Case BriefsHigh Courts

Punjab and Haryana High Court: Considering the misuse of SC and ST Act by so-called social activists, Arvind Singh Sangwan J. directed the Director General of Police to issue instructions to all the Senior Superintendents of Police that no FIR under SC&ST Act be registered at the instance of third party, unless an opinion is sought from the District Attorney (Legal) that the complainant falls within the definition of victim as per SC&ST Act.

The sexagenarian petitioners had approached the Court for grant of anticipatory bail in an FIR registered under Sections 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner couple, about 67 years and 58 years of age were alleged to have used some derogatory remarks against their daughter-in-law, Ramanpreet Kaur who belonged to SC/ST cast while having a private conversation with their son. Noticeably, prior to performance of the marriage, the petitioners had disowned their own son by issuing a notice in the newspaper on 14-09-2016 as he used to maltreat them.

The petitioners submitted that after performing marriage, the atrocities of their son had increased as he wanted them to be ousted from their own the house. The pressure on the petitioners to transfer the property in the name of their son went to the extent that the petitioners had to approach Commissioner of Police for seeking protection to their life and liberty. In the above backdrop, the petitioners contended that as a ploy to oust the petitioners from the house, their son had uploaded the audio recording of their private conversation on his social media profile and the complainants namely Navdeep, Sunil Bagha and Gurdeep Singh, claiming themselves to be a social activist in Jalandhar had got the aforesaid FIR registered.

The petitioners argued that none of the informant would fall under the definition of ‘Victim’ as per Section 2(1)(ec) of the SC&ST Act, which refer to a victim as “individual” who has suffered or experienced physical, mental, psychological, emotional or monetary harm to his property, which includes his relatives, legal guardian and legal heirs.

Noticing that Ramanpreet Kaur had not come forward to lodge any complaint with the police and the three complainants were not related to her in any manner, the Bench opined that the petitioners were senior citizens with no criminal antecedents and, admittedly, there was a property dispute between the petitioners, on one side and their son on the other side, on account of the fact that their son had married to a dalit woman has performed marriage with Ramanpreet Kaur, the FIR so registered by strangers to the suit was a clear misuse of process of law.

Therefore, with the view that no complaint was lodged by the victim (daughter-in-law), and none of the complainant had any locus standi, the Bench allowed the application for anticipatory bail. [Bhagwant Singh Randhawa v. State of Punjab, CRM-M No.42685 of 2021, decided on 12-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Petitioners: Amit Dhawan, Advocate

For the State of Punjab: Joginder Pal Ratra, DAG, Punjab

For the Complainants: Navraj Singh, Advocate

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed an application for anticipatory bail which was filed in connection with FIR registered for the offence under Sections 188, 269, 270, 420 of IPC, Section 3 of the Epidemic Diseases Act, 1897 and Section 51 (b) of the Disaster Management Act, 2005.

Advocate for the applicant submitted that the applicant is not named in the FIR; he has been falsely implicated in this matter at the instance of a co-accused Sandeep; the applicant undertakes that he will co-operate with the Investigating Agency.

Personal liberty under Article 21 of the Constitution of India is very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

The Court directed that in the event of arrest the applicant–accused shall be released on bail on furnishing a personal bond of Rs.30,000/- with two reliable sureties, each in the like amount to the satisfaction of the Investigating Officer/Arresting Officer with the following conditions:-

  • The applicant shall make himself available at the time of interrogation by a police officer as and when requires;
  • The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case.

[Aman Goyal v. State of Uttaranchal, 2021 SCC OnLine Utt 1170, decided on 07-10-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Kerala High Court: Shircy V., J., dismissed the bail application of one Sessy Xavier, the infamous fake lawyer. The Bench stated,

“The illegal activities adopted by her that too before the court of law has to be dealt with an iron hand. If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole Judicial system and would shake the confidence of the public in judicial system.”

Background

The allegation against the petitioner was that the petitioner, who was not a law graduate, had fraudulently approached the Bar Association, Alappuzha with someone else’s enrolment number and secured membership.  She had also submitted applications before the civil courts and thus her name was also included in the panel of Commissioners and was appointed as Commissioner in so many cases. She was also said to have appeared before the Sessions courts for the accused as State brief. Shockingly, she had contested the election of the Bar Association and was elected as an office bearer of the Association.

Thus, apprehending arrest in the case registered against her under Sections 417, 419 and 420 of the IPC, the petitioner had approached the Court seeking anticipatory bail. The definite case of the petitioner was that she never appeared as an Advocate or attended the courts as an Advocate wearing the uniform prescribed for a lawyer. But she joined only as a law intern in the office of an Advocate at Alappuzha.

Eligibility of an Advocate

Section 24 (1) (c) of the Advocates Act, 1961 says that a person who has obtained a degree in law is qualified to be admitted as an Advocate, if he fulfills the conditions narrated therein. Therefore, only a person holding a Law Degree is entitled to get his name enroled in the roll as an Advocate and only after enrolment as an Advocate, one could practise the profession of law as an Advocate as reflected in the Act. Admittedly, this petitioner was not holding a degree in law and so she never enrolled as an Advocate before the Bar Council of Kerala. Rejecting the argument of the petitioner she had only joined the office of a Senior Advocate as law intern, the Bench stated the same appeared to be a false statement as revealed from the records.

Opinion and Analysis

Noticeably, the petitioner never completed her course in LL.B, though she was a student at Law Academy Law College at Thiruvananthapuram for a short period but clandestinely produced the enrolment number of another Advocate and the said number was exhibited by her as her roll number in all her activities as an Advocate before the courts. Hence, prima facie, the petitioner had not only cheated the Bar Association, the District judiciary, the general public, but also the entire judicial system.

“Doubtless that the gravity of the offences alleged against her is grave and serious in nature…The allegations levelled against her are highly serious and sensitive having grave repercussions in the society.”

The held that the Advocates’ first responsibility is towards their clients and then to the courts. So, misrepresenting or presenting as an Advocate before a client and obtaining his/her brief as if she is an Advocate, itself would amount to cheating towards the public. Noticing that she had also functioned as the librarian of the Bar Association and she was in charge of the records of the association, the Bench directed the Bar Associations to cross check and verify with the Bar council before admitting a new member, so that such incidents could be prevented in future. The Bench stated,

“If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole judicial system and would shake the confidence of the public in judicial system.”

Conclusion

Since, application submitted by her for admission before the association was also found missing from the records along with some other applications submitted the investigating agency was directed to go deep into the matters so as to ascertain what were the offences committed by the petitioner apart from the offences she had been booked by the prosecution.

Hence, holding that to probe into those details, definitely custodial interrogation of the petitioner was essential and inevitable, her bail application was dismissed. [Sessy Xavier v. State of Kerala, Bail Appl. No. 5868 of 2021, decided on 17-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: By Adv Roy Chacko

For the State of Kerala: Adv. P.K. Vijayakumar, Sr. Pp Smt. Sreeja V

For Addl. Respondent 3: Adv. B Pramod

Cyril Amarchand MangaldasExperts Corner


Introduction


Personal liberty and the rule of law find their rightful place under Articles 21 and 22 of the Constitution of India, which include measures against arbitrary and indefinite detention. Even with the option of an elaborate judicial procedure to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system, giving rise to the notion that the bail system is unpredictable[1].

 

Recently, the Bombay High Court in Sameer Narayanrao Paltewar v. State of Maharashtra[2] (Paltewar judgment) has reiterated the mandate of the law to protect accused persons against the “incalculable harm to the reputation and self-esteem of a person”[3] caused by an arrest.

 

A peculiar provision of law dealing with the grant of anticipatory bail under Section 438 of the Code of Criminal Procedure Code, 1973 (CrPC) allows the State to make an application requesting the presence of the accused applicant seeking anticipatory bail at the time of final hearing of the Anticipatory Bail Application (‘ABA’) and passing of final order by the relevant court. The same law also authorises the court to compel the presence of such accused if the court considers it “necessary in the interest of justice”. The obvious problem with this provision is that if the ABA is rejected, the police not only can locate, but may also arrest  the accused.

 

While interpreting the powers under Section 438(4) of the CrPC (as exercised by the Sessions Court), the Bombay High Court has now directed that while orders mandating physical presence at final hearing may be passed, the Sessions Court should also ensure that should the ABA be rejected at such final hearing, the applicant shall be protected against arrest for a stipulated period to allow him/her time to approach the High Court and re-agitate a request for anticipatory bail.

 


Backdrop


Prior to 1973, criminal procedure in India[4] did not envisage the concept of ‘anticipatory bail’/’bail apprehending arrest’. The Law Commission of India in its 41st Report on the CrPC first identified the necessity for provisions regarding grant of anticipatory bail as:

 

“[…] sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. […] Apart from false cases, where there are reasonable grounds […], there seems no justification to require [an accused person] first to submit to custody, remain in prison for some days and then apply for bail.”[5]

 

The initial idea of providing for anticipatory bail was to avoid the situation where a person needed to obtain a bail after being arrested, even while reasonable grounds existed for the same prior to arrest. In 1973, Sections 436, 437 and 439 of the CrPC dealing with the grant of bail were streamlined and the new provision of Section 438 of the CrPC for anticipatory bail was introduced.

 

It is only through judicial interpretation that the law in relation to anticipatory bail (and bail in general) was thereafter developed to align itself with the constitutional objectives of protecting personal liberty and to strike a fine equilibrium between the “freedom of person” and “interest of social order”.

 

While Section 438 of the CrPC originally read to allow the High Court or Sessions Court to grant anticipatory bail at their discretion, it intentionally did not prescribe standards or thresholds for the same. The law on anticipatory bail has since been modified to provide for various aspects, with the State of Maharashtra amending the CrPC (as it applies to Maharashtra) in 1993 to include sub-section (4) to Section 438, which states as follows:

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice.

 

For the rest of India, Section 438 of the CrPC has since been amended[6] to include sub-section (1-B) which incorporates the identical language as above.

 


Paltewar judgment – Brief overview


The case arises out of a dispute between the applicant and the original complainant, who were directors of a company operating a hospital. The original complainant filed a complaint against the applicant for offences punishable under Sections 406, 409, 420, 465, 467, 468 and 471 of the Penal Code, 1860 (IPC) and Section 66-C of the Information Technology Act, 2000.

 

During the investigation into such complaint, the applicant had filed an ABA before the Sessions Court, Nagpur. In such an ABA, the Public Prosecutor moved an application seeking presence of the applicant in the Sessions Court at the time of final hearing of the anticipatory bail application and the same was allowed.

 

Aggrieved by the order of the Sessions Court in granting the request of the prosecution and compelling his personal presence at the final hearing, the applicant accused filed an application under Section 482 of the CrPC before the Bombay High Court invoking its inherent jurisdiction.

 

The main issue that arose for determination before the Bombay High Court was in relation to the fate of an accused in the State of Maharashtra who is directed to remain present in the Sessions Court pursuant to a direction under Section 438(4) of the CrPC (as it applies to Maharashtra), and the consequences that may arise if such application for anticipatory bail is rejected.

 


Interim protection


While the applicant had been granted interim protection under Section 438(1) of the CrPC by the Sessions Court, the Bombay High Court further granted interim protection stating that if the ABA before the Sessions Court is rejected during the pendency of the High Court proceedings, then the interim protection granted against arrest would extend for a further period of 72 hours to allow the applicant to approach the High Court.

 

However, while such interim order effectively protected the applicant, the Bombay High Court proceeded with the hearing in the matter as a substantial question of law was involved.

 

In its analysis of Section 438(4) of the CrPC (as applicable in Maharashtra), at the outset, the Bombay High Court reiterated that an order directing an accused person to appear at the final hearing can be passed only when interim protection is already operating in favour of an accused[7].

 

The Paltewar[8] judgment recorded that in case the applicant is not granted interim protection in an ABA and the Sessions Court still directs him/her to remain present in the court on the date fixed for final hearing, by virtue of proviso to sub-section (1), it is open for the investigating officer to effect arrest of the applicant. The direction under sub-section (4), if considered as an independent and irrespective of interim protection, will prove to be a mouse trap and not a protection of personal liberty of the citizen. Being under the directions of the court, the applicant would be obliged to proceed towards the court while the investigating officer can wait at the entrance gate of the court premises.[9]

 


Analysis on Section 438(4) of the CrPC


At the outset, the Bombay High Court has clarified that Section 438(4) of the CrPC has already passed constitutional muster inter alia in Vijaya Ramesh Ramdasi v. State of Maharashtra[10] and Goyappa Jalagiri v. State of Maharashtra[11]. While dealing with the same, however, the Bombay High Court clearly observed that applications seeking personal presence of an accused cannot be moved callously by the prosecution neither can it be routinely allowed by the Sessions Court. It was further observed that a direction under Section 438(4) of the CrPC can be issued seeking the presence of the accused before the court at the stage of final hearing of the application but only if the accused’s interim order of protection from arrest was in operation.

 

Understanding the lacunae from the point of view of an accused, the Bombay High Court relied on State of Maharashtra v. Kachrusingh Santaramsingh Rajput[12] and catena of other Supreme Court judgments to state that the very purpose of introducing Section 438 in the CrPC, and the new form in which it was brought into force in the State of Maharashtra, was to strike a balance between the interest of the State to investigate through police into offences according to established procedure of law and the individual liberties of a person accused of serious crimes.[13]

 

In the Paltewar[14] judgment, the Bombay High Court also observed that when the Sessions Court allows an application that seeks the presence of the accused, it should provide sufficient reasons for allowing the same. The Sessions Court’s reasons must elaborate why the presence of the accused was important in the “interest of justice”, for example, specifying if there was possibility of absconding by the accused, etc.

 

The court further threw light on the expression “in the interest of justice” by stating that it has to be construed in the interest of both the prosecution as well as the accused and the court is obliged to strike a balance between the interests of the two. As the same was not done in the Paltewar[15] judgment, the Bombay High Court had quashed and set aside the order allowing the applicant’s presence.

 


Right to approach the High Court


It is well settled now that both the High Court and the Sessions Court have concurrent jurisdiction to deal with ABAs for directions under Section 438 of the CrPC and it is open to a person to move either of these two courts. It is, however, a generally accepted practice, as recorded in the Paltewar[16] judgment, to approach first the Sessions Court and thereafter the High Court for such relief.

 

Where a person chooses to move the Sessions Court in the first instance, a revision will lie in the High Court against the order of the Sessions Court on the application for issue of directions under Section 438 of the CrPC.

 

It is in light of this statutory intention, that the Bombay High Court stated that in the absence of any interim order of protection operating in favour of the accused during pendency of the application for anticipatory bail before the Sessions Court, the right available to the accused to move the High Court will stand frustrated if he/she is arrested and such arrest will obviously be facilitated by the direction of the Sessions Court under Section 438(4) of the CrPC[17]

 

In light of the above, even though the order under Section 438(4) of the CrPC (as applicable in Maharashtra) in the Paltewar[18] judgment was set aside, the Bombay High Court put down the following guidelines for Sessions Courts to follow when passing such orders:

 

(a) While filing the application under Section 438(4) of the CrPC (Maharashtra Amendment), the prosecutor has to state cogent reasons while seeking the obligatory presence of the accused before the Sessions Court at the time of final hearing of the ABA.

(b) The Sessions Court shall consider the application by the prosecutor and pass a reasoned order as to why the presence of the accused is necessary “in the interest of justice” at the time of final hearing of an ABA.

(c) If the Sessions Court rejects the application, it shall mandatorily extend the interim protection operating in favour of the accused for a minimum period of three (3) working days on the same conditions on which interim protection was granted during pendency of an ABA or on such further conditions as the Sessions Court may deem fit, in the interest of justice.

(d) If the Sessions Court considers it appropriate to grant extension of protection for more than three (3) working days, it shall record the reasons for the same, but in any event, it should not be more than seven (7) days.

(e) The accused should abide by the conditions imposed by the Sessions Court while granting extension of interim protection, failing which such interim protection shall cease to operate instantly.

 


Conclusion


The Paltewar[19] judgment expands on a very important point under the jurisprudence in relation to bails, specifically anticipatory bails. It is seen in a lot of cases that the accused, who is facing a potential arrest, is not provided with a protective order for a reasonable period of time when the presence under Section 438(4) of the CrPC is sought by the Sessions Court. With freedom jeopardised, the accused is pushed closer to a probable arrest.

 

The Paltewar[20] judgment has now made it mandatory to protect the applicant against any untoward impact of such requirement to be personally present, which would give a lot of security to the public at large.

 


† Partner, Cyril Amarchand Mangaldas.

†† Principal Associate, Cyril Amarchand Mangaldas.

††† Associate, Cyril Amarchand Mangaldas.

[1] Government of India, Law Commission of India, Report No. 268 Amendments to Criminal Procedure Code, 1973 Provisions Relating Bail, 23-5-2017.

[2] 2021 SCC OnLine Bom 2192.

[3] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

[4] Under the Code of Criminal Procedure, 1898.

[5] Government of India, Law Commission of India, 41st Report, The Code of Criminal Procedure, 1898 – Volume I, dated 24-9-1969 at Para 39.9.

[6] Code of Criminal Procedure (Amendment) Act, 2005, S. 38, with effect from 23-6-2006.

[7] Vijaya Ramesh Ramdasi v. State of Maharashtra, Bombay High Court, Criminal Application No. 569 of 2001,

decided on 20-3-2001 .

[8] 2021 SCC OnLine Bom 2192.

[9] 2021 SCC OnLine Bom 2192.

[10] Criminal Application No. 569 of 2001.

[11] Criminal Application No. 4370 of 2004.

[12] 1994 SCC OnLine Bom 73 : (1994) 3 Bom CR 348.

[13] 2021 SCC OnLine Bom 2192, para 17.

[14] 2021 SCC OnLine Bom 2192.

[15] 2021 SCC OnLine Bom 2192.

[16] 2021 SCC OnLine Bom 2192.

[17] 2021 SCC OnLine Bom 2192, para 26.

[18] 2021 SCC OnLine Bom 2192.

[19] 2021 SCC OnLine Bom 2192.

[20] 2021 SCC OnLine Bom 2192.

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. has held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, he/she is not required to be produced in custody. While remarking that if arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person, the Supreme Court observed:

“The word ‘custody’ appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.”

Facts and Appeal

The appellant was sought to be roped in an FIR which was registered seven years ago. The appellant was a supplier of stones to U.P. Rajya Nirman Ltd., and was booked under Section 409 (Criminal breach of trust) and Section 120-B (Punishment for criminal conspiracy) of the Penal Code, 1860. The appellant had already joined the investigation and the chargesheet was ready to be filed. An arrest memo was issued against him. The trial court took a view that unless the person is taken into custody, the chargesheet will not be taken on record in view of Section 170 (Cases to be sent to Magistrate, when evidence is sufficient) of the Criminal Procedure Code.

The appellant had filed an anticipatory bail application before the Allahabad High Court, which was rejected. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations

The short issue before the Court was whether the anticipatory bail application of the appellant ought to have been allowed.

The Supreme Court gave its imprimatur to judicial opinion in several decisions of the Delhi High Court and Gujarat High Court where it had been observed on consideration of Section 170 CrPC that it does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the chargesheet.

The Court noted that it had in fact come across cases where the accused cooperated with the investigation throughout and yet on the chargesheet being filed, non-bailable warrants were issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. The Court said that it failed to appreciate why there should be a compulsion of the officer to arrest the accused.

Following the dictum in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, the Court reiterated that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. It was observed:

“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.”

The Court was faced with a situation where the trial court was insisting on arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of provisions of Section 170 CrPC. The Court considered such a course misplaced and contrary to the very intent of Section 170.

Decision

In the instant case, when the appellant had joined the investigation; investigation was complete, and he was roped in after seven years of registration of FIR, the Court was of the view that there was no reason why at this stage he must be arrested before chargesheet is taken on record. Accordingly, the appeal was allowed and the impugned order of the Allahabad High Court was set aside. [Siddharth v. State of U.P., 2021 SCC OnLine SC 615, decided on 16-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Tis Hazari Courts, Delhi: Kamini Lau, PO (MACT) –01, granted bail to an accused Lakhbir Singh in Republic Day Violence, while noting that he had already joined the investigations and produced his mobile phone and disclosed that it was the same mobile phone which was being used by him on 26th January for recording videos and further uploading the same on his Facebook page.

An application under Section 438 CrPC was filed by the applicant/accused Lakhbir Singh of grant of anticipatory bail.

It was submitted that the applicant had been supporting the peaceful agitation of the Farmers for repeal of three farm laws, though he is not a party of any Kisan Union or Organization.

Further, it was pleaded that there was not even an iota of evidence that the applicant either himself indulged into any violence or incited anyone to commit any violence and the present application has been filed since there is a grave and serious apprehension that he might be falsely implicated in the present case and other cases also.

Analysis, Law and Decision

Bench stated that recently the Delhi High Court while dealing with the bail applications of Natasha Narwal, Devangana Kalita and Asif Iqbal who were arrested for unlawful activities in relation to East Delhi riots, observed that at a time when the society is polarized and fractured across various lines and ideology reached vanishing point, the Court will do all within their mandate to prevent the misuse of the law and alleviate the anxiety which had come to surround the said individuals.

Court observed that the allegations against the applicant were that he had addressed the mob from the stage of Sanyukt Kisan Morcha and instigated the mob not to follow the route permitted by the Delhi Police.

Bench asked the Investigating Officer if the presence of the accused outside the Red Fort was a very grave offence and was non-bailable. Investigating agency was not sure of the same. Hence, the Court opined, the said offences were bailable.

Further, the Court stated that the main conspirators as per the Delhi Police were Deep Sandhu and Iqbal Singh had already been granted bail.

“…an accused is deemed innocent till proved guilty.”

In view of the above, Bench held that the prima facie there was no material that the applicant/accused was present inside the Red Fort and if that be so, even no prima facie case was made out against him.

As per the report of the Investigating Officer, the applicant/accused was involved in 21 other cases in Punjab and out of that applicant was acquitted in 8 cases.

The IO was unable to respond to why the custodial interrogation of the applicant was further required in investigations.

Bench without making any observations directed that in the eventuality of arrest, the applicant Lakhbir Singh be admitted to bail on his furnishing a personal bond to the tune of Rs 50,000 subject to some conditions.

If the accused was found to be violating any of the conditions, the State shall be at liberty to move an application for cancellation of bail.[State v. Lakhbir Singh, Bail Application No. 2632 of 2021, decided on 29-07-2021]


Advocates before the Court:

Rajat Kalra, Ld. Addl. PP for the State (through Video Conferencing).

Jaspreet Rai, Vir Sandhu, Kapil Madan, Jasdeep Dhillon, Gurmukh Singh Arora, Advocates for the applicant accused (through Video Conferencing).

Case Briefs

Punjab and Haryana High Court: Rajesh Bhardwaj, J., held that plea for anticipatory bail by a juvenile is not maintainable in law as there is no concept of arrest on apprehension regarding children in conflict with the law.

The petitioner, a juvenile had filed the instant petition seeking anticipatory bail with regard to FIR lodged against him under Section 8 of Protection of Children from Sexual Offence Act, 2012 (POCSO), contending that he had been falsely implicated in case.

Whether petition under Section 438 of CrPC maintainable on behalf of a juvenile?

The moot question before the Court was the issue of the maintainability of the petition on behalf of a juvenile under Section 438 of CrPC. Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015 Section 10 deals with the apprehension of the child alleged to be in conflict with the law and Section 12 pertains to bail to a person who is apparently a child alleged to be in conflict with the law.

The provisions of Section 12 would show that when any child in conflict with law is brought before a Board, such person notwithstanding anything contained in the CrPC or in any other law for the time being in force, be released on bail with or without surety; whereas the provisions of Section 438 CrPC are enumerated for granting the bail to the person who has apprehension of the arrest. The Bench stated that

“A reading of provisions of Section 438 CrPC vis-a-vis of relevant provisions of the Act would show that a juvenile cannot be arrested and thus, there is no question of apprehension of his arrest. Hence, the petition under Section 438 CrPC is not maintainable in case of a juvenile.”

Reliance was placed by the Court on the decision of Madras High Court in K. Vignesh v. State of T.N., 2017 SCC OnLine Mad 28442, wherein it had been held that,

“Had it been the intention of the Legislature, that a police officer should be empowered to arrest a child in conflict with law, the Legislature would have very well used the expression ‘arrest’ instead of using the expression ‘apprehend’ in Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015…the Legislature has, thus, consciously omitted to use the expression ‘arrest’ in Section 10 of the Act, which means that the Legislature did not want to empower the police to arrest a child in conflict with law. Therefore, the Legislature has empowered the police simply to apprehend a child in conflict with law and immediately, without any delay, cause his production before the Juvenile Justice Board…the proviso to Section 10 of the Act makes it very clear that in no case a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail. The Board has been obligated to send the child either to an observation home or a place of safety.”

Opining that a careful perusal of statutory provisions and the judicial precedents would show the intention of legislature in safeguarding the welfare of juvenile as apparent by Section 12, wherein it mandates the production of the child before the Board, the Bench stated that,

“The underlying purpose of the scheme appears to be that legislature wanted the personal interaction of the juvenile with the Board before arriving at a decision regarding his bail.” 

On the other hand, the Bench observed that such a provision has no place under Section 438 CrPC and hence safeguard provided to a juvenile is automatically bypassed. Even otherwise the Act mandates the provision of granting the bail to a juvenile in a bailable or non-bailable offence notwithstanding anything contained in CrPC. Thus, it was held that the petition under Section 438 CrPC on behalf of the juvenile is not maintainable; therefore the petition was dismissed with the liberty to the petitioner to seek remedy in accordance with law.[X v. State of Haryana, CRM-M-21406 of 2021, decided on 05-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Manoj Tanwar, Advocate

For the State of Haryana: Manish Bansal, DAG, Haryana

Case BriefsDistrict Court

Tis Hazari Courts, Delhi: Dr Kamini Lau PO (MACT)-01, granted bail to a person alleged for inciting violence at Singhu Border and Red Fort in respect to the Farm Laws.

Accused had filed an application under Section 438 CrPC seeking anticipatory bail.

It was submitted that the accused had been supporting the peaceful agitation of the Farmers for repeal of three farm laws though he was not a party of any Kisan Union or Organisation. He was politically active and had been implicated in false cases due to ulterior motives.

Further, it was added that there was no evidence on record of applicant/accused being indulged in any violence or inciting anyone to commit any violence. He will be available to cooperate with the investigations.

Investigating Officer submitted that the applicant/accused was a gangster-turned-activist and was a dreaded criminal having a long criminal history and was involved in several cases of loot, murder, attempt to murder, booth capturing, gang wars, etc.

Additional PP submitted that applicant/accused was actively involved during protests from Delhi Border (Singhu) and there are videos available on record wherein the applicant was seen addressing the protesters from the stage of Sanyukt Kisan Moracha and was instigating the protesters.

Analysis and Decision

Bench had placed a specific query on the specific role attributed to the applicant/accused in the Red Fort incident to which the IO submits that there was no direct evidence to confirm applicant’s presence inside the Red Fort and perhaps he was present outside the periphery of Red Fort.

Bench stated that it was informed that the main persons accused of instigation were already granted bail.

Hence, the applicant/accused was directed to join the investigation on 10-07-2021 in the office of the Investigating Officer and also thereafter as and when so directed by the Investigating Officer.

Matter to be listed for remaining arguments on 20-07-2021.[State v. Lakhbir Singh, Bail Application No. 2632 of 2021, decided on 3-07-2021]


Advocates before the Court:

Adv. Jaspreet Singh Rai

Adv. VPS Sandhu

Adv. Kapil Madan

Adv. Jasdeep Singh Dhillon

Adv. Gurmukh Singh Arora

Adv. APS Mander

Case BriefsCOVID 19District Court

Sessions Court, Jammu and Kashmir: Tahir Khurshid Raina, J., denied anticipatory bail to the person accused of obstructing the vaccination drive and spreading rumours regarding the vaccination. The Bench said, 

“It is very unfortunate that while on one hand, the govt. is making painstaking efforts to ensure the safety of the people against the deadly virus by vaccination drives, the rumour mongers like the petitioner are acting as stumbling block in this lofty endeavor of the government.”

The instant application had been filed by the accused seeking anticipatory bail alleging that some false and frivolous complaint had been lodged against him. It was averred that the respondent/police wants to malign the image of the petitioner by taking him into custody. On presentation of the same, though the Court granted interim anticipatory bail, it also called for the report from the concerned Police Station. After perusal of the report, and going through the C.D. of the alleged incident the Bench reached the following findings:

Background

The facts of the case as reflected from the case diary was that on 21-06-2021, a Revenue team headed proceeded to Ashmuji for Covid-19 vaccination drive at Government Higher Secondary School. When the revenue team along with the medical team reached the spot, the petitioner made hue and cry, instigated and provoked local inhabitants there against the team and halted the vaccination drive. The petitioner assembled a large crowd there, diverted the vaccination drive towards other unnecessary issues in order to restrain the general public from vaccination. On the basis of that an FIR was registered against the accused of commission of offences under Sections 188, 269, 353 IPC.

Perusal of statements of the revenue team revealed that they all had supported the contents of the complaint lodged against the petitioner and how his hate campaign against vaccination obstructed the vaccination drive by spreading misinformation. The petitioner was also said to have used filthy language against the team members who were on the spot in connection with the vaccination drive.

Opinion and Findings of the Court

Relying on the statement of WHO, “but it’s not vaccines that will stop the pandemic, its vaccination”, the Bench stated that during the world crippling pandemic our experts in the medical field had acted as front warriors to save the humanity and at the same time played an exemplary role in preparing a vaccine to act as a shield against the attack of the virus, yet unfortunately,

“By spreading rumors and disinformation campaign against the vaccination, the petitioner and their ilk were creating lot of fear psychosis and confusion among the general public about the vaccination. Such unsubstantiated and profane act of the petitioner is not only grossly illegal but amounts to pushing the life of the people in peril, who, if not get promptly vaccinated, may fall prey to the deadly virus.”

The Bench emphasised not to forget the melancholic situation the country had faced recently, on account of second wave of the pandemic, which consumed lacs of precious human lives. Further to avoid the fatal impact of the third wave which can be more fatal as compared to second-wave the only remedy available and suggested by the experts is to get more and more people vaccinated. Expressing concern, the Bench said that it had been witnessed that at various places the health workers had to face stiff resistance from the people during vaccination drive and even had been subjected to assault at same places due to myths, rumors and canard being spread by the people like the petitioner and on account of it the people, especially living in the rural areas are getting skeptical and cynical about vaccination.

Opining that the act of rumour-mongering with regard to vaccination amount to putting the large chunk of people in jeopardy and at the same time to defeat the govt. in its drive of achieving the target of fully vaccinated country and finally to save the countrymen of the brutal effect of any further wave of the pandemic, the Bench held that the petitioner’s act of blocking the vaccination drive was detestable and illegal, hence, extending anticipatory bail to him would mean to put premium on his criminality.

Quoting Rumors are carried by haters, spread by fools and accepted by idiots”, the Bench added, let a message travels in the length and breadth of our society at large that no such unbecoming and illegal attempt of rumor mongers will be tolerated who are creating a hurdle in the way of vaccination drive. They will be dealt strenuously under law. Moreso, such haters do not deserve concession of anticipatory bail, rather their free movement and free speech is a threat to the society at large which requires to be circumscribed in accordance with the law for the general good of the society. Accordingly, the interim bail granted to the petitioner along with his bail application was dismissed.[Ghulam. Jeelani Rather v. UT of J&K, CNR.No.JKKGO10005062021, decided on 02-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Applicant: Advocate Arshad Baba

For the UT of J&K: P.P. Aijaz Ahmad Najar

Case BriefsHigh Courts

Orissa High Court: S. Pujahari, J., dismissed the application under Section 438 of Criminal Procedure Code, 1973 filed by the petitioner being devoid of merits.

A case was registered pursuant to an order of commitment passed in R.C. Case No.31(S) of 2014-Kol. under Section 44(1)(c) of the PMLA Act, by the Special C.J.M. (CBI), Bhubaneswar. Being apprehensive of his arrest by the C.B.I. in connection with PMLA Case No.148 of 2019 on the file of the Special Court under the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as the “PMLA Act”), Bhubaneswar, and present application under Section 438 of CrPC was filed seeking pre-arrest bail.

Counsel for the petitioner Mr Debasish Panda, submitted that the entire transaction of the petitioner with Saradha Group was nothing but a business dealing having no element of criminality, and the C.B.I. is already in possession of all the connected documents of such business transaction. It was further contended that on earlier occasions, the petitioner had shown his willingness and readiness to cooperate with the investigation, and in future also he will make himself available before the C.B.I. for the purpose of further interrogation, if necessary, and there is no necessity of his being taken to custody.

Counsel for the CBI Mr Sarthak Nayak submitted that Since the Supreme Court of India has specifically directed the C.B.I. to investigate larger conspiracy, money trail, roles of regulators etc., the arrest and custodial interrogation of the petitioner by the C.B.I. in the present case involving Saradha Group is essential, inasmuch as it is apparent on record that the petitioner by misusing his media company and adopting an arm-twisting technique against some selective companies dealing with ponzi schemes, extracted crores of rupee which belonged to gullible depositors.

The Court relied on P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 165 wherein it was observed that that grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the Accused and in collecting the useful information and also the materials which might have been concealed and success in such interrogation would elude if the Accused knows that he is protected by the order of the Court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.

The Court further observed that in this case the petitioner has been indicted in an economic offence which is of serious in nature and the larger angle of conspiracy with regard to patronage of political and other persons in growth of such ponzi firms are required to be unearthed.

The Court held “I am of the view that no effective investigation can be made by the police by enlarging the petitioner on pre-arrest bail, even if he is ready and willing to cooperate with the investigation by remaining on pre-arrest bail.”

[Suman Chattopadhyay v. Republic of India, 2021 SCC OnLine Ori 676, decided on 17-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., addressed a matter in regard to child pornography.

An instant petition for anticipatory bail was filed.

Prosecutions’ Case

Petitioner browsed, downloaded and transmitted child pornographic material by using Airtel sim through his e-mail and Facebook Account.

Child Pornography an offence or not?

It is stated that viewing pornography privately will not constitute an offence. As of date, no provision exists that prohibits such private acts and there are even some that elevate it as falling within one’s right to free expression and privacy.

Section 67-B of the Information Technology Act, 2000 penalises every kind of act pertaining to child pornography.

 Whoever publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or facilitates abusing children online, or records in any electronic form own abuse or that of others pertaining to sexually explicit act with children is liable to be punished.

Therefore, even viewing child pornography constitutes an offence.

How the offending activity that took place in a private place came to light?

As per a news report quoting a police officer warning citizens that they must understand that activities on cyber space are always monitored.

It was stated that there is an international NGO called NCMEC (National Center for Missing & Exploited Children) and it maintains a Cyber Tipline. There is a Memorandum of Understanding between the National Crime Records Bureau (NCRB), India and NCMEC, USA and that provides access to the material available with NCMEC. One such Tipline report sent to the respondent police implicated the petitioner.

Further, it was noted that the said occurrence took place almost one year back and appeared to be a one-off act. Hence petitioner was directed to hand over his phone and sim card and other involved devices to the respondent.

Court expressed that custodial interrogation was not warranted.

Expressing that Child Pornography is a serious issue warranting a firm approach, Bench added that it would make a distinction between a one time consumer and those who transmit or propagate or display or distribute in the digital domain.

It is obvious that the moment one steps into digital space, one comes under the surveillance either of the State or those manning the social networking sites. If one is zealous about privacy, the only option is to stay outside such networks. Of course, in the current world, it is not a viable option.

 Though Central and State Governments are mandated to spread awareness under Section 43 of the POCSO Act about the provisions of the State, yet alone the same may not be sufficient since the “Big Brother” watching us may not deter those who are determined to indulge in such acts.

Adding to the above, it was stated that moral education is the only way out.

It is only the Bharatiya culture that can act as a bulwark. The menace of child pornography can be tackled only if all of us inculcate the right values.

 [P.G. Sam Infant Jones v. State, 2021 SCC OnLine Mad 2241, decided on 11-06-2021]


Advocates before the Court:

For Petitioner: Mr. Venkateshwaran. R.

For Respondent: Mr. T. Senthilkumar, Government Advocate (Crl.Side)

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted anticipatory bail to a constable accused of rape and other offences as detailed below.

Instant anticipatory bail application was filed in crime registered under Sections 376(2)(n), 354(5), 417, 419, 427, 504, 506(2), 502 of the Penal Code, 1860 read with Section 66(C) of the Information Technology Act, 2000.

Applicant was attached to constabulary cadre of the Maharashtra Police and was serving at the traffic Department, Malabar Hill, Mumbai.

Complainant developed a close friendship with the applicant after being deployed and the same took the form of a love affair. Later, the complainant alleged that the applicant had suppressed his marital status.

Though the complainant alleged, the applicant had informed her, his wife was psychologically unwell and hence he desired to divorce his wife. Further, in the year 2018, the applicant borrowed money from the complainant from time to time and when she demanded her own money from him, he abused her.

Applicant on the false promise of marriage persuaded the complainant to succumb to physical desires at various places and hotels.

It was also alleged that the applicant had recorded her obscene videos and was threatening to upload the same on social media and disseminate the same to her relatives if she refused to maintain the relationship with him.

Applicant damaged the complainant’s cell phone to cause disappearance of the evidence.

After such incidents, complainant disclosed everything to applicant’s wife. She also added that her proposed marriage broke down, since the applicant sent some objectionable messages to the sister of her fiancé.

Decision

Bench stated that on taking into consideration the facts of the case, prima facie opined that since he has been suspended from service and is available for investigation, a case for granting interim-pre-arrest protection was made.

High Court directed the investigating officer to place the reports for further consideration on 19-07-2021.

Lastly, the Court added that the applicant shall join the investigation as and when called and shall not contact the complainant or influence prosecution witnesses. [Madhav Krishna Vasave v. State of Maharashtra, 2021 SCC OnLine Bom 833, decided on 4-06-2021]


Advocates before the Court:

Mr. S.R. Nargolkar i/by Shri Arjun Kadam for the Applicant.

Ms. P.P.Shinde, APP for the Respondent-State.

Mr. Shrikant S. Rathi for the Complainant/Intervenor.

Case BriefsSupreme Court

Supreme Court: In a case where the Gujarat High Court had stayed the arrest a person accused for offences under sections 376(2)(F), 376(2)(N), 377, 354(A), 354(D), 503, 506(1) and 509 of IPC and sections 66(E) and 67(A) of the Information Technology Act, 2000, the bench of BR Gavai and Krishna Murari, JJ has remitted the matter to the High Court and has asked to record the reasons in support of its order.

The High Court had, while issuing notice on the application for anticipatory bail, directed that the applicant shall not be arrested in the meanwhile.

Stressing upon the need for a reasoned order, the Court said,

“In such serious matter, when the High Court exercised its power of granting ad interim protection from arrest to the respondent no.2 herein, the least that is expected by the High Court is to record some reasons as to why it chooses to exercise its extra-ordinary jurisdiction. From the perusal of the impugned order, it could clearly be seen, that no reason even for namesake has been recorded in the impugned order.”

[Sorathia Bindi v. State of Gujarat, 2021 SCC OnLine SC 419, order dated 01.06.2021]

Case BriefsSupreme Court

Supreme Court: The vacation bench of Vineet Saran and BR Gavai, JJ has stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

The High Court had granted anticipatory bail to one Prateek Jain “on account of special conditions and on special ground”. The applicant had contended that if he is arrested and subjected to the subsequent procedures of detention in lock-up, production before the Magistrate, grant or rejection of bail or incarceration in jail, etc., the apprehension to his life will certainly arise.

In such circumstances, the High Court had noticed that during the compliance of procedures provided under Cr.P.C. or any special act, an accused will definitely come in contact with number of persons. He will be arrested by police, confined in lock-up, produced before the Magistrate and if his bail application is not granted promptly, he will be sent to jail for an indefinite period till his bail is granted by the Higher Court.

“The accused may be suffering from the deadly infections of corona virus, or police personnels, who have arrested him, kept him in lock-up, produced him before the Magistrate and then took him to jail may also be infected persons. Even in jail large number of inmates have been found to be infected. There is no proper testing, treatment and care of the persons confined in jails.”

Challenging the said order before the Supreme Court, Solicitor General Tushar Mehta submitted that the larger issue was involved in the matter, as various directions have been issued by the High Court with regard to grant of bail in the present Covid situation.

The Court, hence, directed,

“Keeping in view the totality of facts and circumstances of the present case, we direct that as far as the general observations and directions in the impugned order are concerned, the same shall remain stayed and the Courts shall not consider the said directions while considering other application for anticipatory bail, which shall be decided on the merit of each case, and not on the basis of observations made in the impugned order.”

Court also appointed Senior Advocate V. Giri as an amicus curiae in the matter.

Warning the respondent Prateek Jain, the Court said that if he fails to appear on the next date of hearing, it shall be considered to be a good ground for cancellation of anticipatory bail granted to him by the High Court.

Read the detailed directions issued by the Allahabad High Court here:

All HC| “Right to life of an accused person can not be put to peril”; Apprehension of being infected with COVID-19 after coming into contact with authorities a valid ground for anticipatory bail

[State of Uttar Pradesh v. Prateek Jain, 2021 SCC OnLine SC 400, order dated 25.05.2021]


Appearances before the Court:

Mr. Tushar Mehta, SG

Ms. Garima Prashad, AAG

Mr. Sarvesh Singh Baghel, AOR

Mr. Abhinav Agrawal, Adv

Case BriefsHigh Courts

Allahabad High Court: When one Prateek Jain approached the High Court seeking anticipatory bail on the apprehension of death due to COVID-19 virus, Siddharth, J has granted anticipatory bail “on account of special conditions and on special ground”.

“… the apprehension of an accused being infected with novel corona virus before and after his arrest and the possibilty of his spreading the same while coming into contact with the police, Court and jail personnels or vice-versa can be considered to be a valid ground for grant of anticipatory bail to an accused.”

The applicant had contended that if he is arrested and subjected to the subsequent procedures of detention in lock-up, production before the Magistrate, grant or rejection of bail or incarceration in jail, etc., the apprehension to his life will certainly arise.

In such circumstances, the Court noticed that during the compliance of procedures provided under Cr.P.C. or any special act, an accused will definitely come in contact with number of persons. He will be arrested by police, confined in lock-up, produced before the Magistrate and if his bail application is not granted promptly, he will be sent to jail for an indefinite period till his bail is granted by the Higher Court.

“The accused may be suffering from the deadly infections of corona virus, or police personnels, who have arrested him, kept him in lock-up, produced him before the Magistrate and then took him to jail may also be infected persons. Even in jail large number of inmates have been found to be infected. There is no proper testing, treatment and care of the persons confined in jails.”

The Court also took note of Supreme Court’s order on limiting the arrests and releasing prisoners to decongest the overcrowded prisons and said that in case this Court, ignoring the same, passes order which will result in overcrowding of jails again it would be quite paradoxical.

“The right to life guaranteed under Article 21 of the Constitution of India is paramount and by mere implication in a case of alleged commission of non-bailable offence, right to life of an accused person can not be put to peril.”

The Court said that the allegations may be serious against an accused but the presumption of innocence in his favour cannot be dispelled only on the basis of the allegation. An accused who has not been subjeced to trial and not even police investigation has been completed against him in many cases, cannot be compelled to surrender and obtain regular bail in the current circumstances.

Even in cases where the police report has been submitted under Section 173(2) Cr.P.C., and summons/ warrants have been issued against him, such an accused is also required to be protected till the threat of novel corona virus to his life is minimized or eradicated and normal functioning of the Courts are restored.

Hence, keeping in view the inadequate medical facilities for treating the large number of persons getting infected day by day, common accused cannot be left unprotected from the threat to his life on account of his arrest by police or surrender before the Court as per the normal procedure applicable to accused persons in normal times.

The Court went on to say that,

“The established parameters for grant of anticipatory bail like the nature and gravity of accusation, the criminal antecedent of the applicant, the possibility of fleeing from justice and whether accusation has been made for injuring and humiliating the applicant by getting him arrested have now lost significance on account of present situation of the country and the State on account of spread of second wave of novel corona virus.”

The Court noticed that while the informant/ complainant may take objection to the relief being granted to the applicant and may be dissatisfied from the observations made in this judgment in favour of accused, they should not lose sight of the fact that only when the accused would be alive he would be subjected to the normal procedure of law of arrest, bail and trial.

“… now the situation has arisen which calls for protection of an accused from infection of novel corona virus and death till the police investigation and, if required, trial is concluded against him. This Court is only granting limited protection to the applicant in view of the mandate of Articles 14 and 21 of the constitution of India. The only remedy available to the person who is implicated for commission of non-bailable offence, against his arrest, is to resort to the remedy of anticipatory bail and it can be granted to an accused on the consideration that the situation at present is not conducive to his subjection to normal procedure of arrest and bail provided under the Criminal Procedure Code.”

The Court, hence, allowed, anticipatory bail to the accused for the limited period, till 03 of January, 2022 on the following conditions:-

  1. The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.
  2. The applicant shall not leave the country during the currency of trial/investigation by police without prior permission from the concerned trial Court.
  3. The applicant shall not obstruct or hamper the police investigation and not play mischeif with the evidence collected or yet to be collected by the Investigating Officer of the police;
  4. The applicant shall surrender his passport, if any, to the concerned Court/Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.
  5. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade his from disclosing such facts to the Court or to any police officer;
  6. The applicant shall maintain law and order.
  7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment before the trial court on the dates fixed for evidence and when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
  8. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government Advocate/informant/complainant can file bail cancellation application.
  9. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of her bail and proceed against him in accordance with law.
  10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
  11. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
  12. The applicant is warned not to get himself implicated in any crime and should keep distance from the informant and not to misuse the liberty granted hereby. Any misuse of liberty granted by this Court would be viewed seriously against the applicant in further proceedings.

[Prateek Jain v. State of UP, 2021 SCC OnLine All 303, order dated 10.05.2021]

Counsel for Applicant :- Avnish Kumar Srivastava,Priyanka Sharma

Counsel for Opposite Party :- G.A.,Vidya Prakash Singh

Case BriefsHigh Courts

Chhattisgarh High Court: Manindra Mohan Shrivastava J., granted anticipatory bail and set aside the impugned rejection order on the ground of patent illegality.

The applicant was apprehending his arrest for the offence punishable under Section 294, 324, 506 of Penal Code, 1860 i.e. IPC and Section 3(2) (v) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e. Act of 1989 registered at Police Station Gole Bazar, Raipur, District Raipur. The applicant had applied for grant of anticipatory bail before the Court below which was rejected due to the bar created under Section 18 of the Act of 1989 and opining that as the allegations against the applicant is of the commission of offences not only under IPC but also under Section 3(2) (v) (a) of the Act of 1989, the application is not maintainable. Aggrieved by this rejection order, the applicant filed the instant appeal.

Counsel for the appellants submitted that there is a bar against an entertaining application for grant of anticipatory bail where the accused is alleged to have committed offence under the Act of 1989, in appropriate cases when no prima facie case is made out, in exceptional cases, the benefit of anticipatory bail could be extended.

Counsel for the State submitted that in the present case, admittedly, the prosecutrix belonged to reserved category and the applicant and the prosecutrix were friend and when they were going on for a ride in the vehicle of the applicant, the applicant fully knowing that the prosecutrix belonged to reserved category, gave her assault, resulting in injury, therefore, prima facie case under Section 3(2)(v) (a) of the Act of 1989 would definitely made out and that would bar application for grant of anticipatory bail in view of the provisions contained under Section 18 of the Act of 1989.

The Court relied on judgment Khuman Singh v. State of Madhya Pradesh, 2019 SCC Online SC 1104 wherein it was held

  1. The object of Section 3(2)(v) of the Act is to provide for enhanced punishment with regard to the offences under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property knowing that the victim is a member of a Scheduled Caste or a Scheduled Tribe.
  1. In Dinesh alias Buddha v. State of Rajasthan, (2006) 3 SCC 771, the

Supreme Court held as under:-

“15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

  1. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar”-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 

The Court further relied on judgment Prathvi Raj Chouhan v. Union of India, (2020) 4 SCC 727 wherein it was observed:

  1. “The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.
  2. The challenge to the provisions has been rendered academic. In view of the aforesaid clarifications, we dispose of the petitions.
  3. Ravindra Bhat, J. (concurring)– I am in agreement with the judgment

proposed by Arun Mishra, J. as well as its conclusions that the challenge to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) (Amendment) Act, 2018 must fail, with the qualifications proposed in the judgment with respect to the inherent power of the court in granting anticipatory bail in cases where prima facie an offence is not made out. I would however, supplement the judgment with my opinion.”

The Court thus observed that the offence under Section 3(2)(V)(a) of the Act of 1989 would be prima facie made out only when the allegation by the victim is that the victim was assaulted on the ground that victim belonged to reserved category or where material collected during investigation prima facie shows that the victim was assaulted for the reason that he/she belonged to reserved category.

The Court thus held that

“Even though, offence under the Act of 1989 is registered, where application for grant of anticipatory bail is filed, the Court is required to apply its mind to the relevant provisions of law and considerations as specified by the Supreme Court in the case of Prathvi Raj Chouhan(supra) and if material on record leads to satisfaction that the complaint does not make out a prima facie case, for applicability of the provisions of the Act of 1989, the bar created under Section 18 of the Act of 1989 shall not apply and in appropriate cases of exceptional nature, benefit of anticipatory bail could be admitted to the applicant”.

In view of the above, impugned order was set aside and appeal allowed.[Pavas Sharma v. State of Chhattisgarh, 2021 SCC OnLine Chh 288, decided on 22-01-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.

Background

On 27 August 2020, a Muslim woman lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019, alleging that in December 2019, her husband pronounced talaq three times at their house. Following this, he entered into a second marriage.

The Kerala High Court, on November 2, 2020, while declining to grant anticipatory bail observed:

“If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife when the matrimonial relationship with the de facto complainant is in existence.”

However, the order of the High Court contained no reason why the appellant, i.e. the mother-in-law of the complainant, was being denied anticipatory bail.

The first petitioner is the spouse of the complainant and second petitioner is the mother of the first petitioner. Supreme Court had, on December 3, 2020, refused to entertain the Special Leave Petition by the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

The Court was now called upon to decide whether the High Court was right in refusing to grant anticipatory bail to the appellant i.e. the mother-in-law of the complainant.

Analysis

Who is punishable for the offence of pronouncement of triple talaq?

The Muslim Women (Protection of Rights on Marriage) Bill 2019 was introduced in the Parliament to give effect to the ruling of this court in Shayara Bano v. Union of India, (2017) 9 SCC 1, and “to “liberate” Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men.”

The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment.

“Thus, on a preliminary analysis, it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man.”

Does Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC?

Under clause (c) of Section 7, Parliament has provided that no person who is accused of an offence punishable under the Act shall be released bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom the talaq is pronounced, is satisfied that there are reasonable grounds for granting bail.

The statutory text indicates that Section 7(c) does not impose an absolute bar to the grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced.

Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person.

“This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married Muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused.”

Further, the legislature has not expressly barred the application of Section 438 of CrPC. The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained certain other statutes which expressly exclude the provisions of Section 438 of the CrPC.

Hence, on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, it was held that there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman.

[Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, order dated 17.12.2020]


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

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

For Second Respondent i.e. the complainant: Senior Advocate V. Chitambaresh, and advocate Harshad V. Hameed,

For State of Kerala: Advocate G. Prakash

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

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 BriefsHigh Courts

Kerala High Court: V.G. Arun J., while dismissing the present appeal clarified on the applicability of Section 438 Criminal Procedure Code, 1973 in an offence under SC/ST (POA) Act.

 Brief Facts

Appellants are the accused of offences punishable under Sections 341, 294(b) and 506(i) read with Section 34 of the Penal Code, 1860 and Sections 3(i)(s) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act; ‘SC/ST (PoA) Act’. The prosecution allegation is that on 24-07-2020, the appellants illegally restrained the de facto complainant; a lady belonging to Scheduled Caste community and abused her by calling her caste name. The anticipatory bail application filed before the Special Court was rejected, finding that from the FIS, FIR and other materials, a prima facie case was made out against the accused. The Special Judge further referred to the bar under Section 18A(2) of the SC/ST (PoA) Act to hold the application under Section 438 CrPC to be not maintainable. 

Contentions

Counsel for the appellants, C.K. Mohanan, contended that the allegations in the complaint are false and was made at the instigation of the de facto complainant’s employer, who is a political leader. It was further contended that even if the allegations are accepted in their entirety, no serious offence so as to deny anticipatory bail to the appellants is made out.

Special Public Prosecutor, Ambika Devi opposed the prayer for pre-arrest bail and submitted that a hapless lady was illegally restrained, abused, intimidated and insulted in public by calling her caste name and that such acts can, by no stretch of imagination, be termed as petty offences for the purpose of the SC/ST (POA) Act, 1989. The rigor of Section 18 and 18A(2) of the Act was highlighted with the aid of the recent decision of the Supreme Court in Prithvi Raj Chauhan v. Union of India, (2020) 4 SCC 727. It was further pointed out that the Special Judge, after perusing the relevant records have concluded that there exist a prima facie material to attract the alleged offences and that there is no reason for deviation of the present Court as such.

Decision

Concurring with the findings of the lower Court, the Court held, “Anticipatory bail can be granted for offences under the Act only in the event of no prima facie case being made out. The Supreme Court has alerted the courts to be cautious while exercising such power.”[Mohandas C. v. Sub Inspector of Police, 2020 SCC OnLine Ker 4783, decided on 28-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., considering the peculiar facts of the present case, allows anticipatory bail to a proclaimed offender, imposing several conditions.

 Brief Facts

On the allegations made by a girl, aged 15 years, against the petitioner of having coitus with her at the end of May 2013, by entering her home and also committing rape on her in the forest on 30-06-2013, when she was returning from school, the police registered FIR dated 19-07-2013, under Sections 376, 506 of the Penal Code, 1860, and Section 4 of Protection of Children from Sexual Offences Act, 2012, disclosing cognizable and non-bailable offences.

The police conducted the investigation, took the victim for her medical examination, got her statement recorded under S. 164 CrPC, but failed to nab the accused. Subsequently, the police filed a charge sheet without arresting the accused. After taking cognizance of the offence, the Court issued Non-bailable Warrants (NBW) and upon its non-execution, allowed the application of the prosecution and proceeded against the accused under Section 82 CrPC, declaring the petitioner as a proclaimed offender. It is to be noted that the contents of the bail petition and the status report do not reveal any criminal history.

Counsel for the petitioner

Abhilasha Kaundal, Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Further, the conduct of the accused applicant must be taken into account as much as, being declared a proclaimed offender, the petitioner voluntarily approached this Court by filing a petition for anticipatory bail. Accused explains that he and the victim were in love, and to make out an exceptional case, further states that on noticing that the girl had an affair with one Jyoti Prakash, he became melancholic and left for a distant place, far away from her. Accused further contends that due to the Lockdown of the COVID-19 pandemic, he was forced to return home and got information that an FIR was lodged against him, and that he is a proclaimed offender.

Counsel for the respondent

While opposing the bail, Nand Lal Thakur, Additional Advocate General contended that an absconder whom the Court has declared as a proclaimed offender has no legal rights to file an application under Section 438 CrPC.

Opinion of the Amicus

Ashok Tyagi, Amicus Curiae carved out a distinction in the pronouncements of Supreme Court and states that this Court has the jurisdiction to grant anticipatory bail, in peculiar facts, even to a proclaimed offender.

 Observations

The Court, in addition to its decision, cited the following cases;

  • Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, on the position of anticipatory bail against a proclaimed offender; “Para 10. (…)Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.”
  • State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, reiterated the rationale of the aforementioned case.
  • Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42, A three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires a change in fact or situation. 
  • Dataram Singh v. State of U.P., (2018) 3 SCC 22, “…grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions.”
  • Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, A Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions on the grant of bail.

Decision

In the light of the precedent cited and the facts of the case, the Court allowed the bail application remarking, “Pre-trial incarceration needs justification depending upon the offense’s heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.” Moreover, the Court enumerated a list of conditions that the applicant must abide by, during the course of bail.[Mahender Kumar v. State of Himachal Pradesh, 2020 SCC OnLine HP 2119, decided on 26-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together