Bail

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a bail application filed by the applicant charged under Sections 376-A, 376-B, 354 of Penal Code, 1860 (IPC), Sections 9-D and 10 of Protection of children from sexual offences, 2012 (‘POCSO Act’), and Section 3(2)(v) of Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act), Sadhna Rani Thakur, J. has without expressing any opinion on the merit of the case, released the applicant on bail subject to some conditions.

The Court noted that on the perusal of the First information report (FIR), it appears that in the absence of other family members, when the eight years old victim was alone at her home, she called the applicant to repair the dish connection, seeing the girl alone at her home, he started vulgar activities with her. In the statement under Section 161 of Code of Criminal Procedure, 1973, the victim has stated that when applicant came in the house to repair the dish connection, seeing the girl alone, he inserted his hand in her clothes and kissed her on lips. However, as per statement under Section 164 CrPC of the victim, the applicant after repairing the dish connection held her tightly and kissed on her lips, inserted his hand into her panty and also pressed her breast by inserting her hands therein.

The applicant submitted that there are no ingredients of Section 376 IPC as per the statements of the victim under Sections 161 and 164 CrPC. Further, no medical examination has been conducted as the parents of the victim refused to get her daughter medically examined. Moreover, the father of the victim is police personnel, and the FIR is only the misuse of that power. The applicant is 50 years of age and has been in jail since 13.04.2022.

The Court considering the seriousness of the charge, severity of punishment in case of conviction, the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India, and the decision in the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22 and without expressing any opinion on the merit of the case, released the applicant on bail subject to certain conditions.

[Manoj Saxena v. State of U.P, 2022 SCC OnLine All 624, decided on 2.9.2022]

Advocates who appeared in this case :

Umesh Pal Singh, Advocate, Counsel for the Applicant;

Government Advocate, Counsel for the Opposite Party.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, CJ and S. Ravindra Bhat and PS Narasimha, JJ has granted bail to Journalist Sidhique Kappan after considering the length of custody undergone by him ever since he was taken in custody on 06.10.2020. It is important to note that, last month, the Allahabad High Court had rejected his bail plea.

The Kerala journalist was arrested under the Unlawful Activities (Prevention) Act on his way to Hathras, Uttar Pradesh to report on the alleged gang-rape of a Dalit woman, who later died in the Hospital. He has been booked under Sections 153A, 295A, 120B of the Indian Penal Code, Sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 and sections 65 and 72 of the Information and Technology Act, 2000. While the charge-sheet has already been filed on 02.04.202, the matter has yet not been taken up for consideration whether charges need to be framed or not.

While the Court refrained from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter is still to be taken up at the stage of framing of charges, it directed that Kappan be produced before the Trial Court within three days; and that the Trial Court shall release him on bail, subject to such conditions as the Trial Court may deem appropriate to impose to ensure Kappan’s presence and participation in the matter pending before it. Apart from this, Kappan shall either in person or through a lawyer attend the proceedings before the trial court on every single date. He will also deposit his passport if not already deposited with the investigating machinery before his actual release.

The Court also imposed the following conditions on Kappan while releasing him on bail :

  1. For the first six weeks, Kappan has to stay in Delhi and within the jurisdiction of Nizamuddin police Station. He cannot leave Delhi without express permission of the trial court; He also has to record his presence in the concerned police station every Monday in a register maintained for the purpose.
  2. After six weeks, he may go back to his native place and stay at Mallapuram in Kerala but shall report at the local police station on every Monday and mark his presence in the register maintained in that behalf.

[Sidhique Kappan v. State of Uttar Pradesh, Crl.A. No.-001534-001534 / 2022, order dated 09.09.2022]

For Sidhique Kappan: Senior Advocate Kapil Sibal

For State: Senior Advocate Mahesh Jethmalani

Also Read

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: In deciding the instant bail application filed by a juvenile applicant by invoking Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015, the Bench of Bharati Dangre, J., while invoking the principles of repatriation and restoration, granted bail to the applicant. It was observed that since the applicant had positively responded to the rehabilitative efforts during his stay in the Observation Home, he therefore deserves to be reunited and restored with his family and it would be in his best interest so that he can develop himself with full potential.

Facts of the Case: The applicant along with five adults, were arrested for gang-raping a 7-year-old girl and were charged under Sections 376-D, 376(1)(n), 354, 354-D, 114, 509, 506 of IPC and Sections 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO Act). Upon the applicant’s arrest, he was produced before the Juvenile Justice Board constituted under the Juvenile Justice Act, 2015 and was placed in the Observation Home.

The applicant filed two bail applications before the Juvenile Justice Board, but both the applications were rejected. The Board observed that the adult accused persons are the family members of the applicant, and if the applicant is released on bail, he may again come in contact with these people or other people of similar criminal tendencies. The Board held that the applicant’s safety can only be ensured if he is inside the Observation Home.

Contentions of the Applicant:

  • The counsels for the applicant contended that the juvenile applicant belongs to a lower- middle socio-economic background, with his father working as a watchman and his mother being a homemaker. It was also submitted that the applicant had passed his 10th Standard but could not further pursue his education due to financial issues and mother’s illness.

  • It was contended that the applicant’s involvement in the crime is doubtful as the prosecution hasn’t been able to establish the same.

  • The applicant’s side also presented his physical and psychological status report by the Child Guidance Clinic wherein the Probation Officer stated that the applicant is not a danger to the society and has shown good potential to excel, if right kind of opportunities, guidance, support and education are made available to him. It was stated in the report that the applicant has been deprived of his education during his long detention in the Observation Home and the same has caused disruption to his life.

  • The applicant also drew the attention of the Court towards the objectives of Juvenile Justice Act, 2015, which considers a child as distinct from an adult, who has to undergo through the normal procedure on being accused of an offence. It was submitted that the principle of repatriation and restoration which has been recognized as an essential principle by the legislature through the 2015 Act has been violated.

  • It was also submitted that the prolonged detention of the applicant is hampering his progress and also affecting his mental health as it has caused him undue anxiety and that his further stay in the Observation Home is against his interest.

Contentions of the Respondent:

  • Vehemently opposing the bail application, the respondents submitted that the offence that has been committed i.e., gang-rape of a 7-year-old, the crime is heinous in nature. Thus, the applicant does not deserve his release on bail.

  • It was further argued that if released on bail, the applicant would pose danger to the victim.

  • The respondents also pointed out that the Special Judge under the POCSO Act also rejected the application filed by the applicant under Section 439 of CrPC by recording that the accusations faced by the applicant are grave in nature and it is a case of gang rape- an aggravated sexual assault.

Observations and Decision: Perusing the facts and contentions presented, the Court made the following observations-

  • The Court observed that the Juvenile Justice Act, 2015 was enacted while noting that the justice system applicable for adults is not suitable to be applied to a child or a juvenile. Therefore, a new method was evolved to try juveniles, so as to protect their interest and also insulate them from being exposed to vagaries of police and the normal criminal system. The Court also took into account Articles 15, 39 (e) and (f), 45 and 47 of the Constitution and United Nations Convention on the Rights of Child and perused in detail the Juvenile Justice Act, 2015.

  • The Court noted that, “Section 12 (1) of the 2015 Act, makes a provision to the exclusion of anything contained in the CrPC or any other law for the time being in force and is a special provision for a child who is alleged to have committed a bailable or non-bailable offence”. The only embargo is in the proviso to Section 12 stating that where there are reasonable grounds for believing that the release is likely to bring that person into association with a known criminal or expose the said person to moral, physical and psychological danger or the person’s release would defeat the ends of justice. “In the scheme of enactment, it can be seen that Section 12 contains an imperative mandate to release a child on bail, when he is apprehended or detained in connection with an offence and it is a special provision, which stands to the exclusion of the CrPC”. It was pointed out by the Court that Juvenile Justice Act, 2015 is a special statute providing a special procedure to protect children in need and children in conflict with the law. Thus, it is important that while construing its provisions, the core objective of this legislation must not be forgotten.

  • The Court noted the Report presented by the Probation Officer vis-a-vis the applicant’s physical and psychological parameters and observed that the applicant does not fulfill the criteria stated in the embargo contained in Section 12. It was observed that the Report does not reflect him as a desperado or a person misfit in the society, and it recommends that if an opportunity is given to the applicant, he will be a better person.

    “The accusations faced by the applicant are undisputedly serious, but he must also derive the benefit of being a ‘child’, despite he is being tried as an adult and the benefit of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be denied to him”.

  • Stating that the applicant’s education has suffered due to his detention and the same could not be allowed, the Court granted bail to the applicant.

[Sandeep Ayodhya Prasad Rajak v. State of Maharashtra, 2022 SCC OnLine Bom 1825, decided on 22-08-2022]

Advocates who appeared in this case :

Maharukh Adenwalla, Advocate, for the Applicant;

A.A.Takalkar, A.P.P., Advocate, for the State/Respondent;

Saveena Bedi, Advocate, for the Intervenor.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to an appeal filed to set aside the judgment and enlarge the appellant on bail, the division bench of S.Vaidyanathan and A.D.Jagadish Chandira, JJ. observed that no offence had actually taken place and no complaint has arisen from the so-called victim, but it is the case of the prosecution that merely on a suspicion of a police officer on duty who after seeing the appellant had enquired about him and on his confession statement the entire case of the prosecution had commenced and thereafter, keeping the statement of the appellant as a basis, the other links of the case of the prosecution, namely, the associates of the appellant in the alleged conspiracy had been fused.

The appellant was charged with offences under Ss.153-A(1)(b), 120-B, 201 of Penal Code, 1860 (IPC); S.7(1)(a) of Criminal Law Amendment Act,1932 (CLA); S. 25(1A) of Arms Act, 1959 and S.16 of Unlawful Activities (Prevention) Act, 1967 (UAPA), and was remanded to judicial custody on 08.03.2022 and is in incarceration for more than 100 days.

The Court took note of the provisions of the UAPA Act and observed that “when an offence falls within the provisions of Chapter IV of the Act, necessarily, while deciding an application for bail, the court has to take into consideration the proviso to Section 43D (5) of the Act and has to formulate an opinion as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true”.

The Court observed that initially, the prosecution had come out with allegations against the accused for the offences punishable under the provisions of IPC and CLA Act, later, the offence under the provisions of Arms Act got included and thereafter, the offence punishable under the provision of UAPA Act was introduced. It viewed that the provisions of UAPA Act have been included only in order to deny/delay the appellant from getting bail from the court and there is no other material to pin-point that the appellant and other accused had intended to commit the murder of the victim to create terror and fear among the public and people of other sections.

The Court further observed that “the State police has referred the case to be investigated by the National Investigation Agency (NIA), however, said proposal was rejected by NIA which speaks much about the case of the prosecution”. It relied on the judgement in National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Court laid down the aspects that need to be considered for deciding a bail application; and further took note of the ruling in Union of India v. K.A. Najeeb (2021) 3 SCC 713, wherein the court held that “ the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution and both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised”.

Moreover, as there was no complaint from any person and nobody was injured in this case, this case was merely registered based on suspicion and confession statement of the appellant; The Court held that “the allegations against the appellant do not fall within the definition of “Terrorist Act” and there are no reasonable grounds for believing that the accusation against the appellant is prima facie true”, hence, released the appellant on bail.

[Sadam Hussain v. State of Tamil Nadu, Criminal Appeal No.597 of 2022, decided on 26.8.2022]

Advocates who appeared in this case :

S.M.A.Jinnah, Advocate, for the Appellant;

Add. Public Prosecutor Babu Muthumeeran and Special Public Prosecutor (NIA) R.Karthikeyan, Advocate, for the Respondents.

Rouse Avenue
Case BriefsDistrict Court

   

Rouse Avenue District Courts, Delhi: In a case relating to illegal interception/monitoring of telephone calls of National Stock Exchange ‘NSE' employees by iSec Services Pvt. Ltd, a privately owned company under the guise of contract of Study of Cyber Vulnerabilities, whose approval was given by Chitra Ramakrishna (‘applicant') and paid Rs. 4.54 crore to iSec Services as a consideration thus, attracting various offences under different statutes, Sunena Sharma, J. denies bail to the applicant as the material placed on record was sufficient to prima-facie show that the applicant was the major role player in the entire conspiracy as well as in projection of proceeds of crime as untainted money.

The applicant was associated with NSE as Deputy Managing Director/Joint Managing Director/Managing Director of NSE during the period of offence between 2009-2017 and said illegal activities ceased to exist after the applicant demitted office as Managing Director.

In the instant case, the applicant in connivance with Ravi Varanasi, Vice President NSE and Mahesh Haldipur (Head Premises) conspired together with iSec Services for illegal tapping of phone calls and snooping of NSE's employees under the guise of a legal contract which was given the name of Study of Cyber Vulnerability.

The telephone numbers to be monitored were purportedly identified by the applicant and conveyed to Ravi Varanasi who in turn provided the same to Mahesh Haldipur who further gave it to iSec. The suspicious numbers identified by the applicant were given to iSec to be put on recording and iSec used to prepare the transcripts of the recorded conversation of said numbers and share it with the applicant and other top officials of NSE.

Central Bureau of Investigation registered FIR under Section 120-B read with Section 409 & 420 of Penal Code, 1860 (‘IPC'), Section 20, 21, 24 & 26 of Telegraph Act, 1885, Section 3 & 6 of Wireless Telegraphy Act, 1933, Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988 and Section 69-B, 72 & 72-A of Information Technology Act, 2000 against iSec Services Pvt. Ltd. & other accused persons including the applicant.

The Enforcement Directorate (‘ED') also registered a case under Prevention of Money Laundering, 2002 (‘PMLA') for the offence of money laundering as defined under Section 3 and punishable under Section 4 of PMLA. The warrants were issued and the applicant was arrested by ED. Thus, present bail application was filed under Section 439 Criminal Procedure Code (‘CrPC') read with Section 45 of PMLA, 2002.

Placing reliance on Rohit Tandon v. Enforcement Directorate, (2018) 11 SCC 46, Anirudh Kamal Shukla v. Union of India 2022 SCC Online All 176 and Ranjitsing Brahmajetsing Sharma v. State of Maharashtra (2005) 5 SCC 294, the Court noted that monetary loss was caused to NSE by allowing the iSec to gain money out of illegal tapping of phone calls by using the direct lines of MTNL and for said purpose software and hardware of recording/monitoring server which was purchased by iSec for NSE from Nexco Techno Solution, were allowed to be installed in the upper basement of NSE building, under the guise of a legitimate contract of Study of Cyber Vulnerabilities. It is only with the active assistance and help of applicant and other top officials of NSE, that the iSec was able to generate money to the tune of Rs. 4.54 crores and give it a colour of untainted money by showing it to have been through a legitimate source.

On the contention that provisions of Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988do not apply, as the applicant is not a public servant within the meaning of the provisions of PC Act, the Court rejected the contention by relying on Delhi Stock Exchange v. K.C. Sharma LPA No. 331/199 2000 Vol. XCIII DLT 2333, wherein it was held that the Central Government has deep and all-pervasive control over the functioning of stock exchanges. It was further held that to ascertain if an ‘authority or an institution of self-government' established by notification or an order of the Central Government is a Public Authority or not, the main thrust should be not upon the composition of the company but upon the duties and functions performed by it.

On the contention that the applicant being a woman is entitled to the benefit of the first proviso to Section 45 (1) PML Act, the Court rejected the contention noting that extension of said benefit cannot be claimed as a matter of right as the discretion lies with the court to exercise such powers only in suitable cases.

Thus, the Court remarked that when the alleged offences were committed, the applicant was holding key positions of DMD/MD/JD in NSE and was actively involved in all important affairs of the company. She was the one who accorded approval to the façade contract of Study of Cyber Vulnerabilities and had dominion over the properties and funds of the NSE.

Thus, the Court held that there is absolutely no reasonable ground to record that the accused/applicant is not guilty of the offence alleged against her especially at this stage when the investigation is not yet complete.

[Chitra Ramakrishna v. Directorate of Enforcement, Bail Application No 201 of 2022, decided on 29-08-2022]

*Arunima Bose, Editorial Assistant has put this report together.

Manipur High Court
Case BriefsHigh Courts

Manipur High Court: In a case where the criminal appeal was pending and the applicant convicted under Section 6 of the Protection of children from sexual offences Act, 2012 (POCSO Act) filed an application for the suspension of sentence, on the ground of ill-health, M.V. Muralidaran, J. observed that right to life and liberty of an individual is precious under Art. 21 of the Constitution of India and is a very valuable right of accused/convict that continues during the appeal period, as appeal is the continuation of the trial. Further, there is no straitjacket formula which could be applied in exercising discretion for suspending the sentence of a convict, and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application filed by a convict under S. 389 of the Code of Criminal Procedure, 1973.

It further observed that “under-trial prisoner’s right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person’s health concerns have to be taken care by the State and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges. Rather, it subsists beyond the prison gates and operates until his last breath”.

In the present case, the applicant was convicted for doing sexual assault upon a minor girl aged 3 ½ years at the time of its occurrence, and the applicant was sentenced to undergo 20 years rigorous imprisonment and to pay fine of Rs. 30,000/-, in default, to undergo 6 months simple imprisonment. The applicant submitted that he has been suffering from failure of right kidney, calculi on the gall bladder, spinal cord problem and other serious bodily injuries, if not released on bail, pending disposal of the appeal, his life will be in danger. The court stated that the medical records produced by the prosecution are of 2019 and nothing has been produced to show improvement in the health of the applicant, and further no latest medical record has been produced to show that proper treatment is given to the petitioner for nearly four years in jail

The issue was whether the applicant is entitled to enlarge on bail by suspending the sentence on medical grounds pending appeal.

The Court took note of the ruling in Bhagwan Rama Shinde Gosai v. State of Gujarat, (1999) 4 SCC 421, wherein it was held that “when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances”; and observed that the crime alleged against the applicant is serious in nature and also an insult to the human dignity of the society, however, taking into consideration the health condition of the applicant, it released the applicant on bail mainly on medical grounds by suspending the sentence.

The Court further viewed that where an appeal is preferred against conviction before the High Court, it has ample power and discretion to suspend the sentence judiciously depending upon the facts and circumstances of each case and while considering the suspension of sentence, each case has to be considered on the basis of:

  • nature of the offence,

  • manner in which the occurrence had taken place,

  • whether bail granted earlier had been misused.

Moreover, the Court while suspending the sentence of the applicant-convict, subject to some conditions, observed that “every person who is accused of an offence requires humane treatment by the prison authorities. Humane treatment to all including accused/convict is requirement of law. Furthermore, a prisoner/convict who is suffering from an ailment has to be given due treatment and care while in prison”.

[Sandam Bhogen Meetei v.State of Manipur, 2022 SCC OnLine Mani 371, decided on 23.08.2022]

Advocates who appeared in this case :

S. Jibon, Advocate, Counsel for the Applicant;

Public Prosecutor H. Samarjit, Advocate, Counsel for the Respondent.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: In a case where the applicant-accused seeks bail on being apprehended by police, having possession of Ganja and Bhang together, K Natarajan, J. granted bail to the applicant as Bhang will not be considered along with Ganja to measure commercial quantity. The Court held that until forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same.

The Begur Police registered suo motu complaint on receiving credible information regarding two people carrying Ganja and Bhang. The police raided the spot and seized 29 kgs of bhang of different companies and 400 grams of ganja from the possession of the petitioner. FIR was registered under Section 20 (b) of Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). The petitioner was thereby arrested and was seeking bail under Section 439, Criminal Procedure Code, by filing the present application.

Counsel for State submitted that Bhang is prepared out of the ganja leaves therefore it comes under the definition of ganja under Section 2 (iii) of NDPS Act. Considering, Bhang also comes under Ganja, it will bring the articles seized to be more than commercial quantity, thus bail must be rejected.

Placing reliance on Madhukar v. State of Maharashtra, 2002 SCC OnLine Bom 1271 and Arjun Singh v. State of Haryana, 2004 SCC OnLine P&H 828, the Court noted that there is no scientific evidence before the Court to show that the Bhang is prepared out of either charas or ganja or ganja leaves. Since ganja leaves and seeds are excluded from the definition of ganja and nowhere in the NDPS Act, the Bhang is referred as a prohibited drink or prohibited drug. Even the State government has not made any rules under the NDPS as prohibitory drug or issued any notifications in respect of Bhang.

The Court further noted that Bhang is a traditional drink and most of the people drink in North India especially near Shiva temples. Bhang is also sold in the marked with branded names, thus until the receipt of forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same.

Thus, the Court granted bail to the applicant as he was only in possession of 400 grams of ganja, which is below commercial quantity.

[Roshan Kumar Mishra v. State of Karnataka, 2022 SCC OnLine Kar 1484, decided on 26-08-2022]

Advocates who appeared in this case :

S Manoj Kumar, Advocate, for the Petitioner;

R D Renukaradhya, Advocate, for the Respondent.

*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case filed by a woman alleging rape charges under Penal Code, 1860 (‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), Jasmeet Singh, J. granted bail to the applicant accused as the case, in the opinion of the Court and based on the materials presented before it, prima facie seemed one of ‘honey trapping’. The Court directed the Commissioner of Police to conduct a detailed investigation and further clarified that mere having an Aadhar and PAN card and the date of birth mentioned in it is sufficient for someone to form an opinion that he is not indulging in physical relations with a minor, verification of such documents by the partner before sex is not required.

The petition was filed seeking bail in an FIR registered u/s 376, 34 IPC read with Section 6 POCSO Act registered at P.S. Pahar Ganj, Delhi. It was alleged in the FIR that the applicant and prosecutrix met in September 2019, exchanged numbers and became friends. It was further alleged that the applicant called the prosecutrix at a hotel, established physical relations with her, made a video and blackmailed her. It was also alleged that she was held captive at a place in Rohini where she managed to escape and met Savita who is an advocate and helped the prosecutrix to file the instant case.

The Court noted that as per the prosecutrix’s claim she had relationship with the applicant from 2019, and the applicant was blackmailing the prosecutrix and the fact that the prosecutrix escaped from the captivity of the applicant-accused 8 months before the FIR was lodged, therefore, the FIR was lodged with such delay.

On the contention raised by the counsel for applicant that the prosecutrix has 4 different dates of birth thus making the grounds of POCSO charges shaky, the Court noted that it seems the prosecutrix has 3 different dates of birth and the Aadhar card show her date of birth as 01-01-1998 and hence on the date of the alleged incident, the prosecutrix was supposed to be a major.

The Court observed that the person who is in a consensual physical relationship with another person is not required to judicially scrutinize the date of birth of the other person. He is not required to see Aadhar card, PAN card and verify the date of birth from her school record before he enters into a physical relationship. The very fact that there is an Aadhar Card and the very fact that the same date of birth shows 01-01-1998 is sufficient for the applicant to form an opinion that he was not indulging in a physical relationship with a minor.

The Court opined that there being transfers of huge amounts of money in favour of the prosecutrix amounting to Rs 50,00,000 for which no reasonable explanation was given by the prosecutrix, the present seems a case of honey trapping where innocent persons are being honey trapped and huge amounts of money are being extracted from them.

Thus, the Court directed the Police Commissioner to have a detailed investigation as regards the prosecutrix and find if any similar FIR is registered by the prosecutrix against any other person in Delhi and further investigate the Aadhar card, date of issuance of the same and the supporting documents filed for issuance of the said Aadhar card.

The Court granted bail subject to the following conditions:

i. The applicant shall furnish a personal bond with one local surety in the sum of Rs. 20,000/- each, to the satisfaction of the Trial Court;

ii. He shall appear before the Court as and when the matter is taken up for a hearing;

iii. The applicant shall provide his mobile number to the Investigating Officer (IO) concerned- at the time of release, which shall be kept in a working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the bail period;

iv. He shall report to the local Police Station on the first Monday of every month at 10:30 A.M. He shall not be forced to sit for more than half an hour on any such occasion;

v. In case he changes his address, he will inform the IO concerned and this Court also;

vi. The applicant shall not leave the country during the bail period and surrender his passport, if any, at the time of release before the Trial Court;

vii. The applicant shall not indulge in any criminal activity during the bail period;

viii. The applicant shall not communicate with, or come into contact with any of the prosecution witnesses, or any member of the victim’s family, or tamper with the evidence of the case

[Hanzla Iqbal v. State, 2022 SCC OnLine Del 2598, decided on 24-08-2022]

Advocates who appeared in this case :

Mr. Amit Chadha, Adv. with Mr. Arpit Bhalla, Mr. Antim Chadha, Ms. Anjali Dhingra, Advocates, for the Petitioner;

Mr. Aashneet Singh, APP for State, Ms. Astha, Adv., DHCLSC SI Rajnandini, PS Pahar Ganj, Advocates, for the Respondent.

*Arunima Bose, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case related to an appeal filed for the cancellation of an order of dismissing the bail application by the Special Court under the National Investigation Agency Act (Sessions Court for Exclusive Trial of Bomb Blast Cases) (Special Court), S.Vaidyanathan and A.D. Jagadish Chandira, JJ. released the appellant on bail on executing a bond for a sum of Rs.25,000/ with two sureties and directed the Special Court to proceed further with the trial on a day-to-day basis.

The present case was registered under Ss. 16, 17, 18 and 20 of Unlawful Activities (Prevention) Act, (UAPA),1967 and Ss. 120-B, 34, 124-A and 489-C Indian Penal Code, 1860(‘IPC’) against the appellant and other accused for offences related to a threat emerging from a live conspiracy to smuggle explosives and terrorists into India from Sri Lanka and execute bomb attacks at the US Consulate in Chennai, Israel Consulate in Bangalore, other vital installations and places of public congregation in Southern India. The other accused persons were convicted. However, during the investigation, the appellant was found to be a habitual trafficker of high-quality counterfeit Indian currency notes, he was enlarged on statutory bail by the Special Court, while so, since the appellant did not turn up before the Special Court for the hearing of the case, summons were issued on various dates, and since he did not turn up even for that, the Court had issued a non bailable warrant of arrest against him.

Meanwhile, he was arrested by the Chennai Police under Section 392 IPC, and while he was in prison, he was produced before the Special Court and was remanded under Section 309 CrPC.and the trial as on date is pending for framing of charges against the appellant.

After that the appellant filed for bail and the same was dismissed by the Special Court invoking Section 43D (5) of the UAPA finding “prima facie” case as against the appellant, which lead to the present appeal.

The Court noted that the appellant had been granted statutory bail and it wasn’t cancelled. However, the Special Court had remanded the appellant under Section 309 CrPC., and by referring to the ruling in Raghubir Singh v. State of Bihar (1986) 4 SCC 481, wherein the Court held that S. 309(2) merely enables the court to “remand the accused if in custody” and it does not empower the court to remand the accused if he is on bail. It does not enable the court to “cancel bail” as it were, and that can only be done under Section 437(5) and Section 439(2).

The Court observed that “the appellant stands on a different footing than the other accused persons, who have been found guilty and convicted. Further, even though the delay in conducting the trial may be attributed to the appellant prior to his arrest, he is not responsible for the delay after his arrest and that he has been in prison for almost a year without there being any progress in trial and that in toto he had been in prison for more than 4 years.”

The Court also took note of the ruling in Union of India v. K.A. Najeeb (2021) 3 SCC 713, wherein, the Court held that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution, and both can be harmonised. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. The courts are expected to appreciate the legislative policy against grant of bail but the rigors of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Further in Asim Kumar Haranath v. National Investigation Agency (2021) SCC OnLine SC 1156, it was held that while deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long as timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.

The Court observed that:

“the law is well settled, that in case where the accused is on bail in non-bailable offence and did not appear on hearing date and non bailable warrant is issued, on appearance of the accused or on his production by police through Prisoner on transit (PT) warrant, opportunity should be given to the accused to explain his non-appearance and decide as to whether to let him off by recalling the warrant or to cancel the bail by recording reasons and he cannot be straightway remanded to judicial custody as a PT warrant can never be converted into a regular warrant in a case where the accused person is already on bail”

It further observed that as the appellant is in custody for more than a year without any progress in trial, and even the gravity of offence against him is comparatively lesser than that of the other convicted accused, the continued detention of the appellant is in violation of his right of personal liberty and the appellant is entitled to grant of bail subject to imposition of certain stringent conditions and directed the Special Court shall proceed further with the trial on a day to day basis in accordance with the guidelines given in Vinod Kumar v. State of Punjab (2015) 3 SCC 220.

[Noorudeen v. State of Tamil Nadu, 2022 SCC OnLine Mad 4223, decided on 26.08.2022]

Advocates who appeared in this case :

R. Sankarasubbu, Advocate, Counsel for the Appellant;

Public Prosecutor R.Karthikeyan, Advocate, Counsel for the Respondent.

Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court: In an appeal filed challenging the Trial court ruling, convicting the accused under Section 302 of Penal Code, 1860 (‘IPC') a Division Bench of S Muralidhar CJ., and R K Pattanaik J. upheld conviction under Section 302 IPC by examining circumstantial evidence in detail and directed cancellation of his bail bonds and surrender forthwith, as the appellant was enlarged on bail during the pendency of the proceedings.

The present Appellant alongwith Bidyadhar Pradhan, were charged with the offence under Section 109 read with Section 302 IPC on the grounds of abetting the murder of Bhagabati Pradhan. After analyzing the evidence, the Trial Court convicted the present Appellant while acquitting the co-accused. Assailing this order, the present appeal was filed.

The Court noted that this is a case of circumstantial evidence. Placing reliance on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Krishnan v. State, (2008) 15 SCC 430 and G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593, the Court reiterated the conditions to be fulfilled before conviction could be based on circumstantial evidence.

The first circumstance is regarding the quarrel that took place the previous night between the Appellant, the co-accused, on one hand and the deceased and her family on the other. The Court thus noted that no doubt the witnesses are related to the deceased but such relation, by itself, would not result in their testimonies being discarded if they are otherwise truthful and consistent with each other.

It was further noted that based on the evidence of witnesses, it not only supplies the motive for the offence, but also proves the fact that immediately prior to the occurrence on that very evening, the accused had threatened to finish off the deceased. As regards the recovery of evidence, the Court was of the view that it has been more than adequately proved by the IO himself by producing the relevant record. Even, the opinion of the doctor is more than sufficient for the Court to conclude that the death was homicidal in nature.

The Court remarked “the fact that the weapon of offence did not have bloodstains will not matter if all other circumstances form a continuous chain and clearly point to the guilt of the Appellant and no one else.”

The Court held that the evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence. Thus, no error can be found in the impugned judgment of the trial Court holding the appellant guilty of the offence punishable under Section 302 IPC.

[Tapan Kumar Pradhan v. State of Orissa, 2022 SCC OnLine Ori 2447, decided on 11-08-2022]

Advocates who appeared in this case :

Mr. Basudev Pujari, Advocate, for the Appellant;

Mr. Pravat Kumar Muduli, Additional Government Advocate, Advocate, for the Respondent.

*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: As Congress MP Karti P. Chidambaram has sought review of the 3-judge bench verdict on the Prevention of Money Laundering Act, 2002, the 3-judge bench of NV Ramana, CJ and Dinesh Maheshwari and CT Ravikumar, JJ has agreed to hear the review petition after observing that prima facie, it appears that at least two of the issues raised in the petition require consideration. The Court has hence issued notice in the matter.

In the judgment dated 27.07.2022 in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, the bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has upheld the validity of certain impugned provisions by holding that the same have reasonable nexus with the object sought be achieved i.e. combatting the menace of money laundering.

While the judgment runs into 545 pages, the key takeaways of the judgment are:

  1. Unlike FIR, the Enforcement Case Information Report need not be formally registered. It is also not mandatory to supply it to the accused.
  2. The twin conditions provided under Section 45, though restrict the right of the accused to grant of bail, do not impose absolute restraint on the grant of bail. Not just regular bails but this section also applies to anticipatory bail.
  3. The Court has suggested that the feasibility of placing ED Manual on the official website of ED may be explored.
  4. The power of arrest given to high-ranking officials under Section 19 is not arbitrary.
  5. The summon issued under Section 50 is in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such and hence, not violative of Articles 20(3) and 21 of the Constitution.
  6. The inclusion of minor offences as scheduled offence is reasonable as the offence of money-laundering is an independent offence and the persons involved in the commission of such offence are grouped together as offenders under this Act. There is no reason to make distinction between them insofar as the offence of money-laundering is concerned.
  7. Same reasoning has been applied to uphold Section 4 that makes no distinction between person directly involved in the process or activity connected with the proceeds of crime and the other not so directly involved. It has been held that the punishment under Section 4 is not in relation to the predicate offence, but offence of money-laundering under Section 3 of the 2002 and hence valid.
  8. The vacancies at the appellate Tribunal must be filled at the as otherwise the aggrieved persons have to rush to the High Court on every occasion which indeed is avoidable.
  9. Whether the amendments to PMLA are Finance Bill/Money Bill is a question already pending for consideration by a larger bench in another case. Hence, it was not taken up in this case.

The comprehensive analysis of the judgment can be read here.

Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict

Also read: Supreme Court holds “twin conditions” under Section 45 of PMLA reasonable: Applicability to anticipatory bail, non-cognizable offences discussed; Exception highlighted

Video Explainer: Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict 

[Karti P. Chidambaram v. Directorate of Enforcement, 2022 SCC OnLine SC 1084, order dated 26.08.2022]

For Petitioner(s): Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, Sidharth Luthra, Advocates Arshdeep Singh Khurana, Prateek Chadha, Adit Pujari, Amit Bhandari, Akshat Gupta, Harsh Mittal, Harsh Srivastava, Madhavi Agarwal, Rupali Samuel, Shubhangni Jain, Pankaj Singhal, Hitesh Rai, Aditya Chopra, Ayush Agarwal, Tannavi Sharma, Shally Bhasin (AOR)

For Respondent(s):  Solicitor General Tushar Mehta, Advocates M. K. Maroria (AOR), Deepabali Dutta, Kanu Agarwal, Zoheb Hossain, Rajat Nair

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: While deciding the instant bail application of a 20-year-old boy charged with abetment of suicide of a 16-year-old girl, the Single Judge Bench of Bharti Dangre, J., observed that in order to invoke offence under Section 306, Penal Code, 1860 i.e., abetment to commit suicide; it is necessary to establish its ingredients, i.e., instigation or incitement, for the deceased to commit suicide. The sudden reaction of a 19-year-old boy to the news of pregnancy may fall short of it.

Facts of the case: A 16-year-old girl (now deceased) was pursuing her education in the 11th standard. She told her mother about her developing relationship with the applicant with whom she met on Instagram. The mother of the deceased alleged that the applicant was harassing her daughter as a result of which she was disturbed. On 03-03-2021 the girl hanged herself in the bedroom pursuant to which the mother lodged the complaint.

During the investigation, the deceased's WhatsApp chat with the applicant was revealed which consisted of conversations referring to a pregnancy kit and deceased's apprehension regarding a possible pregnancy. The chats also appeared to reveal the applicant's alleged indifferent and abusive attitude towards the deceased's predicament.

In due course of the investigation, the deceased's autopsy was carried out which did not reveal any sign of pregnancy and cause of death was ascertained as ‘asphyxia due to hanging'.

Observations

  • Perusing the facts and details revealed during the investigation, the Court observed that the deceased had missed her periods by two weeks and thus she took a pregnancy test, which revealed that she was pregnant. Therefore, she established contact with the applicant via WhatsApp and when he expressed an indifferent approach, the girl rife with anxiety, unfortunately decided to take the extreme step of ending her life.

  • The Court further noted that the investigation has been completed. It was pointed out that the postmortem report clearly revealed that the deceased was not pregnant and anxious with thought of conceiving, and on noticing the applicant's unexpected response, she made up her mind to commit suicide.

  • The Court also noted that the applicant was 19 years old when the unfortunate incident took place. The Court further noted the proximate relationship shared between the applicant and the deceased and the applicant's alleged indifferent reaction to the news of pregnancy.

Conclusion and Decision: With the afore-stated observations and considering the young age of the applicant, the Court decided that his incarceration upon the completion of investigation is unwarranted. “He shall ultimately face the consequences of his acts, when he shall face the trial.”

  • The Court also clarified that its observations are restricted only for the purposes of determining the instant application and the Trial Court should not be influenced by these observations.

  • The applicant was granted bail with conditions attached.

[Kunal Chabu Doke v. State of Maharashtra, BAIL APPLICATION NO.3550 OF 2021, decided on 17-08-2022]

Advocates who appeared in this case :

Shantanu Phanse, Advocate, for the Applicant;

S.V. Gavand, APP, Advocate, for the State-Respondent No.1;

Jaideep Thakker, Advocate, for the Respondent No.2.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: Viju Abraham, J., granted anticipatory bail to BJP State General Secretary, Lakshadweep, who was accused of insulting the National Flag by holding it upside down; i.e., by placing green on top while saffron on the bottom.

The applicant is the sole accused of the offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971 for insulting the National Flag. The prosecution relied on the photographs shared on WhatsApp groups to allege that the State General Secretary of BJP, Lakshadweep, was seen to be holding the National Flag with “saffron down” and thereby committed the afore-mentioned offence.

Contesting the allegations against him, the applicant contended that no offence would lie against him since exhibition of the flag was not in a public place. The applicant submitted that as part of the “Har Ghar Tiranga” program envisaged by the Government, he took photographs within the precincts of his house and posted the same in a restricted/private WhatsApp group consisting of BJP members from Lakshadweep which was forwarded to various other WhatsApp groups by someone. Inadvertently and without any intention whatsoever, the photograph was taken while holding the Indian National Flag with “saffron down”.

Noticeably, on realising his inadvertent mistake, the applicant immediately made a public apology by stating that the national flag was not held with “saffron down” with an intention whatsoever to dis-respect the Indian National Flag but was occasioned only due to an inadvertent, unintentional and bona fide mistake.

The application for anticipatory bail was opposed by the Lakshadweep Administration on the ground that the applicant is involved in five other criminal cases and that he had committed the alleged offence.

Considering the facts and circumstances of the case and the nature of the allegations, the Court opined that custodial interrogation of the applicant may not be necessary. Hence, the Court allowed the anticipatory bail application on the following grounds:

  • “Applicant shall surrender before the investigating officer on 29-08-2022, at 11 a.m., and subject himself to interrogation.

  • In the event of arrest in, he shall be produced before the jurisdictional magistrate on the very same day and shall be released on bail, subject to him executing a bail bond for a sum of Rs. 50,000 with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court.

  • He shall not attempt to interfere with the investigation or to influence or intimidate any witness in the alleged crime;

  • He shall not involve in any other crime while on bail.”

Lastly, the Court held that if any of the aforesaid conditions are violated, the investigating officer in may file an application before the jurisdictional Court for cancellation of bail. The Court also clarified that as per the decision in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, the police will be within the power to investigate the matter and if necessary to effect recoveries on the information if any given by the applicant, even when the applicant is on bail.

[Mohd. Kasim H. K v. State (Union Territory of Lakshadweep, Bail Appl. No. 6446 OF 2022, decided on 19-08-2022]

Advocates who appeared in this case :

Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan and Atul Mathews, Advocates, for the Applicant;

Sajith Kumar V., Advocate, for the UT of Lakshadweep.

*Kamini Sharma, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where very serious allegations are made and 16 members from the same family are arrested, an under-trial woman prisoner sought bail, Anoop Kumar Mendiratta, J. grants interim bail for a period of three months since the petitioner is a pregnant woman and is expecting the delivery. It is premised on the principle that every pregnant female deserves the dignity enshrined under Article 21 during motherhood. However, the Court mandated that refusal is permissible in cases of high security risk.

FIR was registered under Sections 363/367/368/326/307/506/34/120-B Penal Code, 1860 (‘IPC') on the statement of injured/victim Raman who had performed marriage with Menka (another victim/injured) against the consent of her parents on 21-12-2021. However, family members of the wife of the complainant abducted the victim and his wife on 22-12-2021 and after brutally beating him up, his private part was amputated with an axe, and he also received stab injuries. Further, the complainant was thrown in a drain from where he was rescued by his brother and was admitted to AIIMS Trauma Centre.

Thus, presently 16 members of the same family have been arrested while 3 of them are still absconding and 2 other family members have also been charge-sheeted without arrest. An application was preferred on behalf of the petitioner under Section 439, Criminal Procedure Code (‘CrPC') read with Section 482 CrPC for grant of interim bail for a period of six months.

The Court noted that the expected date of delivery of the petitioner is 25-08-2022 and the delivery facilities are not available in Central Jail Dispensary and the patient was referred to Deen Dayal Upadhyay Hospital for delivery.

The Court noted that however it is required to give due weightage to the aspects like nature and gravity of the offence and the impact of such an offence committed on the society for consideration of bail. But pregnancy of a woman is a special circumstance which needs to be appreciated, as giving birth to a child while in custody, would not only be a trauma to the mother but also create an everlasting adverse impact on the child, whenever questioned about his birth.

It further noted that every pregnant female deserves the dignity enshrined under Article 21 during motherhood. The Court is expected to take note of the interest of a child, who is not expected to be exposed to prison, until and unless there is a grave danger in releasing the petitioner on bail.

Relevant Provisions

The proviso to Section 437(1) CrPC provides that the condition of not releasing a person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable, if such person is under the age of sixteen years or is a woman or sick or infirm subject to such conditions as may be imposed.

Rule 1459 of Delhi Prison Rules. 2018 provides that as far as possible (provided the prisoner has a suitable option) arrangements for temporary release (or suspension of sentence in the case of a casual offender) will be made to enable a prisoner to deliver child in a hospital outside the prison. Only when there is high security risk in the case of any particular woman prisoner, the facility to deliver child outside the prison shall be denied.

Thus, the Court held that since the petitioner is a pregnant woman and is expecting the delivery, she deserves to be enlarged on interim bail for a period of three months from the date of release on furnishing a personal bond in the sum of Rs.20,000/- (Rupees Twenty Thousand Only) with one surety in the like amount to the satisfaction of the learned Trial Court/MM/Duty MM.

[Kajal v. State, Bail Application No. 2286 of 2022, decided on 18-08-2022]

Advocates who appeared in this case :

Mr. Rakesh Kr. Pant, Advocate, for the Petitioner;

Mr. Laksh Khanna, APP for State with SI Jarnail Singh, PS Rajouri Garden, Advocates, for the Respondent.

*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: Swarana Kanta Sharma, J. declined anticipatory bail to the accused involved in the Jahangir Puri riots considering his conduct and the material on record against him including the statement of the eye-witness as well as the fact that proceeding under Section 83, Criminal Procedure Code is pending along with the custodial interrogation being pending which will be required to unearth the real reason behind the riots.

The instant application was filed under Section 438 Criminal Procedure Code (‘CrPC') seeking anticipatory bail in FIR registered at Police Station Jahangirpuri, for offences punishable under Sections 147/148/149/186/353/ 332/307/323/427/436/109/120-B/34 of Penal Code, 1860 (‘IPC').

On 16-04-2022, a commotion erupted in which two communities pelted stones at each other. On 17-04-2022, the Police from Jahangir Puri Police Station came to the house of the petitioner's eldest son and picked him up and subsequently, he was sent to judicial custody, on allegations of being involved in the Jahangir Puri riots. The applicant submitted that the father of the petitioner had expired on 14-04-2022 and according to Muslim rites and customs, Teeja of his late father was performed on 16-04-2022, which started at around 12 noon to 11 p.m. near Jahangir Puri, Delhi. The petitioner's entire family, including his five sons, were involved in these rites.

Counsel for applicant-accused submitted that that the accused was not involved or seen around or was in the vicinity of place where riots/stampede and there is no CCTV footage pertaining to the involvement of the accused/applicant in the stampede. The accused/applicant is not in possession of the house terrace from which the alleged suspicious material was recovered.

The State submitted that proceedings under Section 82, CrPC have been concluded against the applicant/accused and further proceedings under section 83, CrPC are going to be undertaken on the next date of hearing before the learned Trial Court.

The Court noted that from the facts of the case it is evident that the petitioner has not joined the investigation and is purposefully evading arrest as proceedings under section 82, CrPC have been concluded against him and the proceedings under section 83, CrPC are pending. The applicant has not co-operated with the investigating agency.

The Court remarked though on one hand, it is argued that the applicant was in charge of ensuring peace in the locality, on the other hand, his conduct of not co-operating with the investigating agency or even joining investigation despite the fact that suspicious material has been found on the terrace of his house during the Jahangir Puri riots points to the contrary.

Thus, the Court observed that these are grave allegations of acts which taking advantage of fact of eve of festival of one community deeply scars the communal fabric of the society.

The Court thus held that an individual who is not cooperating with the investigation agencies to ascertain whether he partook in such nefarious activities along with the conduct of the applicant and the material on record against him, including the statement of the eye-witness as well as the fact that his custodial interrogation will be required to unearth the real reason behind the riots, prayer for anticipatory bail was declined.

[Sheikh Ishrafil v. State of (NCT) of Delhi, Bail Application No. 2227 of 2022, decided on 17-08-2022]

Advocates who appeared in this case :

Mr. B.S. Chaudhary and Ms. Sneh Lata Rana, Advocates, for the Petitioner;

Mr. Manoj Pant, APP for the State with ACP Pradeep Kumar Paliwal, Crime Branch, Rohini Sector 18, Advocates, for the Respondent.

*Arunima Bose, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. directed to release a Nigerian National on bail who was arrested in 2020 under the Narcotic Drugs and Psychotropic Substances Act, 1985 after discovering that there was a typing error in the forensic analysis report of the seized substances.

On specific information received that a Nigerian National (the applicant) would be coming on the given spot at the given time to sell cocaine, a team was formed by the ATS and raid was conducted. On personal search the alleged contraband purported to be cocaine concealed in blue coloured plastic bag weighing around 116.19 gms and a transparent plastic pouch containing Saffron coloured heart shape pills weighing around 40.73 gms and some pink coloured Ecstasy tablets weighing around 4.41 gms were recovered. He was arrested and FIR was lodged on 23-10-2020.

Directorate of Forensic Science Laboratory’s report regarding the materials seized was held to be sufficient to charge the applicant under section 8C, 20, 22 of Narcotic Drugs and Psychotropic Substances Act (the Act). After the expiry of more than one year, the Assistant Director realized the mistake committed by him while issuing his report and he addressed a communication to the Sr. PI, ATS clarifying that there was a typing mistake and he expressed his apology while issuing a corrigendum.

The Court in the wake of the corrigendum noted that the substance which was alleged to be contraband and recovered from the applicant at the time when the raid was conducted, does not fall within the purview of the Act.

The Court observed that the error, which is sought to be explained and projected as a typing error, is a blatant mistake, which is admitted by the Assistant Director after more than a year, of incarceration of the applicant. It deserves to be looked at seriously, but for the said report, the applicant could not have been detained.

“Liberty of an individual is of paramount importance and it is the fulcrum of the Indian democracy. Recognized as a fundamental right, enshrined in Article 2, it is available to every person, citizens and foreigners alike. The State Authorities, though supreme and in-charge of the law and order situation, which includes implementation of various statutes intended to achieve specific purpose and particularly a special statute like NDPS are expected to behave in a responsible manner.”

The Court asked the State to come up with a proposal as to how it wants to compensate the applicant for realizing that his incarceration was unnecessary as the raid did not lead to recovery of any contraband/psychotropic substance covered under the NDPS Act. The applicant was granted bail.

[Novafor Samuel Inoamaobi v. State of Maharashtra, Bail Application NO. 2816 of 2021, decided on 10-08-2022]

Ashwini Achari with Taraq Sayed i/b Advait Tamhankar for the applicant.

A.A. Takalkar, APP for the State.

*Suchita Shukla, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. dismissed a bail application of an applicant who was in custody since 29-06-2022 for the offence punishable under Sections 376, 506 of Penal Code, 1860.

Counsel for the applicant submitted that incident took place on 03-12-2020 then on 18-03-2022 prosecutrix pressurized the present applicant for marriage and, thereafter, on 12-04-2022, FIR was lodged. Applicant is a differently abled person working as Canteen Attendant in Ministry of Defence. The prosecutrix was a consenting party and allegation was only in regard to false promise of marriage. It was also submitted that the prosecutrix herself has refused to marry initially and later sent a message that the applicant can marry any other girl.

Government Advocate for the respondent-State submitted that on the last date, applicant had sought time to seek instructions because it was informed that applicant is willing to marry but because of family pressure, he has to wriggle out. It is also submitted that it is not a case of simplicitor consensual pre-marital sex. Both the applicant and the complainant are handicapped and knew each other. Applicant approached the complainant with a promise of marriage and enticed her in physical relationship. Later on, he refused to marry as soon as applicant could get a job with the defence establishment as his expectations were on wings but in the present hearing counsel for the applicant submitted that though sister of the applicant is willing for performance of marriage of the applicant with the complainant but since father of the applicant has refused because of age difference and caste difference, marriage is not possible.

The Court after hearing the parties noted that it was evident that applicant always had knowledge about the age difference between him and the complainant. There was also conscious knowledge of difference in the caste. The only uniting factor was emotional bonding on account of both being differently abled and there was a promise on part of the applicant but later on as soon as he could get a job, he has changed his attitude.

The Court was astonished by the fact that in the 21st century, still in the name of caste and creed, social differentiation is being created. The Court noted that prosecutrix has not been examined in the Court of law and she is a vulnerable witness. The court believed that if applicant is enlarged on bail then there is possibility of witness being tampered with.

The Court thus dismissed that bail application opining that to secure the interest of justice so also interest of a vulnerable witness, this is not the correct stage to extend benefit of bail to the applicant.

[Naresh Rajoriya v. State of Madhya Pradesh, Miscellaneous Criminal Case No. 34551 of 2022, decided on 04-08-2022]

For applicant: Ankit Saxena

For respondent: Aditya Narayan Gupta, Rajkumar Raghuwanshi

*Suchita Shukla, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. while hearing a bail application of a man accused of raping and impregnating a 14-year-old in 2016 citing eight-year delay in trial perused the report on the pending cases of POCSO submitted by the Principal Judge. As per the said Report, there were 7 designated POCSO Courts in the City Civil Court (main branch) and six POCSO Courts at Dindoshi, out of which two courts were vacant.

By the perusal of the report, it was clear that the Special Courts are also under severe pressure of concluding the trials and therefore it is not uncommon as far as this case is concerned that the trial is not yet concluded. The Court noted a startling feature that allotment of 1228 cases with CR No.11 and 1070 cases with CR No.12. In contrast, CR No.9 is shown to have 138 cases and CR No.10 is having 116 cases. The disparity in the distribution of cases was not understood by the Court and the Principal Judge was asked to explain the same.

In relation to the two vacant posts, the Principal Judge was directed to apprise this Court about steps taken to fill up the vacant posts so that necessary directions can be issued for designated two courts for expeditious disposal of the cases, figure of which is alarming and the accused like present applicant are waiting for trial to be concluded since so many years. Also, Principal Judge was asked to give bifurcation of the years from which the cases were pending so that the reasons thereof can be ascertained and direction can be issued by this Court so that trials could be expedited.

Further, the Court opined that necessary directions are required to be issued to the Magistrates in connection with recording statement of victim immediately, as the delay at times, change the course of the trial. Principal Judge was directed to submit further report and analyze causes for delay in concluding the POCSO cases and why concerned courts are unable to adhere to the mandate, provided under the special statute keeping in mind objective underlining the same being less inconvenience and humiliation to be faced by the victim and by ensuring speedy trial.

In relation to the instant case, the Court directed the concerned Court to conclude the trial as expeditiously as possible and in any case not less than 6 months and if the trial was not concluded within six months as directed, the Applicant is at liberty to request for release on bail on the ground of long pendency of the case.

Further matter to be heard on 29-08-2022.

[Azaruddin Nihaluddin Mirsilkar v. State of Maharashtra, 2022 SCC OnLine Bom 1627, decided on 01-08-2022]

Advocates who appeared in this case :

Mr B.B. Tiwari with Azim Kazi and Aaisha F., Advocates, for the Applicant;

Smt Rutuja Ambekar, APP, Advocate, for the State.

*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where the mother (‘applicant’) who is in judicial custody for an alleged grave offence seeks interim bail to get her child admitted in a school, Swarana Kanta Sharma, J. took suo motu cognizance and directed Delhi police to ensure admission of the child recognizing right to education as a fundamental right of the child. The bail application was thus directed to be withdrawn and a compliance report was sought regarding admission.

The present application was filed by the petitioner seeking interim bail for two weeks in FIR registered under sections 302/365/292/397/411/120-B/201 & 34 Penal Code, 1860 (‘IPC’) for alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain. The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11-07-2021. The application was preferred by the mother of the child on the grounds that she is concerned about the admission to a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted to any school.

It was brought to the attention of the court that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. Investigating Officer (IO) also verified the same stating that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.

The Court noted that once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. Thus, the child must get admitted in a school at the earliest so that the shadow of nothing unpleasant happening falls upon the child’s life to darken her future.

The Court further noted that in the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is the education of the child. Thus, court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year 2022-23.

The Court directed the SHO concerned to get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education and asked the principal of the school to extend full cooperation for the admission of the child. The compliance report is directed to be filed within 10 days.

[Kamini Arya v. State of NCT of Delhi, 2022 SCC OnLine Del 2367, decided on 03-08-2022]

Advocates who appeared in this case :

Ms. Anu Narula, Advocate, for the Petitioner;

Mr. Manoj Pant, APP for the State with Inspector Devendra Singh, P.S. Mohan Garden, Advocates, for the State.

*Arunima Bose, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While dealing with a corruption case, Lisa Gill, J., allowed the bail petition preferred by the petitioner against the trial upon FIR dated 24-05-2022 and held that as the trial is not likely to conclude in the near future, no useful purpose would be served by keeping the petitioner incarcerated.

The FIR was registered under Sections 7 and 8 of the Prevention of Corruption Act, 1988 on the statement of one serving Superintendent Engineer of the Punjab Health System Corporation.

Facts:

The petitioner is a dentist by profession and also is an elected representative member of the Legislative Assembly in the State of Punjab. At the time of FIR, he was holding the portfolio of the Minister of the Department of Health. As per the FIR, the Officer on Special Duty (‘OSD’) with the petitioner called the complainant to set up a meeting with the petitioner. Due to some hurry, the petitioner left the meeting telling the complainant that whatsoever is told by the OSD be deemed to be said by the petitioner.

Arguments:

The counsel for the petitioner submits that due to this falsely implicated FIR, the image of the petitioner is tarnished, and his popularity is diminished. He submits that the allegations in the FIR do not constitute an offence. He also contends that the allegations are unsubstantiated by any evidence and the entire case is set up. He contends that the entire case is based on the telephonic conversation between a person who claims to be the OSD of the petitioner and the complainant. He also submits that the petitioner has been in custody since 24-05-2022. He points out that the complainant has never asked for recovery and neither has he sought it in this case. It was brought to the notice of the Court that the petitioner has no criminal history.

The respondent contended that the OSD, in the meeting, asked for a huge amount which the complainant refused to pay as he did not have that much money and agreed upon a sum that he could arrange to save himself from harassment. The complainant also stated that he was threatened to the extent that his career would be spoiled if he refused to pay the money. The complainant also mentioned that he is about to get retired, so not to spoil it and put such a person on deputation who agrees to pay the bribe amount. Hence, the complainant through this to take action against the petitioner and the OSD.

Observation and Analysis:

The Court observed that there is no reference to any evidence on record except for the said conversation. On the information given by the Advocate General, Punjab, the Court observed that the investigation is complete, and it is verified that the petitioner does not have any criminal record. Hence, the Court while allowing this petition held that the trial is not likely to conclude in the near future and no useful purpose would be served by keeping the petitioner incarcerated any longer.

[Vijay Singla v. State of Punjab, 2022 SCC OnLine P&H 1858, decided on 08-07-2022]

Advocates who appeared in this case :

For the Petitioners: Mr. Vinod Ghai, Senior Advocate, assisted by

Ms. Kanika Ahuja, Advocate

Ms. Kirti Ahuja, Advocate

Mr. Edward Augustine George, Advocate

Ms. Mahima Dogra, Advocate

For the Respondent: Dr. Anmol Rattan Singh, Advocate General, Punjab, assisted by

Mr. V.G. Jauhar, Senior DAG, Punjab

Mr. Pratham Sethi, Advocate.