Case BriefsHigh Courts

Madhya Pradesh High Court: S.A. Dharmadhikari, J., dismissed the instant petition filed under Articles 226 and 227.

The facts of the case follow as, the respondent, who was a person of criminal antecedents, had come with his relatives armed with Pharsas and Guns to the petitioner and threatened to eliminate him and his family when the petitioner demanded balance amount of the sale proceeds of land sold to the respondent by father of the petitioner.

The petitioner submitted that, he had approached the Police Station but his report was not recorded, being aggrieved by that a representation had also been made to the Superintendent of Police for taking action against the miscreants but no action had been taken. Therefore, the petitioner requested the Court that a writ of mandamus may be issued to the Superintendent of Police to decide the said representation and take action against the respondent and also provide adequate protection to the petitioner from the respondent.

The counsel for the State, Abhishek Singh Bhadoriya argued that, the relief sought by the petitioner could not be granted in view of the fact that the petitioner had an alternative remedy of filing complaint before the Magistrate under Section 156(3) of the CrPC and the same was not availed by him.

The Court, relied on Sakiri Vasu v. State Of U.P., (2008)2 SCC 409, wherein, the Supreme Court held that, “if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result, it is open to the aggrieved person to file an application under Section 156 (3) CrPC before the learned Magistrate concerned the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made. The Magistrate can also monitor the investigation to ensure a proper investigation.”

 In view of the above, the Court dismissed the petition stating that, the High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC, simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC. However, the Court further directed that, if the petitioner approaches the Magistrate, the Magistrate concerned shall proceed in accordance with law including the precedents enumerated hereinabove. [Bharat Singh Gurjar v. State of M.P.,  2020 SCC OnLine MP 2924, decided on 22-12-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sunil Dutt Yadav and P. Krishna Bhat, JJ., emphasized on the importance of jurisdictional police to register FIR and conduct further investigation of the case.

The facts of the case are such that the instant writ petition was filed in the nature of Habeus Corpus under Article 226 of the Constitution of India, praying to issue a writ or order or direction for production of her son Suresh who was unlawfully taken away by SHO, Gogi Police Station i.e Respondent 3 in the instant case.

On the notice by the Court, Suresh was produced before the Court on 03-11-2020 and it was admitted by Respondent 3 that the petitioner Tarabhai had approached him in the police station with a grievance that her son had been abducted and thereafter he was not found. Inspite of Respondent 3 being conscious that the incident reported was cognizable in nature he did not register an FIR.

Counsel representing the defaulting respondent 3 submitted that a lenient view must be taken for the said violation of the procedure notwithstanding the serious implications for the liberty of Suresh and that his client is prepared to file an undertaking to do some community service to atone for the same.

The Court observed that the entire development in the case after Suresh going missing discloses to us a very disturbing facet of the functioning of the police stations in this area in the state. The Court further observed that the problem primarily is one of police officers not complying with the procedure prescribed under the Code of Criminal Procedure, which places a high premium on the guarantee of liberty of the individuals.

The Court thus held that if the facts disclosed to Respondent 3 amounted to an offence taking place within the limits of his police station, then he should have proceeded with the investigation of the case and if the offence disclosed took place outside the jurisdiction, then he was obliged to transfer the FIR to the jurisdictional police station for further investigation of the case. The Court further stated that Respondent 3 has overlooked the mandate of law in as much as he has not made an entry in the Station House diary regarding the substance of the petitioner and her son Suresh.

The Court directed the respondent 3 to comply with the undertaking by cleaning the front of his police station for a period of one week and further directed the Superintendent of Police, Kalaburagi District to hold a Workshop/ Orientation course to all the police officers working within the Kalaburagi District on the subject of “Zero FIR” and other provisions under the CrPC, 1973 pertaining to registration of FIR and investigation of cases.

In view of the above, and Suresh being produced before the Court, writ petition was disposed off.[Tarabai v. The State of Karnataka,  2020 SCC OnLine Kar 2286, decided on 17-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: R. Pongiappan, J., addressed the Criminal Original Petition seeking to quash the First Information Report of first respondent police as the same was alleged to be illegal.

The instant petition was filed to quash the FIR. The said FIR was registered for the offences punishable under Sections 294(b), 323, 324, 506(1) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002.

Petitioner Counsel submitted that petitioner 1 is the husband of the second respondent. Petitioner 1 had filed the original petition under Section 13(1)(1-b) of the Hindu Marriage Act, 1955 to seek dissolution of marriage. The said petition has been pending for commencement of trial.

In view of the above circumstances, to threaten the petitioners, respondent 2 lodged a false complaint and first respondent police without making my enquiry registered a case.

Analysis and Decision

Bench first and foremost referred to the Supreme Court decision on Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350, wherein it was held that:

“5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424. disclosed, there would be no justification for the High Court to interfere.”

Bench on perusal of the facts of the case found that the averments made in the FIR clearly constituted the prima facie case for offences under Sections 294(b), 323, 324, 506(1) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002,

Court further relied on the Supreme Court decision in CBI v. A. Ravishankar Prasad, (2009) 6 SCC 351, wherein it was held that:

“Inherent powers of High Court under Section 482 CrPC are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. These inherent powers can be exercised in the following category of cases: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Extraordinary power under Section 482 CrPC should be exercised sparingly and with great care and caution.”

Hence, relying on the above-stated decisions, the Court expressed that:

“…only in the circumstances that registration of case itself is an abuse of process of law, inherent powers can be exercised to prevent abuse of process of law.”

Petitioners in the instant case could not prove that the registration of the FIR was an abuse of process of law, therefore, Criminal Original Petition was dismissed. [Karunamoorthi v. State, 2020 SCC OnLine Mad 6026, decided on 02-12-2020]


Advocates for the parties:

For Petitioners: W. Camyles Gandhi

For Respondent 1: S.Karthikeyan Additional Public Prosecutor

For Respondent 2: K.Vasanthanayagan

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ has held that the true test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.

“The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence.”

  1. FIR or the First Information Report, is neither defined in the Criminal Code nor is used therein, albeit it refers to the information relating to the commission of a cognisable offence. This information, if given orally to an officer in-charge of the police station, is mandated to be reduced in writing.
  2. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. Information to be recorded in writing need not be necessarily by an eye-witness, and hence, cannot be rejected merely because it is hearsay. Section 154 does not mandate nor is this requirement manifest from other provisions of the Criminal Code. Thus, at this stage, it is enough if the police officer on the information given suspects – though he may not be convinced or satisfied – that a cognisable offence has been committed.
  3. Section 154 of the Criminal Code, in unequivocal terms, mandates registration of FIR on receipt of all cognisable offences, subject to exceptions in which case a preliminary inquiry is required[1].
  4. There is a distinction between arrest of an accused person under Section 41 of the Criminal Code and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Criminal Code, which directs registration of FIR in case of cognisable offences, and protection of individual liberty of those persons who have been named in the complaint.
  5. FIR is not an encyclopaedia disclosing all facts and details relating to the offence[2]. It is not meant to be a detailed document containing chronicle of all intricate and minute details. FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant’s evidence in the court[3].
  6. Even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence[4]. Thus, the information disclosing commission of a cognisable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law.
  7. As per clauses (1) (b) and (2) of Section 157 of the Criminal Code, a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration, the law mandates that the officer can start investigation when he has reason to suspect commission of offence.
  8. Requirements of Section 157 are higher than the requirements of Section 154 of the Criminal Code. Further, a police officer in a given case after investigation can file a final report under Section 173 of the Criminal Code seeking closure of the matter.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]


[1] Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

[2] Ibid

[3] Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537

[4] Superintendent of Police, CBI and Others v. Tapan Kumar Singh, (2003) 6 SCC 175

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., denied bail to the petitioner who is accused of commission of offence under Section 315 (act done with intent to prevent child being born alive or to cause it to die after birth) and Section 304 (punishment for culpable homicide not amounting to murder) of the Penal Code, 1860.

The instant application was filed under Section 439 of the Criminal Procedure Code, 1973 read with Section 482 CrPC seeking regular bail in the FIR registered under Section 315 of Penal Code, 1860.

Contentions

Petitioners Counsel, Madhusmita Bora, Advocate submitted that the petitioner’s age is 70 years and in terms of the decision in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, he ought not to have been arrested. Further, it was added that the petitioner is otherwise qualified as a medical surgeon and performed the surgery at the request of the hospital concerned. 

Additionally, it was submitted that the FIR was of the year 2015, but petitioner got arrested in the year 2020.

Neelam Sharma, APP for State submitted that though the FIR was initially registered under Section 315 IPC subsequently, Section 304 IPC was added as the patient had expired. Further, it was added to the submissions that, petitioner was neither on the panel of the hospital nor even a visiting surgeon.

Petitioner, knowing fully well that he was not a qualified Obstetrician & Gynaecologist, still performed the surgery when there was no urgency as the pregnancy was only 19-20 weeks old, which led to the death of the patient.

A complaint was made to Delhi Medical Council, which, after Disciplinary proceedings found all the Doctors concerned guilty of negligence. In fact, it was found that co-accused, Dr Hitender Vashisht, the In-charge/Director of R.P. Memorial Hospital was not even registered with the DMC as he is not the holder of qualification in Modern Scientific System of Medicine and should refrain from pre-fixing ‘Dr.’ to his name.

Petitioners Counsel made a bald assertion that no Doctor ought to be arrested in a case of medical negligence however, it is seen that in the present case, the Investigating Officer has taken an independent opinion from Delhi Medical Council, which conducted the Disciplinary proceedings.

It has been observed that the Disciplinary Committee, comprising of four Doctors, found the petitioner guilty along with other co-accused persons.

In fact, the Disciplinary Committee recommended that the name of the petitioner be removed from the State Medical Register of the Delhi Medical Council for a period of 180 days. The decision was confirmed by Delhi Medical Council and the petitioner’s name was removed for 180 days.

Supreme Court’s decisions in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528State U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, have considered parameters of a bail application.

Bench observed that the petitioner did not deny the fact that he had performed the alleged surgery on the deceased.

Hence on taking into consideration the Disciplinary Committee’s report and its recommendations, Court prima facie opined that the there was reasonable ground to believe that the petition had committed the offence.

Bail application to the petitioner was denied.[Suresh Chandra Gupta v. NCT of Delhi, 2020 SCC OnLine Del 1594, decided on 09-12-2020]

Case BriefsSupreme Court

Supreme Court: The 2-judge bench of AM Khanwilkar and Sanjiv Khanna, JJ has refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation.

The Court, however, accepted the prayer for transfer of all pending FIRs in relation to and arising out of the telecast/episode dated 15th June 2020 to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered and also asked the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.

Background

On 15th June, 2020, Devgan had hosted a debate on his show ‘Aar Paar’ on News18 India on the Places of Worship (Special Provisions) Act, 1991 which, while excluding Ayodhya, prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947. Some Hindu priest organisations had challenged vires of this Act before the Supreme Court, and reportedly a Muslim organization had filed a petition opposing the challenge.

The petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”. Translated in English the words spoken would read – “Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed,” imputing that ‘the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.’

Devgan later tweeted an apology along with a clarification that he has faith in Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also gone on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship. Expressing regret, he said that the attributed words were uttered inadvertently and by mistake; in fact, he wanted to refer to Alauddin Khilji and not Gareeb Nawaz Khwaja Moinuddin Chishti.

Here’s what he tweeted:

Analysis

On refusal to quash the FIRs

Rejecting the contention that criminal proceedings arising from the impugned FIRs ought to be quashed as these FIRs were registered in places where no ‘cause of action’ arose, the Court held that Section 179 of the Criminal Code provides that an offence is triable at the place where an act is done or its consequence ensues.

“The debate-show hosted by the petitioner was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India and were affected by the utterances of the petitioner; thus, the consequence of the words of the petitioner ensued in different places, including the places of registration of the impugned FIRs.”

After going through the relevant portions of the transcript of the debate anchored by the petitioner, the Court noticed that it was apparent that Devgan was an equal co-participant, rather than a mere host. The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be evaluated before the court can form an opinion on whether an offence is made out. The evaluative judgment on these aspects would be based upon facts, which have to be inquired into and ascertained by police investigation. ‘Variable content’, ‘intent’ and the ‘harm/impact’ factors, as asserted on behalf of the informants and the State, are factually disputed by the petitioner. In fact, the petitioner relies upon his apology, which as per the respondents/informants is an indication or implied acceptance of his acts of commission.

The Court, hence, concluded that it would not be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects.

Directing that no coercive steps for arrest of the petitioner need be taken by the police during investigation, the Court said that

“In case and if charge-sheet is filed, the court would examine the question of grant of bail without being influenced by these directions as well as any findings of fact recorded in this judgment.”

On transferring and clubbing all FIRs with the first FIR registered at P.S. Dargah, Ajmer, Rajasthan

In Babubhai v. State of Gujarat, (2010) 12 SCC 254 the test to determine sameness of the FIRs has been elucidated as when the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction. If the answer to the question is affirmative, then the second FIR need not be proceeded with.

Further, in T.T. Antony v. State of Kerala, (2001) 6 SCC 181 it was held that the subsequent FIRs would be treated as statements under Section 162 CrPC.

Relying on this the Court directed that all the subsequent FIRs be transferred to PS Dargah, Ajmer and the statement of the complaint/informant forming the basis of the transferred FIRs would be considered as statement under Section 162 of the Criminal Code and be proceeded with.

Justifying it’s decision, the Court said,

“This would be fair and just to the other complainants at whose behest the other FIRs were caused to be registered, for they would be in a position to file a protest petition in case a closure/final report is filed by the police. Upon filing of such protest petition, the magistrate would be obliged to consider their contention(s), and may even reject the closure/final report and take cognizance of the offence and issue summons to the accused. Otherwise, such complainants would face difficulty in contesting the closure report before the Magistrate, despite and even if there is enough material to make out a case of commission of an offence.”

It was further explained that Section 186 CrPC relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of FIR but before charge-sheet is submitted to the Magistrate.

“In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused.”

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]


*Justice Sanjiv Khanna has penned this judgment

Also read: Freedom & rights cannot armour those who promote & incite violence| 15 notable excerpts on ‘hate speech’ from Supreme Court’s verdict in Amish Devgan case

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ has granted anticipatory bail to Punjab’s former DGP Sumesh Singh Saini in Balwant Singh Multani disappearance case and has directed,

“… he shall be released on bail on furnishing personal bond in the sum of Rs.1,00,000/­ (Rupees one lakh only) and two sureties of the like amount and to surrender the passport and to cooperate with the investigation (however without prejudice to his rights and contentions in the pending proceedings to quash the impugned FIR).”

Background

Allegedly, in the year 1991 one Balwant Singh Multani was illegally abducted from his residence at Mohali by a team of officials operating under the instructions of the Saini; that he was severely and inhumanly tortured while in custody, by and at the behest of Saini. It is further alleged that a false and fabricated FIR might have been registered at the instance of the Saini to suggest that the victim was brought to the police station Qadian from where the victim was alleged to have escaped.

His brother had lodged an FIR against Saini on 06.05.2020 initially for the offences punishable under Sections 364, 201, 344, 219 and 120­B of the IPC, and subsequently the offence punishable under Section 302 IPC was added on  the basis of the  statements of the two co-accused who subsequently turned as approver.

The Additional Session Judge and the Punjab and Haryana High Court dismissed Saini’s plea for anticipatory bail.

Relevant grounds on which anticipatory bail was sought

Senior Advocate Mukul Rohatgi, appearing for Saini, argued before the Supreme Court that “the present FIR is filed with a malafide intention to harass the appellant and at the instance of the present party in power in the State.” Even otherwise the present FIR is not maintainable as being a second FIR on the same set of facts and has been registered after delay of 29 years of the alleged incident. It was submitted that earlier attempt to falsely implicate the appellant failed and a similar FIR for the very incident in question and with somewhat similar allegations came to be quashed by this Court in the case of State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770.

It was further submitted that the informant heavily placed reliance upon the liberty reserved in   favour of the father of Balwant Singh Multani to file fresh proceedings, however, during his life time the father of Balwant Singh Multani did not initiate any fresh proceedings and six years after the death of the father of Balwant Singh Multani, the present FIR has been filed after 9 years of the judgment in Davinder Pal Singh Bhullar.

Analysis

Considering the fact that the impugned FIR was lodged by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision in Davinder Pal Singh Bhullar and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, the Court observed that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C.

“Many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail.”

On the reliance by the Informant and the State on the observations made in Davinder Pal Singh Bhullar and the liberty reserved in para 117 to the father of the deceased who earlier filed the petition under Section 482 Cr.P.C. to take recourse to fresh proceedings, if permissible in law, the Court noticed that

“… the said liberty was as such in favour of the father of the deceased who in the earlier round of litigation before the High Court filed the petitions under Section 482 Cr.P.C. This Court reserved the liberty in favour of the father of the deceased to take recourse to fresh proceedings by specifically observing that if permissible in law.”

The Court took note of the fact that the father of the deceased died in the year 2014. Till 2014, he did not initiate any fresh proceedings.

“After a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra), all of a sudden, now the informant – brother of the deceased has woken up and has   initiated the present criminal proceedings. Whether the fresh/present proceedings are permissible in law are yet to be considered by this Court in the pending proceedings for quashing the impugned FIR.”

Conclusion

Hence, considering that Saini has retired in the year 2018 as Director General of Police, Punjab after 30 years of service and the alleged incident is of the year 1991 and even in the present FIR initially there was no allegation for the offence under Section 302 IPC and the allegations were only for the offences under Sections 364, 201, 344, 330, 219 and 120-B of the IPC, for which there was an order of anticipatory bail in Saini’s favour and subsequently the offence under Section 302 IPC has been added on the basis of the statements approvers only, the Court held that Saini has made out a case for anticipatory bail.

[Sumedh Singh Saini v. State of Punjab,  2020 SCC OnLine SC 986, decided on 03.12.2020]


*Justice MR Shah has penned this judgment.

For appellant: Senior Advocate Mukul Rohatgi, 

For State: Senior Advocate Sidharth Luthra, 

For original informant: Senior Advocate K.V. Vishwanathan

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court failed to  to evaluate even prima facie of the most basic issue thereby refusing bail to the accused, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has reminded the High Courts and District Courts of their duty to ensure human liberty.

In the judgment running into 55-pages, here is what the Court said:

Fair Investigation

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

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

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

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

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

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

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

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

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

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

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

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

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here

Also read: Anvay Naik Suicide|High Court abdicated it’s duty by failing to make prima facie evaluation of FIR. Here’s why SC granted interim bail to the accused

SC grants interim bail to 3 accused in Anvay Naik suicide case. Calls Bombay HC order erroneous

Case BriefsSupreme Court

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

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

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

The Court had, in order dated 11.11.2020 said that

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


Background


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

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

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


Analysis


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

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

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

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

Prima Facie evaluation of the FIR and the grant of bail

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

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

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

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

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

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

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

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

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

Human liberty and the role of Courts

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

Fair Investigation

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

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

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

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

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

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

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

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

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

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

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

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


Direction


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

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]


*Justice Dr. DY Chandrachud has penned this judgment 

For Arnab Goswami: Senior Advocate Harish N. Salve

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

For Feroz Shaikh: Senior Advocate Gopal Sankaranarayanan

For Neetish Sarda : Senior Advocate Mukul Rohatgi

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Naqvi and Vivek Agarwal, JJ., observed that,

Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.

The writ petition was filed seeking a writ of mandamus directing the respondent concerned, not to arrest the petitioners under Sections 363, 366, 352, 506 of Penal Code, 1860 and Sections 7 and 8 POCSO Act.

Salamat Ansari and Priyanka Kharwar along with two others invoked the extraordinary jurisdiction of this Court for seeking quashment of an FIR under Sections 363, 366, 352, 506 IPC and Sections 5 and 6 of POCSO Act on the premise that the couple is of the age of majority, competent to contract a marriage, performed Nikah as per Muslim rites and rituals, after Priyanka Kharwar renounced her Hindu identity and embraced Islam.

Further, it was submitted that the couple had been living together as husband and wife since last one year peacefully and happily. FIR was lodged by the father of petitioner 4 prompted by malice and mischief only with a view to bringing an end to marital ties, no offences are made out, hence FIR be quashed.

DECISION

The mere fact that this petition is filed and supported by an affidavit of Priyanka Kharwar alleged victim, goes to show that she is voluntarily living with Salamat Ansari as a married couple.

Age of Priyanka Kharwar was not in dispute as she was reported to be around 21 years, therefore, petitioners 1 to 3 cannot be made accused of committing an offence under Sections 363 or 366 IPC, as the victim on her own left her home in order to live with Salamat Ansari. Similarly, as Priyanka Kharwar was not found to be juvenile, the offence under Sections 7/8 POCSO Act was not made out.

Hence, the allegations made were malafidely motivated with a view to implicate the family.

Bench stated that,

“Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year.”

Adding to the above, it was observed that the Courts and the Constitutional Courts, in particular, are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India.

Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.

Court stated that it fails to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have an objection to the relationship of two major individuals who out of their own free will are living together.

By relying on the Supreme Court decision of Shaffin Jahan v. Asokan K.M., (2018) 16 SCC 368, it was stated that the Supreme has consistently respected the liberty of an individual who has attained the age of majority.

Supreme Court in the decision of Shakti Vahini v. Union of India, (2018) 7 SCC 192, came down heavily on the perpetrators of “honour killings” which the Court found not only horrific and barbaric but also interfering with the right to choose a life partner and the dignity of an individual.

Bench stated that though the above observations were made in connection with ‘honour killings’ but the Court is of the firm view that the said principle would apply in the present context too where a relationship of two matured individuals is sought to be jeopardized at the whim and caprice of a parent.

Right to choose a partner irrespective of caste, creed or religion, is inhered under the right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.

Before parting with the present decision, Court reiterated that the FIR is being quashed primarily on the ground that no offences are made out, as two grown-up individuals have been living together for over a year of their own free will and choice.

Before concluding, however, the Court expressed that it expects the daughter to extend all due courtesy and respect to her family. [Salamat Ansari v. State of U.P., 2020 SCC OnLine All 1382, decided on 11-11-2020]


Advocates who appeared for the parties:

Counsel for the petitioner: Rakesh Kumar Mishra

Counsel for the Respondent: G.A., Ritesh Kumar Singh.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition based on the settled principle of law.

The present writ petition has been filed by the petitioners seeking quashment of FIR No. 02/2020 dated 10-01-2020 for offence punishable under Section 420 read with Section 34 of Penal Code, 1860 i.e. IPC registered against them by Respondents 2 and 3 at police Station Gol Bazar, Raipur on the ground that the dispute, being a commercial dispute, has been settled amicably between the petitioners and respondents 2 and 3 and the offence under Section 420/34 of the IPC is compoundable with the leave of the Court.

Counsel for the petitioners submitted that as per the agreement and statement of recorded before the Additional Registrar (Judicial) it was categorically stated that the dispute has been settled between them amicably and moreover, the offence registered against the petitioners under Section 420/34 IPC, being compoundable, FIR registered against the petitioners deserves to be set aside.

Counsel for the respondents submitted that they have no objection if the FIR registered against the petitioners is quashed as the dispute has been settled amicably.

The Court relied on judgment B.S. Joshi v. State of Haryana (2003) 4 SCC 675, Gian Singh v. State of Punjab (2012) 10 SCC 303 and Jitendra Raghuvanshi v. Babita Raghuvanshi (2013) 4 SCC 58 and observed that

“15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.”

 16. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders.”

The Court thus held that offence under Section 420/34 of the IPC is compoundable with the leave of the Court and taking into consideration that the parties have settled their dispute amicably as per the agreement that they entered into and further considering that respondent 2 has filed his affidavit and respondent 3 has recorded his statement before the Assistant Registrar (Judicial) wherein they have clearly stated that they have compromised and settled the dispute amicably outside the Court.

In view of the above, offence was compounded, FIR quashed and petition disposed off.[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]


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Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J., quashed a rape case against a boy which was filed by his minor wife.

The FIR mentioned that the prosecutrix was married to the petitioner- accused on 07-02-2015 at the age of 11 years and that she was forced to maintain the physical relationship by her husband against her wishes after 2016 when she was taken to her in-law’s house. During the pendency of the petition, an affidavit was filed by the complainant, stating that the dispute had been amicably resolved between the families and she does not want to further pursue the criminal prosecution and counsel for both respective parties have submitted that in the respective communities of both the boy and the girl, the custom of child marriage was still prevailing and hence, the prosecutrix and the petitioner were married by their parents when they were minors.

The Court after perusing the records after the completion of investigation observed that it was an established fact that the parents had solemnized the marriage of the accused and prosecutrix when they were minor and the proceedings under the Prohibition of Child Marriage Act, 2006 have also been initiated. Further, the Court was not detrimental or adverse to the settlement arrived at between the families, stating that the reckless and irresponsible demeanor of the parents of both the boy and the girl cannot be ignored. The Court further stated,

The parents of the prosecutrix were well aware of all the consequences of getting her married at the age of eleven. Uniformly, the parents of the petitioner are also responsible. Both the parents have imprisoned the minors in marriage and forced them to develop relationship of husband and wife which is a gross violation of their human rights. They are forced by the parents to face the rigors of married life at the tender age despite their being a prohibition under the law. Thus, the genesis of the impugned FIR lies in the child marriage arraigned by the respective parents.

The Court opined that the criminal machinery alleging such serious offences under Penal Code, 1860 and POCSO cannot be allowed to be misused and the parents of such children who resort such tactics cannot be let-off easily without fastening any accountability.

The Court while quashing the FIR against the boy imposed cost on the families of the prosecutrix and the petitioner holding them responsible for ruining their childhood by dragging them in such a disreputable controversy. The Court quoted from the judgment of the Supreme Court in Aarushi Dhasmana v. Union of India, (2013) 9 SCC 475 where K.S.P. Radhakrishnan, J., had observed,

            “Law of this land has always recognised the rights of parents with their wards/minors and first and foremost consideration of the Court is “welfare of the children”, which overrides the views or opinions of the parents.”[Applicant v. State of Gujarat, R/Criminal Misc. Application No. 12832 of 2020, decided on 20-10-2020]


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Case BriefsHigh Courts

Kerala High Court: P. Somarajan J., allowing the present criminal miscellaneous case, clarified the law related to anticipatory bail under Section 438 of Criminal Procedure Code, 1973.

Brief Facts

The State Government came up challenging the anticipatory bail granted under Section 438 CrPC. by the Sessions Judge on the simple reason that no crime was registered against the accused/first respondent till that time. Interestingly, within one month the first respondent was impleaded in the array of accused. The crime was earlier registered on the allegation of offence under Section 307, 324 read with Section 34 Penal Code, 1860 but later, Section 326 IPC was incorporated as well.

The present application is submitted both under Section 482 and 439(2) CrPC on the allegation that the earlier order granting anticipatory bail was used by the first respondent to avoid his arrest in connection with his impleadment subsequently as an accused in the existing crime.

 Issue

Whether an anticipatory bail, allowed in the absence of an FIR, permissible as per laws of Criminal Procedure?

 Observations

The Court made the following observation in addition to its decision;

“No blanket order should be passed under Section 438 Cr.P.C. to prevent the accused from being arrested when there is no crime registered against him. The procedure to be adopted is to direct the investigation to comply with the requirement under Section 41 A Cr.P.C., before effecting the arrest of accused so as to enable him to exhaust the remedy under Section 438 Cr.P.C. The defect crept in the order cannot be cured under Section 439(2) Cr.P.C. because of the reason that the accused will get a right to exhaust the remedy under Section 438 Cr.P.C. based on the subsequent accusation and it cannot be curtailed by invoking the jurisdiction under Section 439(2) Cr.P.C. By reserving the right of the first respondent to exhaust the remedy under Section 438 Cr.P.C. based on the present accusation, it is fit and proper to set aside the order granting anticipatory bail on the ground of non-registration of crime.”

 Decision

While allowing the instant petition, the Court said, “When no crime was registered against the first respondent, it is not permissible to grant anticipatory bail, on the reason that it would act as a blanket as against all sort of accusations which may arise in future against the said person.”[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]


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Case BriefsHigh Courts

Gujarat High Court: A.C. Rao, J., dismissed a bail application in connection with an FIR registered for the offences under Sections 302, 201 and 114 of the Penal Code, 1860.

The counsel for the applicant, B.M. Mangukiya contended that the victim was drunk and fell down in the well, but the complainant had got up the story of throttle and thrown. It was vehemently contended that there was no mark of resistance found on the body of the victim, only one nail injury was found on the neck of the victim, so it is an only plausible explanation to the fact that he was not killed as relied on the prosecution and therefore, the present application may be released on bail. The counsel for the respondent, H.K. Patel submitted that this was a successive bail application and previous bail application was withdrawn. In the present application, the applicant has not stated anything about the previous withdrawal, so the successive bail application was not maintainable, except there is a change in circumstances.

The Court referred to the judgment of the Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 where it was held that,

“this Court also observed that though the accused has a right to make a successive application for grant of bail, the Court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases, the Court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier application.”

The Court while dismissing the application observed that the previous bail application was withdrawn after the filing of charge sheet and this bail application is also filed after filing of charge sheet. The advocate for the petitioner has not been able to point out any change in the circumstances, thus no ground is made out by the petitioner.[Rakesh Makhabhai Bamaniya v. State of Gujarat, 2020 SCC OnLine Guj 1801, decided on 20-10-2020]


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Case BriefsHigh Courts

Madhya Pradesh High Court: Akhil Kumar Srivastava, J., dismissed the appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for the release of the appellant-accused in connection with the FIR registered for offence punishable Sections 363, 366, 344, 328, 506, 376(2)(N) and 376(D) of Penal Code, 1860 and Sections 3(1)(w)(i) and 3 (2) (v) of SC/ST Act.

The instant appeal has been filed against the impugned order dated 09-06-2020 passed by the Special Judge, S.C./S.T (Prevention of Atrocities) Act, Jabalpur in B.A. No. SCATR/20260/18 whereby the court has dismissed the application filed by the appellant-accused under Section 439 of CrPC.

Counsel for the appellant, Savita Choudhary has submitted that the appellant has been falsely implicated and he has been languishing in custody since the past two years with the trial still pending. Further, it is brought to the Court’s notice that there is a delay in filing the FIR for which no reasonable explanation has been tendered from the respondent’s end. The victim is married to the appellant and to substantiate the same, an affidavit sworn by the victim has been presented.

Counsel for the respondent, Anuj Singh vehemently opposed the present appeal and prayed for its rejection on the ground that gang raPe is a crime of heinous nature and the appellant has legitimately been implicated based on the victim’s statement under Section 164 of the CrPC. which should suffice.

Upon careful perusal of the facts, circumstances and the arguments advances the Court observed that a clear case of gang rape is made out and the delay in lodging the FIR is not a sufficient ground which could compel them to discard the entire case of the prosecution. It is also not absolutely necessary that the crime be medically corroborated. The Court relied heavily on the victim’s statement recorded under Section 164 of the CrPC and other relevant materials available.

In view of the above, the appeal has been dismissed by the Court for lack of merit.[Harishchandra v. State of M.P., 2020 SCC OnLine MP 2321, decided on 16-10-2020]


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Case BriefsHigh Courts

Gujarat High Court: Ilesh J. Vohra, J., heard a matter related to offences alleged under Sections 376 (2) (n), 377, 406, 498(A), 323, 294(b), 506(2) and 114 of the Penal Code, 1860 and under Section 4 of the Dowry Prohibition Act which was filed seeking to quash and set aside the impugned FIR and consequential proceedings.

The wife in the FIR had alleged that her husband right from day one of their marriage indulged in sexual acts with her against her wishes and raped her. It was alleged that, her sister-in-law and her three daughters as well as another sister in law though residing outside the country or in other States in India, also harassed her on domestic issues and demanded dowry, as a result, the complainant came to her parental home at Ahmedabad.

The Court prima facie was of the view that it was a matrimonial dispute between the husband and wife and ingredients for the alleged offence were not made out qua the applicants. Even the allegations of dowry and harassment are also prima facie not established against the present applicants as the applicants are residing in their respective States and country since long considering the law laid down in Ravinder Singh v. Sukhbir Singh, (2013) 9 SCC 245 where it was held,

            “the inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint”.

The Court further opined that at the stage of investigation, the High Court cannot exercise its inherent jurisdiction to quash the proceedings unless it is found that, allegations do not disclose the commission of cognizable offence or the power of investigation is being exercised by the police mala fidely or where noninterference would result in miscarriage of justice as held in Jehan Singh v. Delhi Administration, (1974) 4 SCC 522. The Court granted interim relief making the matter returnable on 27-11-2020.[Steffi Waring v. State of Gujarat, 2020 SCC OnLine Guj 1531, decided on 09-10-2020]


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Case BriefsHigh Courts

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

Brief Facts

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

Observations

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

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

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

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

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

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

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

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

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

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


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Case BriefsHigh Courts

Karnataka High Court: B.A. Patil, J., dismissing the present petition, observed,

“Taking into consideration the peculiar facts and circumstances under which the said speech has been delivered, the circumstances existing at that particular point of time and surrounding circumstances, have to be analyzed to come to a proper conclusion. At his pre-matured stage, it is not a fit case to exercise the power under Section 482 CrPC and thereby quash the proceedings.”

Brief Facts

The facts of the case are categorically stated hereunder;

  1. That on 17-02-2020 the ‘Popular Front of India’ organization held a function in the name of founding day at Derlakatter Ground, Belma village, Mangalore City.
  2. That the petitioner, in the aforementioned function, delivered a speech commenting upon the Supreme Court and its verdict on Ayodhya. Allegedly, the speech said to construct Babri Masjid at the same place, wearing uniform representing Allah and further called Home Minister and Prime Minister Modi as demons, who shall perish on their own.
  3. That the speech delivered was allegedly provocative, inflammable and derogatory to the Hindu belief system and carried the potential of spreading enmity between the two religious sects.
  4. That on the basis of such speech, a complaint was registered against the petitioner under Section 153A IPC.
  5. That the present Criminal Petition is filed under Section 482 CrPC, praying to quash the FIR under Section 154A IPC contending that the charge sheet does not disclose the ingredients of the said section and no material has been placed on records, so to conclude that the speech provoked enmity or communal disharmony between any religious sects.

Observations

The Court while examining the speech in question reproduced the language of Section 153A IPC. It further cited the following cases to evaluate the intention behind making such speech.

1. Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1

“Section 153A covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquility. The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offences under Section 153A IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused.”

2. While referring to Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431 the Court remarked that, it is important to have atleast the reference of two religions in the alleged hate speech or literature. Mere inciting the feeling of one community without any mention of another group or community cannot attract the offence under Section 153A.

3. Deriving the element of intention in the present case, the Court observed,

“On close reading of the contentions of the speech, there are two religions involved. One is the Muslim community and another one has been indirectly, in the form of innuendo, stated as ‘other religions’. Whether he was having an intention or not, is a matter which has to be considered only at the time of trial. He has to come up and explain under what circumstances, with what intention he has made such statement. Since the matter has to be decided by the trial court, if a detailed discussion is made, it may affect both the parties to the proceeding. Perusing the contents of the complaint and other records, there appears a prima facie case against the said petitioner-accused.”

With respect to the cases pleaded by the counsel for the petitioner, the Court said that the applicability of those principles in the present case does not match.

Decision

While dismissing the criminal writ petition on lack of merits, the Court said that, it shall not be fit to exercise the power provided under Section 482 CrPC as the case is yet to be tried by the lower court and the prima facie records are reflective enough to further evaluate the said matter. [Mohammed Shariff v. State of Karnataka,  2020 SCC OnLine Kar 1532, decided on 1-10-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Javed Iqbal Wani, J., while allowing the instant bail application, made significant observations pertaining with conditions to bail.

Brief Facts

The applicant as submitted in his application affirms that, he was falsely implicated in the said FIR and arrested in the month of June, 2019. Subsequently, he moved a bail application before the trial court that remained pending due to the outbreak of pandemic and no hearing was called. Later, he moved a second bail application which was dismissed on 02-06-2020 without affording him an opportunity of hearing through virtual mode. It is further stated that the trial court declined the bail application without considering the material produced before it and in the process passed a perverse order, committing grave illegality. Furthermore, it is an undisputed fact that the applicant has been under detention for over 14 months without even a fair occasion of hearing.

Contentions

It was the argument for the counsel of applicant that, (1) he has been falsely implicated without cogent reasons, (2) no fair hearing has been given until the present date, (3) plea of parity be considered as a co-accused in the same matter has been bailed out by this Court, (4) entitlement to bail under the guidelines issued by a High Power Committee constituted pursuant to the directions by the Supreme Court.

The Prosecution insisted on rejection of the bail application citing, (1) commission of serious, grave and reprehensible nature of offences, (2) voluntary and intentional hatching of criminal conspiracy.

Observation

The Court made the following observation in light of the facts and circumstances of the present case; “While considering an application for bail, it is well settled by the catena of judgments of the Apex Court that court must not go deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of prima facie case against the accused. Since charge sheet has been filed in the trial court, the presence of the applicant would be required only during the trial which in view of the present situations may consume a long time and as such the applicant cannot be held in custody for so long.” Since the application is also made citing parity as a co-accused is the same matter was granted bail by this Court, it was remarked, Parity cannot be the sole ground for granting bail yet if on examination of a given case it transpires that the case of applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail.”

Decision

While allowing the bail application, the Court enlisted five conditions illustratively, (1) To furnish a personal bond to the tune of Rs 1 lac, (2) To surrender and deposit passport, (3) Not to leave the territorial jurisdiction of the present Court without permission, (4) Not to influence the prosecution witness, directly or indirectly, (5) To face the trial without any fail.[Bharat Bhushan v. UT of J&K,  2020 SCC OnLine J&K 496, decided on 11-09-2020]

Case BriefsHigh Courts

Karnataka High Court: Ashok G. Nijagannavar, J., allowing the present petition, quashed the chargesheet filed and made significant observations with respect to Court’s power under Section 482 Criminal Procedure Code.

Brief Facts

The complainant Police Inspector received credible information about illegal activities regarding prostitution by supplying foreign and Indian girls by contacting customers through an international website. The said information was confirmed by sending a decoy. Thereafter, upon receiving the reply regarding the supply of the girls for prostitution at a place called the Kaisar Service Apartment, the complainant and his staff conducted a raid and arrested three accused namely two girls and a man who allegedly supplied the said girls for the illegal act of prostitution. Upon the information gathered from accused 1, it is learned that he solicited the customers through a website designed by accused 4, the present petitioner; Gavin Mendes. After completion of the investigation, the police have submitted the chargesheet arraying the petitioner as accused 4. 

Contentions

It was submitted by the counsel for the petitioner that the accused is a professional software developer and the website made by him was only a fulfillment of a contract that he entered into without knowing the purpose of the other accused. It was further insisted that the name of the petitioner is nowhere found in the FIR and has been later arrayed as an accused in the chargesheet only on the basis of unfound reasons. Another ground urged by the learned counsel for the petitioner is that when there are allegations for an offence under Section 67 of the Information Technology Act, the investigation must be conducted by the concerned Cyber Crime Branch and not by the respondent police, as they have no jurisdiction to do so. Lastly, it was insisted that no prima facie case exists against the petitioner and the charges be quashed accordingly.

The testimony of accused 1 mainly relied on the submissions made by the Prosecution. Moreover, the existence of mala fides and collusion behind designing the website was vehemently insisted.

Observations

The Court making significant observations with respect to the Inherent power of the Court under Section 482 CrPC, cited, Vineet Kumar v. State of U.P, (2017) 13 SCC 369, where the Supreme Court held, “Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold. The court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal

State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, para 102 which illustrates 7 categories of cases where power under Section 482 CrPC can be rightfully exercised, namely: (i) No prima facie case (ii) no cognizable offence disclosed (iii) allegations in FIR and evidence fails to disclose any offence (iv) non-cognizable offence committed which can be investigated only by an order of Magistrate (v) allegations made are absurd or improbable (vi) express legal bar to the continuance of proceedings (vii) proceeding is manifestly attended with mala fides

 Decision

Allowing the present petition, the Court quashed the case against the accused of the offences punishable under Sections 4, 5 and 7 of the Immoral Traffic Prevention Act, Section 370, 370 A (2), 292 of the Penal Code, Section 67 of Information Technology Act and Section 14 of Foreigners Act. It further held that no prima facie case appeared against the petitioner and that the reasons for arraying him later are not well-founded.[Gavin Mendes v. State of Karnataka, 2020 SCC OnLine Kar 1497, decided on 23-09-2020]