anticipatory bail

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. granted anticipatory bail to the petitioners and observed that the Court is under constitutional obligation to safeguard the interests of the victim, the accused, the society and the State while granting anticipatory bail.

The factual matrix of the present case is as follows:

The complainant Angesh Vimal, ASTEO NPB, Baddi, on receiving secret information about a  truck transporting illicit liquor stopped the truck in Baddi area which was bound from Panchukala to Mandi and nabbed the driver Mohinder Singh, conducted inquiries and it was revealed that the truck contained eggs but on further search, huge quantity of liquor of brand Una No. 1 was recovered. The Complainant then informed Suresh Thakur, ACSTENPB, Baddi and the police who reached at the spot within few minutes who on seizure and unloading recovered 835 boxes of illicit liquor without any permit. He revealed that contractor Kamal Kishore who is the owner of the liquor had got these boxes loaded at Panchkula and was escorting this truck in his XUV vehicle. Kamal Kishore was investigated and arrested and the truck was found to be of Manoj Kumar who was in the business of illicit trafficking of liquor and has vends in Ghumarwin. He further revealed that he has purchased liquor from Naushad Alam, and his associate from Delhi, Kulwinder was arrested who revealed that Naushad Alam works in a liquor factory near Kala Amb. Later, police on bringing Kulwinder from Delhi to Baddi came to know that Naushad Alam works in Himachal Spirit Company as Manager.

The petitioner Mohammad Junaid was apprehending arrest and hence the instant petition under Section 438 CrPC.

The present case is represented by counsel Javed Khan for the petitioners and Rita Goswami and Nand Lal Thakur with Yudhbir Singh Thakur for the respondents.

The Court relied on the Judgments Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 and held that custodial investigation of the petitioner/accused is not going to serve any purpose. Few factors and parameters can be taken into consideration while dealing with the anticipatory bail and no inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. The question of whether to grant bail or not depends on its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”

In view of the above facts, arguments and observations, the prayer was granted.[Mohammad Junaid v. State of H.P., 2020 SCC OnLine HP 296, decided on 28-02-2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

While all 5 judges gave a unanimous verdict, MR Shah and Ravindra Bhat, JJ gave elaborate separate opinions.

Justice Shah was of the opinion that the normal rule should be not to limit the operation of the order in relation to a period of time. He, however, added,

“the conditions can be imposed by the concerned court while granting pre­arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed.”

Justice Bhat in his opinion wrote:

“it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.”

Summary of the verdict

Whether the protection granted to a person under Section 438 Cr. PC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?

The protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?

The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Points to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

  • When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts such as relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story, and not vague or general allegations, relatable to one or other specific offence.
  • Depending on the seriousness of the threat of arrest the Court should issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
  • Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The   need   to   impose   other   restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency.
  • Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it.
  • Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
  • An order of anticipatory bail should not be “blanket” in the sense that it cannot operate in respect of a future incident that involves commission of an offence.
  • An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­arrest bail.
  • If and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.
  • It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term.
  • The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2) Cr.P.C.

Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine SC 98, decided on 29.01.2020]

Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J. allowed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

The applicant here is the accused in Crime No. 1158 of 2019, for offences punishable under Sections 418 and 420 of the Penal Code which was registered at Muhamma police station, and then the FIR was forwarded to SHO for investigation than to the Judicial First Class Magistrate.

The facts of the case are that the de facto complainant is the Managing Director of the Company-Brothers Coir Mills Pvt. Ltd., registered under the Companies Act, 2013, engaged in the business of manufacturing and exporting of coir products. The brother of the de facto complainant, John Jose, is one of the Director Board Member of the company. The accused worked as Senior Accountant of the company from 01-03-2017 to 31-08-2019.

The counsel for the respondent, B. Jayasurya, public prosecutor, contended that while the accused worked as a Senior Accountant of the company, he misappropriated the company funds in his own name. The total amount that he misappropriated was Rs 17,05,856. Hence, on this basis, the counsel contended that the accused should not be granted anticipatory bail. The counsel for the respondent hence was in the favour that there is a need for the custodial interrogation of the accused and recovery of the money.

The learned counsel for the petitioner, C.K. Sajeev, contended that for proper payments of the TDS amount due from the Company and to prevent hacking account from internet, the misappropriated amount was paid from the account opened in the name of the Director, namely, John Jose, who is the brother of the de facto complainant. The amount was transferred from the Current Account of the Company which was maintained with the South  Indian Bank Ltd. to the Current Account maintained and operated by the Board in the SME branch of the State Bank of India.

Section 148 of the Penal Code states that in case the accused cheats with the knowledge that he is likely to cause wrongful loss to a person whose interest is the transaction to which the cheating relates, he is bounded to be punished. The prosecution is bound to prove a legal contract.

Section 420 provides that in case where the accused cheats and dishonestly induces the person deceived to deliver any property to any person, to make or destroy or alter, whole or any part of a valuable security, which is signed or sealed and is capable of being converted into valuable security shall be punished as per Section 420.

The Court after perusing the documents came to the conclusion that there was some dispute between the Board of the Directors of the company and the petitioner, therefore, initiated the prosecution for no reason. The Court hence allowed the anticipatory bail with following directions:

  1. the petitioner will be released on bail in the event of arrest by executing a personal bond of Rs 50,000 along with two solvent sureties each for the amount to the satisfaction of the arresting officer.
  2. the petitioner will have to appear before the Investigating Officer every Monda between 10 a.m. and 1 p.m. for a period of 3 months or till the charge sheet is filed, whichever earlier.
  3. the petitioner should not in any manner intimidate or influence the prosecution witnesses
  4. in case of violation, it is open to the Court having jurisdiction over the case to cancel his bail without any further orders from the Court.[Balaji A.S. v State of Kerala, 2019 SCC OnLine Ker 6057, decided on 27-12-2019]
Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J. allowed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

The applicant of this bail is the accused in Crime No. 2227 of 2019 of the Sasthamkotta Police Station in Kollam District. The applicant was accused of committing offences punishable under Section 498-A of the Penal Code.

The contentions made by the counsel for the complainant, C.N. Prabhakaran, are that the wife of the accused is the de facto complainant. The de facto complainant got married to the accused on 5-11-2018. After that the wife lived at the matrimonial home of the accused of 3 months where she alleged was treated with cruelty and was mistreated. The wife filed a petition before District Police Chief, Kollam against the accused of the same reasons.

The contentions made by the counsel for the petitioner, M.R. Jayalatha, are that the accused filed O.P. No. 982 of 2019 before the Family Court and alleged that the wife has stolen the gold ornaments which were entrusted with her by the applicant’s family after the marriage.

After hearing both the sides, the Court held that both the parties are in a matrimonial dispute and the Original Petition is already pending in the Family Court. The Court held that because the matter is matrimonial, the petitioner can be granted the bail-in case he gets arrested. Though the Court laid down certain conditions-

  1. the petitioner will be granted the bail-in case of arrest, but he will have to execute a personal bond of Rs 50,000 along with bonds of two solvent sureties amounting to the satisfaction of the arresting officer
  2. the petitioner will have to make himself present before the Investigating Officer, as when directed
  3. the petitioner will not intimidate or influence the prosecution witness
  4. in case of non-compliance with the order of this Court, the Court having jurisdiction over the case can cancel his bail. [Sunil Kumar v. State of Kerala, 2019 SCC OnLine Ker 6060, decided on 27-12-2019]
Case BriefsHigh Courts

Karnataka High Court: H.T. Narendra Prasad, J. while allowing the bail petition imposed stringent conditions because of the objections raised by the prosecution in regard to the tampering of witnesses.

In the instant case, the complainant, police inspector received credible information that at Royal Palace Lodge some people were engaged in prostitution. He reported the information to his superiors. Thereafter, he raided the place with other police personnel (including women personnel). They found a man and a woman in a semi-nude state in a room. Upon enquiry, the man told that he paid the lodge manager Rs 600. On this basis, the police registered an FIR for the offence punishable under Sections 3, 4 and 7 of the Immoral Trafficking (Prevention) Act, 1956. Hence the petitioner-accused 3 sought for anticipatory bail.

Counsel for the Petitioner, Vitthal S. Teli, submitted that the petitioner is innocent and had committed no crime. The offences alleged are not punishable with death or imprisonment. Hence, the petitioner sought anticipatory bail.

However, HCGP for the Respondent-State, Seema Shiva Naik, submitted that there were prima facie materials against the petitioner for the commission of the alleged offences and the petitioner certainly would be harmful to the prosecution witness. Therefore, no bail should be granted.

The Court after analyzing the facts and circumstances of the case observed that at this particular stage where there is no material other than accused’s 1 and 2 returning the collected money to the petitioner and victim, bail can be granted. [Rajesh Shetti v. State of Karnataka, 2019 SCC OnLine Kar 2216, decided on 25-10-2019]

Case BriefsHigh Courts

Karnataka High Court: Ashok G. Nijagannavar, J. while allowing this criminal petition directed the petitioner to appear before the Investigating Officer and such Officer shall interrogate him and enlarge him on bail.

In this instant petition, the petitioner prays for anticipatory bail which has already been rejected by the Sessions Court for the offences punishable under Sections 420 and 417 read with Section 34 IPC.

The complainant Vijayalaxmi was an agent in Jana Sneha Wealth Real Wealth Solutions Private Ltd. Different posts were held by the accused persons in the company. The nature of the work of the agents was such that they were instructed by the Directors to collect deposits from the general public by assuring them of a higher rate of interest and to get double the amount of deposits within five years and six months.

After demonetisation hit India, the accused persons started avoiding repayment to the customers. Since then, the complainant and other agents had collected nearly a crore from the customers. In December 2017, in order to make illegal gains with dishonest intentions, the accused persons locked the company. Hence, he committed fraudulent acts. After registering the case, the petitioner is being on a lookout by the Police.

Counsel for the petitioner, B. Anwar Basha submitted that the petitioner had resigned from the post and after that, the remaining accused persons established the Udayamabag Branch of the Company. The petitioner is in no way concerned with the activities of neither the accused persons nor any fraudulent transactions.

Counsel for the respondent-State, Seema Shiva Naik, HCGP submitted that all the accused persons had collected huge amounts of money from the innocent customers and later had failed to pay.

After analyzing the submissions of the parties, the Court observed that the petitioner had resigned and later on after five years the complaint was filed. Moreover, the time the petitioner left there were no allegations as to any fraudulent acts.

Therefore, the Court granted the petitioner an anticipatory bail as the grounds mentioned in the petition rightly suggests the actual apprehension of getting arrested. [Venugopal Vaidya v. State of Karnataka, 2019 SCC OnLine Kar 2095, decided on 15-10-2019]

Case BriefsHigh Courts

Delhi High Court: Brijesh Sethi, J. dismissed a criminal writ petition challenging the order of the Special Judge (Prevention of Corruption) whereby proceedings against the petitioner under Section 83 CrPC (attachment of property of person absconding) were initiated.

The petitioner was involved in a case under Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Sections 120-B and 420 IPC. Pritish Sabharwal, Advocate for the petitioner, submitted that the Sessions Judge had initiated proceedings under Section 83 against the petitioner and directed attachment of his movable and immovable property where the petitioner’s old wife and his daughter are residing. It was submitted that they would be evicted forcefully within 48 hours and they did not have other places to reside in. It was further submitted that the petitioner was not deliberately evading arrest; he has filed a writ petition for quashing of the FIR which was reserved for orders by the High court. Sanjay Lao, Additional Standing Counsel for the State, submitted that anticipatory bail filed by the petitioner was rejected by the Supreme Court and he is evading arrest.

The High Court noted that in the case against the petitioner under PC Act, he had moved an anticipatory bail which was first dismissed by the trial court, then by the High court, and finally by the Supreme Court. It was further noted that the petition for quashing of the FIR was filed approximately one month after the dismissal of the anticipatory bail application by the Supreme Court. The Court was of the view that the petitioner, whose anticipatory bail was dismissed by the Supreme Court, ought to have surrendered himself before the Investigating Officer or the Court concerned.

The court found no grounds to quash the impugned order. It was held that the petition for the quashing of FIR would, no doubt be decided by the High Court in due course including the issue of its maintainability. However, the proceedings initiated by the IO under Section 83 CrPC could not have stayed at the initial stage. The IO was carrying out the proceedings as per law and no interference was required from the Court in that regard.

In such view of the matter, the instant criminal writ petition was dismissed. [Pawan Kamra v. State, 2019 SCC OnLine Del 10665, decided on 01-10-2019]

Case BriefsHigh Courts

Delhi High Court: Brijesh Sethi, J. rejected a bail application filed under Section 348 read with Section 482 CrPC, in a very shocking and nerve-wracking incident and held that,

“Child of tender age should be handled very carefully and he/she needs to be protected from every kind of hurt whether physical or mental.”

The instant matter pertains to the fact that ‘X’ was the only daughter of the complainant who was studying in Class VII. Daughter of the complainant had been asking the complainant to change her school for last three months for which the complainant had asked her the reason and ‘X’ stated that “the atmosphere in the school is not good”, Complainant assured her daughter that she would change her school soon after the session ends.

On 30-11-2018, the daughter of the complainant came weeping from school and in the evening told the complainant that she will not go to school the next day, therefore she stayed home on 1-12-2018. Complainant being an Advocate by profession went to the Court around 1 p.m. on that day and asked ‘X’ to take help from her grandmother who lived nearby.

In the evening of the same day, as stated above, Complainant came early from work and knocked on the door repeatedly but the same was not opened after which she took the help of her neighbours and saw that her daughter (‘X’) was hanging with the ceiling fan.

In the above view of facts, Investigation Officer recorded the complainant’s statement. Case of the prosecution is that, at the time when the dead body was being moved, the doctor at the hospital noticed something written by pen on both hands and palms of the deceased. Following was written on one palm of the deceased:

“meri maut ki khabar school tak jarur pahuchana”.

Some persons and children from the neighbourhood told the petitioner that her daughter was being abused and tortured by class teacher Arti Singh and Biology Teacher Ritika. The daughter of the complainant was found running to the toilet to commit suicide but was stopped by classmates. She had said goodbye to all and also told that she would not come to this school again and she would commit suicide at home. These facts were told to the complainant by classmates of her daughter and neighbourhood children.

At the place of suicide, one notebook was also found lying on the bed which contained a suicide note and the same runs as follows:-

“Vo teachers app ko ja bhi Bola di vo sab jhute ha, mujhe pata ha app sab unki hi batt mano ja, that is why am committing sueside, please rona mat pls bye. That is why maa ajj school nahi gauya buye, mujha 6 class ka batcho na fasaya ha, ya mari pouri class to pata ha, because of my class teacher Arti Ma’am and Ritika Ma’am, bye I love you all last time for me 3:30 bye”

“Mummy and Nani I hate tears bye app jasi family har kisiko mila, mummy rona mat or nahi ko bhi mat rona dena app donoka eyes ma asu acha nahi lagaga, bye mummy bye bye nani I am going to die bye”

Apart from the above suicide note, some words were also written on right and left palms and left hand of the deceased which are as follows:-

On the right palm, the following sentence was written:-

“I love U Mummy and Nani”

On the left hand, the following sentence was written:-

“Jai Shri Krishna I am coming, Last 4:00 Bye”

On the left palm, following words were written:-

“mara suside ki khabar school tak zarur pahuchana, bye word.”

Counsel for the petitioner, Rashid Azam, submitted that the complainant has concocted a false story to falsely implicate the petitioner. The only thing, the petitioner can remember is that one of the students from her class namely Parth Uttam has been in a lot of indulgence with the deceased child to which the applicant had scolded Parth Uttam to concentrate on his studies.

He further submitted that, the act of abetment of suicide cannot be read in isolation and has to be read with Section 107 of Penal Code, 1860 which carries the wisdom to distinguish what constitutes instigation and what does not. It is further submitted that the suicide note was planted later on by the complainant in order to implicate the petitioner.

Neelam Sharma, APP for the State, submitted that, photographs and suicide note of deceased clearly indicate that the school teachers particularly the petitioner abetted in committing suicide by the deceased. Deceased has categorically mentioned the name of the petitioner in the suicide note and there is no reason to disbelieve the version of the deceased it being a dying declaration. In order to elicit the truth, custodial interrogation of the petitioner would be necessary.

Decision of the Court

On careful perusal of the suicide note, photographs pertaining to the words written on the right and left palms and left hand of the deceased child and statement of witnesses recorded under Section 161 CrPC, the bench dismissed the anticipatory bail application.

Court noted that, deceased child specifically mentioned the words in her suicide note “because of my class teacher Arti Ma’am and Ritika Ma’am”. This clearly indicates that something wrong must have happened with the deceased in the school/class.

Mental condition of the deceased child and her frustration due to the behaviour of the teachers can also be judged from the message wherein she has written that “mara suside ki khabar school tak zarur pahuchana, bye word”.

The material recorded, prima facie reveals that the deceased was compelled to take such a drastic step because of deep mental pain/ hurt caused by the alleged misbehaviour and hostile treatment extended to the deceased by the petitioner. It is highly improbable that a child of tender age would implicate her teacher falsely and without any reason.

In the opinion of the Court prima facie, there are serious and direct allegations of abetment of suicide against the petitioner which are difficult to ignore.

Thus, keeping in mind the nature of offence, statement of witnesses appearing on record and particularly, the apprehension expressed by the State about the likelihood of the witnesses being influenced and evidence being tampered with, this Court is not inclined to grant anticipatory bail to the petitioner. [Ritika v. State, 2019 SCC OnLine Del 10573, decided on 16-10-2019]

Case BriefsSupreme Court

Supreme Court: Holding that the Court should not have encroached upon the field reserved for the legislature, the 3-judge bench has partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018. The 3-jduge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that some portions of the said verdict were against the concept of protective discrimination in favour of down­trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.

The guidelines laid down in the March, 2018 verdict were:

(i) Proceedings in the present case are clear abuse of process of court and are quashed.

(ii) there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.

(iii) arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

(iv) to avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

(v) any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.

Challenging the said verdict, the Union of India argued that Section 18 of the Act of 1989 has been enacted to take care of an inherent deterrence and to instil a sense of protection amongst member of Scheduled Castes and Scheduled Tribes. It submitted,

“any dilution of the same would shake the very objective of the mechanism to prevent the offences of atrocities. The directions issued would cause a miscarriage of justice even in deserving cases.  With a view to object apprehended misuse of the law, no such direction can be issued.”

Accepting the contention, the Court held that the guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221.

“The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above.”

It further said that directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment made in the Rules in the year 2016, a charge sheet has to be filed to enable timely commencement of the prosecution. The directions issued are likely to delay the timely scheme framed under the Act/Rules.

Considering the plight of the members of the Scheduled Castes and Scheduled Tribes, the Court said that the SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. It said,

“if we cannot provide them protective discrimination beneficial to them, we cannot place them at all at a disadvantageous position that may be causing injury to them by widening inequality and against the very spirit of our Constitution. It would be against the basic human dignity to treat all of them as a liar or as a crook person and cannot look at every complaint by such complainant with a doubt.”

The Court also noticed that there is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. It said that the members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor.

“There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under section 482 of the Cr.PC.”

The Court, hence, held,

“we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes.”

[Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, decided on 01.10.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J, allowed the application granting anticipatory bail to the petitioner subject to the conditions as laid down under Section 438(2) Criminal Procedure Code, 1973.

In the pertinent case, the petitioners filed the petition under Article 226 of the Constitution of India seeking a direction for grant of protection of life, liberty and dignity, which according to them, is under threat. The petitioners are alleged to be of marriageable age based upon the date of birth, 01-03-1986 in case of petitioner 1 and 07-09-1994 in case of petitioner 2 and both the petitioners were major and voluntarily, they have performed marriage on 26-03-2019 at Arya Samaj, Lohamandi Kilagate, Gwalior. Both the petitioners have claimed themselves to be more than 18 years of age at the time of solemnization of marriage in question.

Counsel for the petitioners has placed reliance on the decision of Supreme Court in the case of Lata Singh v. State of U.P. (2006) 5 SCC 475.

Thus, the High Court held that

“if protection is sought by the petitioners against any harassment or intimidation against their life, liberty and dignity arising out of the marriage solemnized by them, the same would be granted to them by the respondents/police authorities, on verifying the factum of marriage and age in accordance with law and in terms of decision of the Supreme Court in the case of Lata Singh v. State of U.P. (2006) 5 SCC 475.”[Ravi Prakash Kushwaha v. State of M.P., 2019 SCC OnLine MP 2624, decided on 17-09-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. allowed the anticipatory bail petition in a suicide case. 

A petition was filed for the grant of anticipatory bail for the FIR registered for the offence committed under Section 365 of the Penal Code. 

The brief facts of the case were that complainant’s sister was married for about 22-23 years and was repeatedly beaten by her in-law and thus she left the house and was residing at her paternal house. The complainant’s sister was threatened to be killed by the petitioner and one day when went missing. On her search, a suicide note was found. It was thus alleged that the petitioner had killed the complainant’s sister. 

Manu Loona, Counsel for the petitioner submits that he was falsely implicated and that the complainant’s sister was living at her own will at her parental house. It was further submitted that complainant sister committed suicide under depression and also presented the suicide note in which she has not blamed anyone for such action. 

Kirat Singh and Peeush Gagneja, Counsel for State and Complainant submit that case where the dead body was recovered and since apparently the relations between the deceased and the petitioner were not cordial as the deceased had recently filed an application under the Domestic Violence Act, the involvement of the petitioner was prima facie evidence. It was further submitted that the handwriting and signature existing on the suicide note did match the complainant’s handwriting and signature. 

The court opined that case especially the fact that as per the suicide note, the deceased has virtually given a clean chit to the petitioner and has stated that she was committing suicide on account of her mental pressure and problem; in my opinion it is not a case warranting custodial interrogation. The petition was allowed and the petitioner was directed to abide by the conditions provided under Section 438(2) of the Code of Criminal Procedure. [Balveer Singh v. State of Punjab, 2019 SCC OnLine P&H 1529, decided on 27-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. made absolute the interim application for bail in a matrimonial case.

An application for anticipatory bail was made by the petitioner for the offence registered under Sections 323, 325, 326, 406, 506, 498-A, 34 of the Penal Code.

The facts of the case were that FIR was registered at the instance of the petitioner’s wife wherein it was alleged that she was married to the petitioner and had a child from the wedlock. The petitioner and his family used to harass and beat her for no reason. It was also submitted that in-laws of the petitioner had retained all her jewellery articles.

Gautam Dutt, counsel for the petitioner submitted that though there was some matrimonial discord between the parties the complainant herself caused injuries to the petitioner. It was further submitted that complainant is all out to wreak vengeance and went to the extent of leveling allegations of rape against the petitioner’s father which upon inquiry by police were found to be false.

Aditi Girdhar, counsel for the state submitted that one of the injuries found on the person of the complainant has been opined to be grievous injury attracting an offence punishable under Section 325 IPC and that in these circumstances since the allegations stand substantiated, no case for grant of anticipatory bail was made out. It was informed that the alleged jewellery articles, as well as car, were recovered.

The court opined that as the petitioner had already joined the investigation and had got the articles of the dowry and thus petition was accepted and the interim directions by the court were made absolute subject to the condition that petitioner would appear before investigating officer and when called upon to do so and cooperate with the investigating officer.[Nitin Yadav v. State of Haryana, 2019 SCC OnLine P&H 1480, decided on 19-08-2019]

Hot Off The PressNews

As reported by PTI, the Single Judge Bench of Mukta Gupta, J. granted anticipatory bail to an Air India Pilot. He was accused of violating the aircraft rules.

The pilot was accused of forgery and evading the breath-analyzer test.

Pilot had refused to go through the breath analyser test in 2017 before taking the flight from Delhi to Bengaluru and he refused the same when he landed due to which he was suspended for a period of 3 years by DGCA.

“The Court had earlier restrained the police from taking coercive steps against Kathpalia, who was removed as the director of operations of Air India last November after failing to clear pre-flight alcohol test, with the government citing “serious nature of the transgression and (his) failure to course-correct.”

[Judgment Awaited]

[Source: PTI]

Hot Off The PressNews

In a recent press release, State of Uttar Pradesh announced the re-insertion of the provision of “Anticipatory Bail” in the State which was removed at the time of “emergency”.

The Amendment was approved by the President on 01-06-2019 and has been brought into force with effect from 06-06-2019.

As per the Press Note, the provision of Anticipatory Bail was omitted by the Criminal Procedure Code (Uttar Pradesh Amendment) Act, 1976.

Several writ petitions were filed to re-introduce the same. A Committee was constituted under Principal Secretary, Home Department, Government of Uttar Pradesh and the Committee had forwarded its suggestion to re-introduce Section 438 CrPC.

Hence, the said Amendment was approved by the President on 01-06-2019 and has been brought into force with effect from 06-06-2019 through a gazette notification.

[Picture Credits: uphome.gov.in]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside an anticipatory bail order on the ground that pre-requisites for issuing such an order were not satisfied.

In the present case, the High Court of Lahore granted anticipatory bail to one Muhammad Akram who was required in a criminal case registered under Section 489-F of Pakistan Penal Code, 1860 upon failure of a bank cheque issued by him towards re-payment of loan. The learned judge confirmed ad-interim bail on the ground that respondent did not ‘misuse’ ad interim bail and that he was going to be released on post-arrest bail if at all, remitted into custody.

The Court opined that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trumped-up charges through abuse of process of law. Therefore, a person seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide.

Reliance was placed on Hidayat Ullah Khan v. Crown, 1948 SCC OnLine Lah 20 wherein it was held that, anticipatory bail is granted to protect innocent beings from abuse of process of law, therefore a petitioner who sought anticipatory bail should have been able to demonstrate that intended arrest was with malafide intentions or abuse of process of law, wherein Court must not hesitate to rescue innocent. But in the case at hand, these situations were missing.

Thus, the impugned order was set aside as it was not in accordance with settled judicial principles and anticipatory bail granted to the private respondent was set aside.[Rana Abdul Khaliq v. State, 2019 SCC OnLine Pak SC 6, decided on 13-05-2019]

Case BriefsHigh Courts

Gujarat High Court: Dr A.P. Thaker, J. passed an order to grant anticipatory bail for the offences punishable under Section 3(1)(r)(s) and 3(2)(v-a) of the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

An appeal was made to the court after an application for anticipatory bail was rejected by the Special Judge (Atrocity), City Session Court, Ahmedabad.

The fact of the case was that the complainant had a fight with the appellant and during the fight, the appellant assaulted the complainant who suffered some injuries. Thereafter, the complainant lodged an FIR against the appellant under the provisions of the Indian Penal Code and Atrocity Act.  

The learned Counsel for the Appellant, Mahesh Bariya and Pooja Baswal, prayed for the grant of an anticipatory bail which was vehemently opposed by the respondent’s counsel, Monali Bhatt on the ground that the offence was made out under Atrocity Act and thus was a grave offence. 

The court placed reliance on the law laid down by the apex court in Gorige Pentaiah v. State of A.P., (2008) 12 SCC 531 which laid down that the preliminary inquiry shall be conducted by Deputy Superintendent of Police to find out whether allegation made out under the said act before registering an FIR relating to the commission of an offence and approval of appropriate authority shall be obtained before arrest of any person in connection with such offence.

The Court thus held that in the present case, it is doubtful as to commission of offence under Atrocity Act. Further, it appears from the affidavit of the complainant that the matter has been amicably settled between the parties and complainant has also tendered the affidavit for quashing the same FIR.  Considering the facts and circumstances of the case, without discussing the evidence in details, prima facie, this court is of the considered opinion that the discretion under Section 438 of the Code of Criminal Procedure is required to be exercised. 

The anticipatory bail was thus granted with the condition that appellant shall remain present before the Magistrate on the first day of hearing of the application and after all the subsequent occasions as may be directed by the Magistrate. It was also clarified that the appellant, even if, remanded to police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of the anticipatory bail order.[Vipul Maganbhai Patel v. State of Gujarat, 2019 SCC OnLine Guj 832, decided on 10-05-2019]

Case BriefsHigh Courts

Karnataka High Court: A Bench of B.A. Patil, J., allowed an application for the anticipatory bail filed by an accused, an engineering student to appear for the examination.

The petition was filed by the accused-petitioner under Section 438 of Code of Criminal Procedure to release him on anticipatory bail for the offences punishable under Sections 323, 324, 504, 506, 354-B read 34 of the Penal Code and Sections 8 and 12 of POCSO Act.

The fact of the case are that the complainant was in her house with her husband and daughter, the accused-petitioner due to some old rivalry went near the house, took a stone and started quarrelling. The accused-petitioner also caused grievous injury by biting middle finger of the complainant’s daughter.

The learned counsel for the petitioner, Paksha Keerthana K., submitted that there was a delay in the filing of the complaint. It was further submitted that the petitioner-accused was not present at the time of the alleged incident and the injuries suffered by the complainant are simple in nature, thus prayed for the bail under the statutory provision.

The learned counsel for the respondent, Namitha Mahesh, vehemently argued and submitted that petitioner-accused tried to molest the daughter of the complainant and caused grievous injuries and is not available for the investigation or interrogation, thus prayed for the dismissal of the petition.

High Court on noting the submissions of the parties held that the offences under POCSO were not made on the accused-petitioner and thus in the interest of justice the anticipatory bail application was granted.[Pramod D.M. v. State of Karnataka, Criminal Petition No. 2616 of 2019, decided on 16-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. dismissed a bail application filed by an individual under Section 438 CrPC, for being involved in acts of vandalism during hartal called by a political party.

Facts of the case were that a political party had declared a hartal in Kerala. The uncle of de facto complainant opened his shop despite the call for hartal. Defacto complainant went to the shop in the morning. Petitioner along with other persons abused him and caused damage to the movables in the shop. When the defacto complainant intervened, petitioner hit him on the head injuring his right eye. A case was registered against petitioner for offences punishable under Sections 143, 147, 294(b), 308, 323, 324 and 427 read with Section 149 of the Penal Code, 1860. Apprehending arrest, petitioner approached this court seeking anticipatory bail.

The Court noted that the aforesaid criminal acts were done by the petitioner under the cover of hartal called by a political party. Petitioner and his group’s act was nothing but sheer vandalism, under the guise of hartal. Call for hartal by any political party only gives the right to the members of that political party to withdraw themselves from their work as a protest. They may also persuade their fellow workers to withdraw from their work. But that does not empower them to commit criminal acts, much less, any act intended to interfere in the exercise of the fundamental right of any person to move freely anywhere in India and to carry on his trade or business anywhere in India. Reliance was placed on Full Bench decision of this Court in George Kurian v. State of Kerala, 2004 SCC OnLine Ker 42 where it was held that nobody can be compelled to participate in hartal and general strike.

Further, the Court also relied on the decision of the Supreme Court in Kodungallur Film Society v. Union of India, (2018) 10 SCC 713 where it was held that any mob violence and crime by self-appointed keepers of public morality, terrorizing common man without legal sanction and causing loss of life and destruction of property, should be dealt with seriously. It was opined that bail applications filed by persons charged with such offence should be dealt with circumspection.

In view of the above, anticipatory bail was rejected.[Vinod. P v. State of Kerala, 2019 SCC OnLine Ker 1012, Order dated 20-02-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. allowed the bail application filed by a member of a political party involved in protests against the entry of women in Sabarimala, on the ground that his custodial interrogation did not seem necessary for the investigation.

Petitioner herein was accused of offences punishable under Sections 143, 147, 148, 294(b), 506(ii), 324, 427, 332 and 307 read with Section 149 of Penal Code, 1860 and Section 3(2)(e) of Prevention of Damage to Public Property Act, 1984. Allegation of the prosecution was that on 02-01-2019, petitioner along with 350 people conducted a procession protesting against the entry of women in Sabarimala. They pelted stones at the office of a political party, on police officers, and also attacked the defacto complainant.

The Court noted that the earlier bail application filed by petitioner – leader of the political party – was dismissed by this Court considering that he had committed the main overt acts. He seems to be the. However, even though his earlier bail application was dismissed, the investigating agency had not arrested him till the date of this hearing. It seemed that the investigation had progressed considerably.

Considering the change of circumstances, it was opined that custodial interrogation of the petitioner may not be absolutely essential at that point of time. Hence, he was granted the benefit of pre-arrest bail.[Sivan v. State of Kerala, 2019 SCC OnLine Ker 1006, Order dated 26-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Vinod Kumar Sinha, J. allowed a criminal appeal granting anticipatory bail to persons who were apprehending their arrest under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Appellants herein were apprehending their arrest in connection with a police case registered for offences punishable under Sections 147, 341, 323, 354, 504, 506 of the Penal Code, 1860 and Sections 3(1)(s) of the SC/ST (Prevention of Atrocities) Act. Allegation against them was that they arrived, heavily armed, at informant’s house, thrashed his wife, assaulted her and made her semi-naked.

Submission of the learned counsel for the appellants, Mr Ashok Kumar Jha, was that Appellant 1 had filed a title suit pertaining to a land which the defendant (in title suit) tried to sell to the informant. However, the Court granted an injunction in favour of the appellants. Holding the same grudge against appellants, a fabricated police case had been lodged against appellants.

In view of facts and circumstances, the Court allowed the appellants to be released on bail in the event of their arrest, on furnishing a bail bond of Rs 25,000 each with two sureties of the like amount to the satisfaction of the learned Special Judge, SC/ST Act, Sitamarhi. [Bhikhari SK v. State of Bihar, 2019 SCC OnLine Pat 257, Order dated 27-02-2019]