IPC: “…If a person administers or causes another person to take any poison or any stupefying, intoxicating or unwholesome drug, with intent to cause hurt to such person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, he or she is guilty of the offence.”

Adding to its submissions, it was further submitted that, the water melons had fallen off into the open drain where there was no stagnant water or running drainage water, an impression is created as if the petitioners have wantonly dipped the water melons in the drain water and put up the same for sale to the general public which would cause serious health issues to persons who consume such water melons.

Bench

Court found substance in the arguments placed by the petitioners.

“Court is not oblivious of the circumstances under which the Police have sprung into action noticing the content of the video clipping.”

Bench further added that the social media has created a panic situation where a social divide is being brought in the minds of the general public on the basis of the communal identification of a group of persons.

In Court’s opinion, the matter requires a trial then only the truth of the allegation could be tested.

On the face of the material available on record, it cannot be said that the provision of Section 328 could be attracted in the present facts and circumstances of this case.

Thus in view of the above stated reasons, petition is allowed with petitioners being enlarged on bail.[Sri Rihan v. State of Karnataka, Criminal Petition No. 2378 of 2020, decided on 29-05-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma , J., allowed the bail petition stating that object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial.

The present petition has been filed under Section 439 Criminal Procedure Code, 1973 for grant of regular bail. The facts of the case are that victim prosecutrix, aged 26 years old, were working in a company since 2017, and in 2018 met the bail petitioner and became good friends. In year 2019, she attended bail petitioners marriage where he expressed that he is not happy with the marriage and wants to marry her, attempts of which she rejected. The bail petitioner allegedly sexually assaulted her twice and impregnated after which when she asked him to get married he refused and advised her to terminate the pregnancy. Hence she filed an FIR against him wherein investigation is complete and the trial is pending.

Arvind Sharma, Additional Advocate General with Kunal Thakur, Deputy Advocate General argued that the crime is a grave one  and the bail petitioner does not deserve any leniency. They further argued that the medical report submitted clearly proves that the bail petitioner is the biological father of the foetus in the womb and hence is charged with Section 376 of Penal Code, 1860

Advocate Rakesh Kumar Doga is representing the petitioner side.

The Court relied on the judgment titled Dataram Singh v. State of U.P., (2018) 3 SCC 22 and Prasanta Kumar Sarkar v. Ashis Chaterjee, (2010) 14 SCC 496 and held that, a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty and that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception.

In view of the above mentioned arguments and observations the bail was granted. [Ritesh v. State of Himachal Pradesh, 2020 SCC OnLine HP 585 , decided on 27-05-2020]

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J. allowed the revision petition filed setting aside the order dated 10-2-2020 passed by the Principal Magistrate, Juvenile Justice (JJ) Board, Udaipur so also the order dated 17-2-2020, passed by the appellate Court i.e. Special Judge, (Protection of Children from Sexual Offence Act and Child Rights Protection Commission Act, POCSO) No.1, Udaipur, in Criminal Appeal No 8 of 2020.

Swapnil Kalal had filed an FIR on 12-10-2019, intimating that two young boys intercepted him when he had reached Darshan Ghati on his motorcycle and had snatched away his bag containing Rs 62,460 and some important documents, during investigation the police identified the petitioner as one of the accused and had apprehended to try him for the offence under Section 392/34 of Penal Code, 1860.

Considering that petitioner was 17 years of age – a juvenile, he was ordered to be sent to Rehabilitation Center on 30-1-2020. A bail application was filed on petitioner’s behalf by his uncle, which came to be rejected by both the JJ Board and the appellate board, thus the instant petition.

Counsel for the petitioner Bharat Shrimali argued that the offences alleged against the petitioner were triable by magistrate and thus, the JJ Board ought to have enlarged the petitioner on bail considering that he was behind bars for considerable period and that if he had been a major he would have been granted bail by then.

Further, he stated that the charge sheet/final report had not been filed so far, thus petitioner was entitled to be enlarged on bail, as the statutory period for filing charge-sheet had since passed on the other hand the public prosecutor Laxman Solanki, responded that as per Section 12 of JJ Act, the Board was not required to mechanically release a juvenile or grant him bail as a matter of course, merely because the accused before it was a juvenile and in the response of the delay in filing the chargesheet he blamed the lock down and cited the order dated 23-3-2020 passed by the Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020, whereby period of limitation came to be extended considering the situation of overall lock down.

Court while allowing the revision petition upheld the orders under challenge on their merits and stated that there was no reason or material to interfere with the finding recorded by the Board and affirmed by the appellate Court, holding that if the present petitioner – a child in conflict with law was released, there was every likelihood that he will mingle in the company of violators of law and prodded or prompted to commit similar offences.

Further, the Court explained the argument based on failure to file charge sheet and corresponding defence taken by the State-Prosecution and stated that in absence of any amendment in the statute and without there being any remote reference of investigation or provisions of the Code in the order of Supreme Court, taking shield of the Supreme Court’s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Article 21 of the Constitution relying on numerous Supreme Court and High Court Judgments held that the petition deserved to be allowed. [Pankaj v. State,  2020 SCC OnLine Raj 867 , decided on 22-05-2020]

Case BriefsCOVID 19High Courts

Kerala High Court: C.S. Dias, J., allowed the present petition while quashing the condition imposed by Sessions Judge for granting bail.

Petitioner was granted bail by Sessions Judge on the condition to deposit an amount of Rs 25,000 towards Corona Relief Fund and produce the receipt before the Court.

Petition was aggrieved with the above-said condition

“It is trite law that the grant of bail is a rule and that jail is only an exception. Undisputedly, the petitioner had applied and was granted bail under Section 167(2) of the Code of Criminal Procedure, which is his indefeasible right.”

Court relying on the Supreme Court decision in Moto Ram v. State of M.P., AIR 1978 SC 1594, wherein it was held that the imposition of cash security or deposit of any amount for grant of bail is unjust, irregular and improper.

Thus, in the present case, Court held that the condition imposed by the Sessions Judge is improper and unjust. Hence, the imposed condition is to be quashed.

Bench exercising its power under Section 482 CrPC, the jurisdictional Police is granted the requisite permission to the petitioner and the sureties to travel from Thrissur to Thalassery for the purpose of executing the bail bond before the jurisdictional Court. [Chinna Rao Swayamvarappu v. State of Kerala, 2020 SCC OnLine Ker 1412 , decided on 21-04-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banarjee and Kausik Chanda, JJ., granted bail to a rape accused taking note of the submission that the accused and the victim intend to get married in immediate future.

The accused claimed that though the alleged victim was a minor when the accused may have had sexual relationship with her, the victim has now attained majority. It was submitted that the accused and the victim intend to get marry in the immediate future.

Considering this submission, the High Court granted bail to the accused, subject to the Investigating Officer satisfying himself upon conversing with the victim as to her understanding of the situation.

It was further directed that in the event the marriage does not take place within the next 3 months or there is any further complaint from the victim against the accused within 6 months of the marriage, the bail may be annulled.

Subject to the above, the accused was directed to be released on bail upon furnishing a security bond of Rs 10,000 and producing a personal release bond of equivalent value. [Sopikul, In Re, 2020 SCC OnLine Cal 838 , decided on 16-4-2020]

Case BriefsCOVID 19High Courts

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

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

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

Thus the bench stated that,

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

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

“…all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.” [In re  State of U.P. (Suo Motu), 2020 SCC OnLine All 300 , decided on 06-04-2020]

Case BriefsCOVID 19High Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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