anticipatory bail

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In an appeal relating to the grant of anticipatory bail for the commission of offences under Sections 452, 506(ii) and 195-A of the Penal Code, 1860 as well as under Section 3(2)(va) of the Scheduled Tribes (Prevention of Atrocities) Act, (SC/ST Act) 1989, A. Badharudeen, J. has observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered and when considering the question of prima facie case for considering bail application, the knowledge shall be understood and inferred from the prosecution records.

The Court noted that the prosecution allegation is that the accused persons/appellants who are not members of Scheduled Caste or Scheduled Tribe community, criminally trespassed upon the house of the complainant, who belonged to the said community on 08.07.2022. and threatened her with dire consequences, if she would not be abstaining from proceeding with the Sessions trial pertaining to the death of her son. Further, apprehending arrest in the above case, one of the appellants filed bail application seeking pre-arrest bail before the Special Court, and the Court dismissed the said bail application referring to Section 18 and 18-A of the SC/ST Act.

The Court dealt with the following questions in the present appeal:

(i) Whether grant of anticipatory bail is specifically barred in cases involving commission of offences under the SC/ST Act, 1989 and to what extent relaxation to Section 18 and 18-A of the SC/ST Act is permissible?

The Court took note of the ruling in Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 , wherein the Court held that “the scope of Section 18 of the SC/ST Act read with Section 438 of the Code of Criminal Procedure is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out” and observed that Section 18 of the SC/ST Act provides that nothing in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving the arrest of any person or accusation of an offence committed under this Act.

It further took note of the ruling in Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521, wherein the Court held that “the High Court has not given any finding in the impugned order that an offence under the aforesaid Act is not made out against the respondent and has granted anticipatory bail, which is contrary to the provisions of Section 18 of the aforesaid Act as well as the aforesaid decision of this Court in Vilas Pandurang Pawar case. Hence, without going into the merits of the allegations made against the Respondent, we set aside the impugned order of the High Court granting bail to the respondent”.

The Court also observed that after the ruling in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 , SC/ST Act was amended, and Section 18-A got incorporated in the Act which provides that a preliminary enquiry shall not be required for registration of a first information report against any person; or the Investigating Officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation has been made and no procedure other than that provided under this Act shall apply. Further, Section 18(2) provides that the provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any court.

The Court further took note of the decision in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 and observed that the law is well settled that even after incorporation of Section 18-A there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, the Court has the power to grant anticipatory bail if the prosecution allegations do not make a prima facie case.

Thus, there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, provided there is no prima facie case.

(ii) How the word `knowing’ in Section 3(2)(va) of the SC/ST Act to be understood?

The Court observed that, by reading Section 3(2)(va), it is emphatically clear that commission of offences specified in the schedule would attract an offence under Section 3(2)(va) of the SC/ST Act, and to attract the said offence, commission of the offences punishable under the IPC, shown in the schedule, should be committed by the accused against a member of the SC/ST knowing that such person is a member of a SC/ST.

The Court further viewed that, now the question is, how the word “knowing”, in Section 3(2)(va) of the SC/ST Act to be understood, and referred to Section 8(c) of the SC/ST Act, which provides that “if the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved”. Thus, it was observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered. When considering the question of prima facie case for the purpose of considering plea of bail during investigation and the period before trial, the knowledge shall be understood and inferred from the prosecution records.

The Court also viewed that on examination of the schedule in the SC/ST Act, Section 506 of IPC is an offence in the schedule and therefore commission of offence under it would attract an offence under Section 3(2)(va) of the SC/ST Act. Further, it was observed that the knowledge of the accused as to the status of the complainant as a member of the SC/ST community could be inferred prima facie from the prosecution materials. Therefore, prima facie commission of offence under Section 3(2)(va) of the SC/ST Act is made out. Thus, in this case Section 18 and 18-A of the SC/ST Act would apply and therefore, anticipatory bail cannot be granted.

[Abbas R.V v. State of Kerala, 2022 SCC OnLine Ker 4713, decided on 23.09.2022]

Advocates who appeared in this case :

Balamurali K.P., Advocate, Counsel for the Appellant;

P.V.Jeevesh, Advocate, Counsel for the Respondent;

Senior Public Prosecutor T.R.Renjith.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by Aakash Choudhary (‘petitioner’) seeking anticipatory bail, as FIR was registered against him and Gaurav Singh /co-accused under Sections 308, 323, 341 read with 34 Penal Code, 1860 (‘IPC’), Justice Talwant Singh granted bail on the ground that the CCTV footage, prima facie does not support the allegations mentioned in the FIR, as far as the present applicants are concerned keeping in view that the applicants are ready to join the investigation.

The applicant claimed that the present FIR is a counter blast to the applicant’s FIR registered at PS Sarita Vihar, Delhi, registered under the influence of one Mr. Brahm Singh, who is the aggressor and husband of a local municipal councilor.

The Court opined that that the only reliable piece of evidence, which gives a clear picture of the incident is the CCTV footage of the entire incident, which was captured in a CCTV installed near the ground.

The Court noted that the altercation started on a very minor issue when the complainant stopped a tractor trolly for ferrying certain material to the park where they were going to host a Kabaddi tournament. On this minor issue, the incident escalated to a free for all fight, which resulted in injuries on both sides and rival groups have lodged the FIRs against other groups, alleging the facts, which best suited to them, without realizing that the entire incident was captured in a CCTV camera.

The Court further noted that the investigating agency is required to investigate the entire incident on the basis of scientific evidence, without relying upon exaggerated allegations made in both the FIRs and to conclude the investigation and take further action.

The Court directed the area DCP to ensure that an independent investigation is conducted into the incident and take steps as per law, without getting influenced by the stature or political background of any of the parties and to supervise the progress of the investigation at regular intervals and review the progress made so far.

But the Court made a very interesting observation while dealing with this matter. The Court remarked

“It has been noticed that in the bail applications, apart from stating the facts, elaborate extracts from judgements have been made part of the pleadings. The learned drafting counsel is requested to adhere to the basic principles of pleading and state only facts and the legal provisions applicable along with the grounds on which the bail has been sought. As far as the citations are concerned, the counsels are at liberty to cite all relevant judgements at the time of the arguments. There is no need to attach copies of the judgements with the pleadings, which results in making the pleadings too bulky.”

The Court granted anticipatory bail, subject to the following conditions:

(i) They shall join the investigation as and when called by the IO and fully cooperate in the same.

(ii) They shall not contact, coerce or threaten the complainant and the witnesses in the present case;

(iii) They shall share their Mobile Numbers with the IO within one week of the date of this order and keep the mobile location on at all times;

(iv) They shall not leave the country without permission from the learned Trial Court.

[Aakash Choudhary v. The State of NCT of Delhi, 2022 SCC OnLine Del 2979, decided on 15-09-2022]

Advocates who appeared in this case :

For petitioner- Mr. Ramesh Gupta, Sr. Advocate with Mr. Ravi Kumar, Mr. Rohit Pratap Singh, Mr. Gagandeep and Mr. Shailender Singh, Advocates

For State- Mr. N.S. Bajwa, APP. Mr. Kirti Uppal, Sr. Adv. with Mr. Himanshu Bidhuri, Ms. Riya Gulati and Mr. Chandan Sinha, Advocates for R-2.

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

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: While deciding the instant application for anticipatory bail wherein the Court deliberated on what constitutes ‘Ganja' as per the provisions of Narcotics and Psychotropic Substances Act, 1985; the Bench of Bharati Dangre, J., observed that upon reading of Section 2(iii)(b) of NDPS Act, Ganja is the flowering or fruiting tops of a cannabis plant; however, when there are no accompanying flowering or fruiting tops, then the seeds and leaves of a cannabis plant are to be excluded from the definition of Ganja.

Facts of the case: On 17-04-2021, the Narcotics Control Bureau (NCB) received intel regarding a possible availability of huge quantity of Ganja at the house premises of the applicant in the morning of 18-04-2021. It was alleged that the applicant was involved in selling Ganja from the said house in small packets to the customers, with the help of his two associates.

A team was formed, and a search was carried out into the suspected house premises. The search led to green leafy substances being found in 3 kattas. The leafy substance was purported to be ganja and was sent for testing in order to ascertain its identity. The analysis of the substance reported it to be “in the form of soft greenish heterogeneous mixture flowering and fruiting tops, bits of leaves, steam and stalk along with seeds of plant (…) the sample under reference answer positive test for Ganja (Marijuana)”.

Contentions: The counsel for the applicant submitted that the seized substance does not match the definition of Ganja as provided in the NDPS Act. It was argued that mere leaves and seeds, in absence of fruiting and flowering tops, would not bring the substance within the purview of the term Ganja.

Per contra, the respondents submitted that even though the Panchnama did not mention the details of the recovered substance, the tests conducted on the substance revealed it to be a contraband i.e., Ganja.

Observations and Decision: Perusing the facts of the case, contentions and the analysis report of the seized substance, the Bench observed that-

  • Whether a substance is ‘Ganja' or not, the same will have to be determined on the facts of each case. Perusing Section, the Court further observed that it is implied that if seeds and leaves of cannabis plant are accompanied by flowering tops or fruiting tops, then it would amount to Ganja. However, when the seeds and leaves are not accompanied by the tops, then it will not be considered as Ganja. It would have to be ascertained that whether the flowering or fruiting tops of the cannabis plant are accompanied by the seeds and leaves.

  • The Court also noted that the report of analysis of the substance refers to the sample which is a heterogeneous mixture of flowering and fruiting tops, bits of leaves, steam and stalk along with seeds of plant and that this entire mixture weighed 43 kgs. It was observed that there was a discrepancy between what was seized and what was analyzed, thus prima-facie satisfying the Court that there are reasonable grounds for believing that the applicant is not guilty of offence of dealing in commercial quantity of contraband.

  • The Court also observed that it is the duty of the NCB to be assured of what substance is seized and what is forwarded for analysis, as it cannot be left for the Trial Courts to do guess work on the nature of the substance. Furthermore, relying on the proposition laid down in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, regarding consideration of bail application with reference to Section 37 of the NDPS Act, the Court stated that it is necessary to look into the nature of accusations and evidence collected by the prosecution during the course of investigation; and circumstances peculiar to particular cases shall be determined in the backdrop of the fact whether suspicion of the prosecution about indictment of applicant is prima-facie correct.

  • With the above-mentioned observations, the Court allowed the application and bail was granted to the applicant with conditions attached.

[Kunal Dattu Kadu v. Union of India, 2022 SCC OnLine Bom 1770, decided on 29-08-2022]

Advocates who appeared in this case :

Mithilesh Mishra i/b Sadiya Khan, Advocate, for the Applicant;

Shreeram Shirsat a/w Amandeep Singh, Advocate, Sra for Respondent No.1;

S.V. Gavand, APP, Advocate, for the State.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Case BriefsSupreme Court

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

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

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

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

The comprehensive analysis of the judgment can be read here.

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

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

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

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

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

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

Delhi High Court
Case BriefsHigh Courts

   

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

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

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

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

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

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

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

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

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

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

Advocates who appeared in this case :

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

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

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

Andhra Pradesh High Court
Case BriefsHigh Courts

   

Andhra Pradesh High Court: Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC') unless such actions compelled the victim to commit suicide.

The wife of the deceased employee lodged a complaint alleging that her husband worked as Clerk for nine years in Primary Agriculture Cooperative Society (‘Society') and presently was working as Secretary. It was alleged that due to the pressure made by the accused, the deceased committed suicide. Based on the said complaint, the present crime was registered. Thus, instant petition was filed under Section 438 Criminal Procedure Code (‘CrPC') seeking pre-arrest bail to the petitioner/A3 in the event of her arrest in connection with the said registered offence punishable under Section 306 Penal Code, 1860 .

The Court noted that the averments of the complaint with regard to the pressure made by the petitioner who is CEO may not arise for the reason that in case of any defaults, the President and Secretary will follow the procedure contemplated under the Co-operative Societies Act and not the accused who happens to be the Chief Executing Officer ‘CEO'.

Placing reliance on Geo Varghese v. State of Rajasthan, 2021 SCC Online SC 873, wherein it was held mere allegation of harassment will not attract offence under Sections 306 IPC unless such actions compelled the victim to commit suicide.

Further placing reliance on M. Mohan v. State of Tamil Nadu, (2011) 3 SCC 626, the Court noted that mere allegations of pressure or harassment made by wife, in the instant case, will not suffice to attract ingredients of Section 306 IPC and to attract the offence under Section 306 IPC, there should be instigation or abetment on the part of the accused.

Thus, the Court held as there is no instigation or abetment made by the accused which led the deceased to commit suicide as indicated by the complaint and hence, ingredients of Section 306 IPC are prima facie not made out and the accused be granted bail.

[B Sridevi v. State of Andhra Pradesh, Criminal Petition No. 4976 of 2022, decided on 14-07-2022]

Advocates who appeared in this case :

O Kailashnath Reddy, Advocate, for the Petitioner.

*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has held that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, do not impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act.

The Twin Conditions under Section 45 for release on bail

  • that there are reasonable grounds for believing that the accused is not guilty of such offence; and
  • that he/she is not likely to commit any offence while on bail.

The Court has held that the provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act to combat the menace of money-laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the countries.

It is also important to note that similar twin conditions have been provided in several other special legislations validity whereof has been upheld by the Supreme Court being reasonable and having nexus with the purposes and objects sought to be achieved by the concerned special legislations. Besides the special legislation, even the provisions in the general law, such as 1973 Code stipulate compliance of preconditions before releasing the accused on bail. The grant of bail, even though regarded as an important right of the accused, is not a mechanical order to be passed by the Courts. The prayer for grant of bail even in respect of general offences, have to be considered on the basis of objective discernible judicial parameters as delineated by this Court from time to time, on case-to-case basis.

Non-cognizable offence

The Court has rejected the argument that the scheduled offence in a given case may be a non-cognizable offence and yet rigors of Section 45 of the 2002 Act would result in denial of bail even to such accused.

Stating that such an argument was founded on clear misunderstanding of the scheme of the 2002 Act, the Court observed that the offence of money-laundering is one wherein a person, directly or indirectly, attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime. The fact that the proceeds of crime have been generated as a result of criminal activity relating to a scheduled offence, which incidentally happens to be a non-cognizable offence, would make no difference.

“The person is not prosecuted for the scheduled offence by invoking provisions of the 2002 Act, but only when he has derived or obtained property as a result of criminal activity relating to or in relation to a scheduled offence and then indulges in process or activity connected with such proceeds of crime. Suffice it to observe that the argument under consideration is completely misplaced and needs to be rejected.”

Anticipatory Bail

Holding that Section 45 applies to anticipatory bail as well, the Court explained that anticipatory bail is nothing but a bail granted in anticipation of arrest, hence, the principles governing the grant of bail in both cases are more or less on the same footing, except that in case of anticipatory bail the investigation is still underway requiring the presence of the accused before investigation authority. Thus, ordinarily, anticipatory bail is granted in exceptional cases where the accused has been falsely implicated in an offence with a view to harass and humiliate him. Therefore, it would not be logical to disregard the limitations imposed on granting bail under Section 45 of the 2002 Act, in the case of anticipatory bail as well.

“Investigation in an economic offence, more so in case of money-laundering, requires a systematic approach. Further, it can never be the intention of the Parliament to exclude the operation of Section 45 of 2002 Act in the case of anticipatory bail, otherwise, it will create an unnecessary dichotomy between bail and anticipatory bail which not only will be irrational but also discriminatory and arbitrary. Thus, it is totally misconceived that the rigors of Section 45 of the 2002 Act will not apply in the case of anticipatory bail.”

The Court went on to state that it would be preposterous and illogical to hold that if a person applies for bail after arrest, he/she can be granted that relief only if the twin conditions are fulfilled in addition to other stipulations predicated in the 1973 Code; but another person, who is yet to be arrested in connection with the same offence of money-laundering, will not be required to fulfil such twin conditions whilst considering application for grant of bail under Section 438 of the 1973 Code.

It was observed that any other view would be counterproductive and defeat the purposes and objects behind the stringent provision enacted by the Parliament for prevention of money-laundering and to combat the menace on account of such activity which directly impacts the financial systems, including the sovereignty and integrity of the country.

Hence, in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the Criminal Procedure Code, 1973 or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of moneylaundering.

Exception to strict compliance of the twin conditions

The Court held that Section 436A CrPC, which has come into being on 23.6.2006 vide Act 25 of 2005, is an exception to the strict compliance of the twin conditions under Section 45 of the 2002 Act, which was inserted recognizing the deteriorating state of undertrial prisoners so as to provide them with a remedy in case of unjustified detention.

As the Section 436A of the 1973 Code was inserted after the enactment of the 2002 Act, it would not be appropriate to deny the relief of Section 436A of the 1973 Code which is a wholesome provision beneficial to a person accused under the 2002 Act. However, Section 436A CrPC, does not provide for an absolute right of bail as in the case of default bail under Section 167 CrPC. For, in the fact situation of a case, the Court may still deny the relief owing to ground, such as where the trial was delayed at the instance of accused himself.

The Court explained that this provision is comparable with the statutory bail provision or, so to say, the default bail, to be granted in terms of Section 167 CrPC consequent to failure of the investigating agency to file the chargesheet within the statutory period and, in the context of the 2002 Act, complaint within the specified period after arrest of the person concerned. In the case of Section 167 of the 1973 Code, an indefeasible right is triggered in favour of the accused the moment the investigating agency commits default in filing the chargesheet/complaint within the statutory period. The provision in the form of Section 436A CrPC, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution.

While this was argued before the Court that this view would impact the objectives of the 2002 Act and is in the nature of super imposition of Section 436A CrPC over Section 45 of the 2002 Act and that the same logic may be invoked in respect of other serious offences, including terrorist offences which would be counterproductive, the Court was unimpressed.

It observed,

“For, it is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending up to one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence.”

It was hence, held that Section 436A CrPC needs to be construed as a statutory bail provision and akin to Section 167 of the 1973 Code.

[Vijay Madanlal Choudhary v. Union of India, SPECIAL LEAVE PETITION (CRIMINAL) NO. 4634 OF 2014, decided on 27.07.2022]

*Judgment by: Justice AM Khanwilkar

For private parties:  Senior Advocates Kapil Sibal, Sidharth Luthra, Dr. Abhishek Manu Singhvi, Mukul Rohatgi, Amit Desai, S. Niranjan Reddy, Dr. Menaka Guruswamy, Aabad Ponda, Senior Counsel 9Siddharth Aggarwal, Mahesh Jethmalani, N. Hariharan, Vikram Chaudhari, and Advocates Abhimanyu Bhandari and Akshay Nagarajan,

For Union of India:  Tushar Mehta, Solicitor General of India and S.V. Raju, Additional Solicitor General of India

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi: While deciding a bail application, Kamini Lau, J. granted anticipatory in a case where the complainant-girl was a major and was held to be in a consensual relationship and thus, consent forms part of the subject matter in the said case. The Court granted bail since the accused joined the investigations and therefore, his custodial interrogation was not warranted.The applicant/accused got into a relationship with the prosecutrix/complainant after getting acquainted at work. The applicant had also introduced the complainant to his parents, and they approved of her. Subsequently, since March 2021, they started developing sexual relations on various occasions at different places like his residence, office and different hotels. The complainant alleged that these relations were non-consensual, and she was coerced based on the false promise of marriageby the applicant. The applicant contended that due to professional and personal issues he had been unable to marry the complainant, but she was pressurizing him to marry her. However, the complainant contended that after their last encounter on 11-06-2022, the applicant started ignoring her and avoided all communication with her. Pursuant to this,, the complainant filed a case against the applicant under Sections 354-D and 376 Penal Code, 1860 (‘IPC’). The applicant filed the instant anticipatory bail application under Section 438 Criminal Procedure Code (‘CrPC’)

The Court vide order dated 12-07-2022 granted interim protection to the applicant/accused and directed them to file a detailed report at the next hearing. Thus, a detailed report was filed by the Investigating officer who admitted that the applicant/accused Rahul Sharma joined investigations on 13-07-2022.

The Court observed that there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances.

Placing reliance on Uday v. State of Karnataka (2003) 4 SCC 46, and Jayanti Rani Panda v. State 1983 SCC OnLine Cal 98, the Courtobserved that “it is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the facts and circumstances of each case.”

The court concluded to note that, according to the applicant, he was ready and willing to marry the complainant, but it was the family of the complainant who had an issue with an inter-caste marriage. Additionally, the applicant joined the investigation and therefore, his custodial interrogation is not required , thus, the court granted anticipatory bail to the applicant on a bail bond of Rs. 1 lakh subject to the conditions as mentioned in the order.

[Rahul Sharma v. State, 2022 SCC OnLine Dis Crt (Del) 27, decided on 19-07-2022]

Advocates who appeared in this case :

Mr Pankaj Bhatia, Advocate, for the State;

Mr Kapil Madan, Mr Gurmukh Singh Arora and Mr Saurabh Gauba, Advocates, for the Applicant/Accused;

Complainant in person with Ms Sudershna Chakraborty Advocate from Delhi Commission, for the Women.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Siddharth, J. allowed an application for anticipatory bail filed on behalf of applicants in relation to an FIR registered under Sections- 504, 506, 384, 467, 468, 120-B Penal Code, 1860.

Applicant 1 (58 years), the applicants 2 and 3 are the sons and the applicant 4 is the daughter of applicant 1 and the applicant no 2 and 4 are the directors of several companies situated at Agra. The applicants 5 and 7 are the employees of said company and applicant 6 was earlier director of complainant’s company. Huge amount has been paid to the opposite party 3, who is director of Vastu Colonisers (P) Ltd., having its office at Jaipur through the Pink City Infrastructure (P) Ltd., for providing the land of 380 bighas at Jaipur for the development of Township and the colonies. However, till date only 80 bighas of land has been provided and the money has not been returned to the applicant’s company through the Pink City Infrastructure (P) Ltd.

Pink City Infrastructure (P) Ltd., thus lodged an FIR against the opposite party 4 and other persons at Agra which had been registered as FIR 0508 of 2021 on 11-12-2021 at Police Station in Agra, under Sections- 120-B, 406, 420, 467, 468, 471 IPC as they had cheated the applicant’s company and not provided the land as agreed therefore, as a counter blast FIR 444 of 2022 has been lodged by the opposite party 3 against the applicants and several other persons only to create pressure upon them to appear the court at Jaipur.

Counsel for the applicants has submitted that the FIR has been lodged at the Police Station- Mansarovar, Jaipur City (South), Rajasthan and the applicants are the residents of District — Agra in the State of U.P. They are willing to appear before the court concerned at Jaipur, Rajasthan for the purpose of getting bail. However, they may be granted transit anticipatory bail for short time so that they may appear before the competent court at Jaipur under limited protection granted by this court by way of time bound transit anticipatory bail.

Additional Government Advocate has opposed the prayer made on behalf of the counsels for the applicants and has submitted that this Court has no jurisdiction to grant any protection to the applicants. The offence has taken place outside the state.

The Court after listening to the parties found that there is no legislation or law which defines ‘transit or anticipatory bail’ in definitive or specific terms. The term ‘transit’ means the act of being moved from one place to another while the word ‘anticipatory bail’ means a temporary release of any accused person who is anticipating arrest, therefore, transit anticipatory bail refers to bail granted to any person who is apprehending arrest by police of a State other than the State he is presently located in.

The Court further explained that transit anticipatory bail is different from ordinary bail. Ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e., it precedes detention of the accused and is effective immediately at the time of the arrest. The Court further emphasized on the fact that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail. The mere fact that an accused has been granted transit bail, does not means that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail. Upon the grant of transit bail, the accused person, who has been granted such transit bail, has to apply for anticipatory bail before the regular court.

The Court further relied on the decision of the Bombay High Court in Teesta Atul Setalvad v. State of Maharashtra, 2014 SCC OnLine Bom 4819 where it was held that the High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 of the Criminal Procedure Code. In appeal the Supreme Court had declined to interfere with the said order (Teesta Atul Setalvad v. State of Maharashtra, 2014 SCC OnLine Bom 4819).

The Court consequently held that there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered. The Court allowed the application finding that there are commercial transaction ensued between the applicants and the complainant and there are criminal cases lodged by the parties against each other and that it is a fit case where the applicants should get the privilege of transit pre-arrest bail.

[Amita Garg v. State of U.P., 2022 SCC OnLine All 463, decided on 06-07-2022]

Advocates who appeared in this case :

Ram Kishore Pandey, Ajay Kumar Bashist Singh, Advocates, Counsel for the Applicant;

G.A., Advocate, Counsel for the Opposite Party.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In an interesting case the Vacation Bench comprising Dinesh Maheshwari and Krishna Murari, JJ., disapproved a strange bail condition imposed by the M.P. High Court. The High Court had directed the husband to surrender as a condition for pre-arrest bail of his wife.

The petitioner’s wife (applicant herein after) had approached the M.P. High Court with an application for pre-arrest bail apprehending her arrest in connection with a case registered against her husband’s family for offences punishable under Sections 304-B, 498-A, 34 of the Penal Code, 1860.

Considering that the applicant’s husband is posted at Mohana, District Gwalior which is a distant place from where the deceased resided last and the applicant has to take care of her children (two children aged 6 years and 3 years respectively), the High Court granted her pre-arrest bail with a direction to her husband to immediately surrender.

Aggrieved thereby, the petitioner, elder brother of the husband of the deceased, assailed the impugned order in the instant petition. The petitioner contended that the High Court had—while granting the prayer for pre-arrest bail to his wife— apart from the requirements of furnishing the bail bonds and surety, imposed further several conditions and then, before concluding the matter, observed as under:

“It is expected that husband of the applicant shall immediately surrender to the course of justice.”

The petitioner contended that such an observation of the High Court, practically forming a condition for grant of bail to his wife, has put all his rights in jeopardy and his plea for grant of pre-arrest bail is not being considered by the Sessions Judge because of such an observation.

Opining that the petitioner’s grievances were justified, the Court stated that it is inexplicable how the High Court can, while granting pre-arrest bail to the petitioner’s wife make such an observation that may operate against the interests of the petitioner; that too without extending him an opportunity to be heard. Considering the facts and circumstances of the case and the nature of accusations, the Court remarked,

“We are unable to find any logic in such a condition.”  

Hence, the Court disapproved of the condition imposed on the petitioner by the High Court.

Though the Court refrained to comment on the merits of the petitioner’s case for grant of pre-arrest bail, it held that the observations occurring in the impugned order cannot and shall not operate for being prejudicial to the interests of the petitioner.

Consequently, the Court directed that the petitioner’s bail plea shall be examined by the Court concerned on its own merits. Additionally, the Court added that since the instant order was passed without notice to the other side, the respondent-State will have the liberty to apply for a modification or for any other order, if necessary.

[Ajay Singh Rajpoot v. State of M.P., 2022 SCC OnLine SC 875, decided on 07-07-2022]

Appearance by:

For the Petitioner: Mr. Shishir Kumar Saxena, Adv., Mr. R.N. Pareek, Adv., Ms. Payal Swarup, Adv. and Mr. Praveen Swarup, AOR

*Kamini Sharma, Editorial Assistant has put this report together 

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a significant case, the Division Bench of Indira Banerjee and J.K. Maheshwari, JJ., upheld pre-arrest bail of actor-producer Vijay Babu who was alleged to have committed rape of an actress.

The Court, however, modified the bail condition that the accused can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022, and directed that the accused may be interrogated as and when necessary, even after 03-07-2022.

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Pertinently, by the impugned order, Single Judge of the Kerala High Court had granted pre-arrest bail to the accused by holding that there is no restriction in law that pre-arrest bail cannot be granted to a person sitting abroad; which was doubted by a co-equal Bench of the High Court. Consequently, the question as to whether pre-arrest bail can be granted to a person sitting abroad was referred to a larger Bench. Though the Supreme Court did not refer to the aforementioned question, it has upheld the grant of pre-arrest bail to the accused.

After considering the pleadings and other materials on record, the Court declined to interfere with the impugned order. The Court stated,

“We are also not inclined to interfere with the conditions imposed in the impugned order for grant of pre-arrest bail, except sub-paragraph (2) of paragraph 27 of the impugned order which reads as under:

(2) The petitioner can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation.”

Hence, the Court modified the bail condition by deleting the words “for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive)” and held that the accused may be interrogated as and when necessary, even after 03-07-2022.

The accused was directed to comply with all other conditions imposed by the High Court as also the conditions for grant of pre-arrest bail enumerated in Section 438(2) of the CrPC. Bail conditions affirmed by the Court are as follows:

  1. The accused shall not leave the State of Kerala without prior permission of the jurisdictional Court;
  2. shall appear before the Investigating Officer as and when called;
  3. shall not contact or interact with the victim or any of the witnesses;
  4. shall not indulge in any form of attack on the victim or her family through social media or any other mode;
  5. shall not harass, defame, denigrate or ridicule the petitioner or members of her family in any manner whatsoever or publish or post any comments, writing, picture, etc. in relation to the incident on social media or otherwise;
  6. shall not commit any other offence while on bail
  7. 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 him from disclosing such facts to the Court or to any Police officer;

  8. if the impounded passport of the accused is returned or if he is issued with a fresh passport, he shall immediately surrender the same to the Investigating Officer.

[x v. Vijay Babu, 2022 SCC OnLine SC 805, decided on 06-07-2022]

Advocates who appeared in this case :

Mr. Arjun Singh Bhati, AOR, Mr. C. K. Sasi, AOR, Advocate, for the Petitioner;

Mr. Siddharth Luthra, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Sweena Nair, Adv., Mr. Lakshay Saini, Adv., Ms. Anasuya Choudhury, Adv. and Mr. Angaj Gautam, Advocates, for the Respondent(s).

Also Read

Kerala High Court grants anticipatory bail to cine artist & producer Vijay Babu in a rape case

Kerala High Court| Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide

*Kamini Sharma, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

  Kerala High Court: While adjudicating a question of law as to whether pre-arrest bail can be granted to an accused while he is sitting abroad, P.V. Kunhikrishnan, J., doubted the findings of Single Judge in Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158. Answering the question of law in negative the Court stated, 

“If an accused in a case leaves India after knowing that a case with grievous offences is registered against him and files a bail application before the High Court while sitting abroad, he is not entitled to an order not to arrest especially when there is no such power under Section 438 CrPC.”  

Factual Backdrop 

The petitioner was alleged to have committed offences punishable under Sections 11 and 12 of the Protection of Children from Sexual Offence Act, 2012 (POCSO), Section 3 of the Indecent Representation of Women (Prohibition) Act, 1986, Sections 354A, 354D, 292A, 290, 507, 503, 465, 466, 500, 509 Penal Code, 1860 and Sections 67, 66(A) and 66(E) of the Information Technology Act, 2000. Fearing her arrest, the petitioner had approached the Court with an application for pre-arrest bail.  

When the bail application came up for consideration before the Court, the Court noted that the petitioner was in Kuwait when the bail application was filed. Therefore, the Court held that the pre-arrest bail application was not maintainable in the light of the judgment of Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928.  

However, before the order rejecting bail application could be delivered, the Single Judge of the Kerala High Court granted pre-arrest bail to a similarly placed accused in Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158.  

Noticeably, in Shafi S.M.’s case (supra), it had been held that a person sitting in another country cannot file an application under Section 438 of the CrPC apprehending his/her arrest.  

The Contrary Decision of Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158  

But in Vijay Babu’s case (supra) the Single Judge distinguished the Shafi’s case (supra) by holding the following:   

“…merely because the petitioner is outside the country, the same by itself cannot deprive him of his right to have his application for anticipatory bail considered by this Court. The decision referred to in Souda Beevi v. S.I., 2011 SCC OnLine Ker 4242, can be said to be impliedly overruled and decision in S.M.Shaffi’s case (supra) did not take notice of the judgment in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and therefore, could be regarded as judgment sub silentio.” 

On the other hand, all that those two decisions say is that, at least before the final hearing, the Court must be convinced that the applicant is within the jurisdiction of the Court so that the conditions if any imposed, could be effectively enforced.  

Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.” 

Observations & Opinion of the Court 

Doubting the aforementioned interpretation, the Court stated, 

“I am in respectful disagreement with the above observation of the learned Judge. When in Shafi’s case (supra) this Court clearly stated that an application under Section 438 CrPC cannot be filed before this Court by an accused sitting in a foreign country, the learned Single Judge ought not have decided the matter without referring the same to the Division Bench.” 

The Court opined that the direction not to entertain a bail application in a situation where the accused filed a bail application sitting in a foreign country and that also absconding after the registration of the case against him and further openly challenging the law of the land, with the knowledge of the registration of the case against him is not against the dictum laid down in Sushla Aggarwal’s case (Supra).  

Further, the Court expressed that a person sitting abroad need not be invited to the country by a court of law invoking the powers of interim bail under section 438 CrPC and that it is the duty of the prosecuting agency to book such a person.  

Question of Law Referred to Larger Bench  

Since a different view has been taken in Vijay Babu’s case (supra), the Court framed the following questions of law and requested the Registry to refer the same to the Chief Justice for adjudication by a larger Bench:  

  1. “If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a nonbailable offence against him, and thereafter if he file bail application under Section 438 CrPC, whether the bail court should entertain such a bail application?  
  2. When an accused went abroad, after knowing that he is an accused in a nonbailable offence, and thereafter filing a bail application before this Court, whether he is entitled interim bail as per Section 438(1) CrPC?  
  3. Whether the bail court has jurisdiction to pass orders restraining the Police in arresting accused without passing interim bail orders as per Section 438(1) CrPC?”  

Conclusion  

With regard to the case at hand, the Court observed that the petitioner was in the Country. Since this bail application was adjourned for consideration by a Division Bench, the Court opined an interim bail could be granted to the petitioner till the disposal of the bail application. The Court remarked,  

“Petitioner is a woman. It is true that the allegation against the petitioner is serious. The bail application is to be heard in detail. But there is no allegation in this case that the petitioner left India after knowing about the registration of this case. Moreover, ADGP also has not seriously opposed granting interim bail to the petitioner.”  

 Therefore, the Court granted interim bail to the petitioner with the direction that in the event of arrest, the petitioner shall be released on bail on executing a bond of Rs.25,000 with two solvent sureties for the like sum. Additionally, the Court clarified that the Investigating officer is free to interrogate the petitioner for the purpose of investigation.  

[Anu Mathew v. State of Kerala, 2022 SCC OnLine Ker 3372, decided on 27-06-2022] 

Appearance by: 

For the Petitioner: M/S E.D. George and Linu G. Nath, Advocates  

For the Respondent: Public Prosecutor  

Kamini Sharma, Editorial Assistant has put this report together

 

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. rejected an anticipatory bail application which was filed apprehending arrest for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the Penal Code, 1860.

The complainant who is 22-year-old girl who was briefly acquainted with the applicant along with her friend had visited residential premises of a third friend and the applicant was alleged to have committed forcible sexual intercourse with her. She alleged that when she opposed, he expressed that he likes her and, in any case, he was going to marry her. Thereafter, on multiple occasions, the act was repeated. The complainant conceived and was found to be carrying six weeks’ pregnancy, she informed the applicant, but he refused to take up any responsibility and on the other hand, attributed her a bad character and alleged that she was in relationship with some other person.

The Court observed that reading of the complaint revealed that the girl, who is major, developed a liking for the applicant, but her version as far as the sexual relationship was concerned, is that she gave her consent, since the applicant gave a promise of marriage. However, when the girl conceived, the applicant attributed infidelity, but once again committed forcible sexual intercourse with her on the last date as mentioned in the complaint.

The Court stated that merely sharing friendly relationship with a girl does not permit a boy to take her for granted and construe it as her consent to establish physical relationship.

This friendship with the person of fairer sex, does not confer a licence upon a man to force himself upon her, when she specifically refuse copulation. Every woman expects ‘Respect’ in a relationship, be it in the nature of friendship based on mutual affection.

The Court rejected the application and held that accusations faced by the applicant definitely requires a thorough investigation to ascertain the version of the prosecutrix that she was forced to give her consent for sex.

[Ashish Ashok Chakor v. State of Maharashtra, 2022 SCC OnLine Bom 1349, decided on 24-06-2022]

Advocates who appeared in this case :

Dr Samarth S. Karmarkar with Mr. Haresh R. B. (Karmarkar & Associates), Advocate, for the Applicant;

Ms. Anamika Malhotra, A.P.P., Advocate, for the State/Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public.

Apprehending his arrest in a non-bailable case, the petitioner had approached the Court for pre-arrest bail.

The Petitioner was alleged to have wrongfully restrained a doctor, the de-facto complainant herein, and threatened her while she was on her way from the doctor’s room to the casualty of the hospital, thereby causing obstruction to her official duty and committing the offences under Sections 341, 353 and 506 of the Penal Code, 1860 and Sections 3 and 4(1) of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 (‘Healthcare Act').

Assailing the allegations, the petitioner contended that he had met with an accident on 10-04-2022 and due to persistent pain, was advised to obtain an X-ray report of his spine. However, despite waiting for more than 1½ hours, his X-ray was not taken, and unmindful of his condition, the de-facto complainant reacted in a hostile manner and threatened not to treat him. Later, he came to know that a complaint was filed against him, resulting in the registration of the present crime.

To ascertain the apprehension of offence against the petitioner, the Court relied on the definition of the word ‘violence’ under Section 2(e) of the Healthcare Act, which reads as below:

“Section 2(e) “violence” means activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions.”

Thus, the Court opined that every harm, intimidation, obstruction or hindrance to a healthcare service person, in discharge of duty is treated as violence. Noticing that Section 4(4) of the Healthcare Act, violence against healthcare service persons is made non-bailable, the Court held that the salutary objective behind the Healthcare Act and the wide meaning ascribed to the word violence, cannot be ignored while considering an application for pre-arrest bail.

The Court remarked,

“The statute regards even an obstruction or hindrance if committed on a healthcare person as a grave offence. Thus, it cannot be held that absence of an assault on the doctor entails a person accused of an offence under the Healthcare Act to be released on pre-arrest bail.”

Considering the wide definition of the term ‘violence’, nestled under the umbrella of a non-bailable offence, the Court held that granting pre-arrest bail to an accused who is alleged to have committed an offence under the Healthcare Act would be incongruous to the legislative mandate.

“A physician with trepidation, a surgeon with trembling hands and a disquiet nurse can lead to the wrong diagnosis, failed surgeries and improper nursing care. Life of several patients could fall into peril. Consequently, the public at large can become prejudiced.”

Therefore, the Court denied granting pre-arrest bail to the petitioner. However, the Court added that if the petitioner surrenders himself before the Investigating Officer within seven days, the officer shall subject him to interrogation and if after interrogation petitioner is arrested, the Investigating Officer shall produce him before the jurisdictional Magistrate immediately, and if any application for bail is preferred, the same shall be considered by the Magistrate in accordance with the law.

[Arun P. v. State of Kerala, Bail Appli. No. 3186 of 2022, decided on 20-06-2022]

Advocates who appeared in this case :

R. Sreehari, Advocate, for the Petitioner;

Noushad K.A., Public Prosecutor, for the State of Kerala.

*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158, decided on 22-06-2022]

Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.

*Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gauhati High Court: A bail application under Section 438 of the Criminal Procedure Code, 1973, (CrPC) was denied by Sanjay Kumar Medhi, J. to a petitioner for a case registered under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and it was held that recovery or seizure of contraband is not a sine qua non for arrest, detention or conviction under the NDPS Act if there are other convincing and corroborating materials.

Background of the case

A Truck was intercepted near Jorabat and consequently in the search, 44,160 bottles of Eskuf cough syrup in 276 cartons were recovered without any documents. The psychotropic substance seized was sold by the agency run by the petitioner to a distributor of Karimganj district. An FIR against the petitioner was registered.

The petitioners contended that though the articles are psychotropic substance it would come under the exception of Section 8 (c) of the NDPS Act and transportation of the same with necessary documents is available under proviso to Rule 67(4) of the NDPS Rules and subsequent generation of bills can at best be violation of the GST Act and cannot be violation of the NDPS Act

The State contended that the very initiation of movement of the consignment involving a huge number of bottles in cartons which admittedly is a psychotropic substance under the NDPS Act, as the cough syrup contains a substance called ‘codeine’, amounted to an offence under the NDPS Act. There were anomalies / illegalities at different stages, including GST invoices. It was further submitted that offences under the NDPS Act, are part of organized crime wherein different roles are played by different accused.

Analysis and decision

The Court affirming the contention raised by the State, noted that, “offences under the NDPS Act are part of an organized crime wherein different roles are played by different accused persons.” Further, while determining the offence under the Act various factors are to be taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc.

While mere recovery and seizure of psychotropic substance cannot be a ground of arrest or detention of the accused, until and unless, there is substantive evidence to prove the conviction, in the case at hand, the offence involved in this case is one under the NDPS Act and the quantity involved was a commercial quantity of chemical manufacture drugs.

Considering the law, coupled with the facts of the case, the Court observed that for purposes of bail under Section 37 of the NDPS Act, the petitioner should have satisfied the Court that he is not guilty of the offence, and he is not likely to commit this offence further. The same was not established by the petitioner. The Court noted that, since the very object of the NDPS Act is to curb the menace of drugs and its ill effects on the society which has the propensity to destroy the generation as a whole; therefore, the court, in view of the facts and contentions presented before it, rejected the petitioner’s plea for anticipatory bail.

[Amal Das v. State of Assam, 2022 SCC OnLine Gau 764, decided on 06-05-2022]

Advocates who appeared in this case :

AM Bora, Advocate, for the Petitioner;

PP, Assam.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While considering an anticipatory bail application concerning an FIR registered in Neemuch, Madhya Pradesh; the Bench of Sanjay Dhar, J., deliberated on the issue that whether this High Court, under S. 438, CrPC, has the jurisdiction to grant bail in a case that has been registered beyond its local limits of jurisdiction. It was held that this Court does not have the jurisdiction to entertain and decide the instant bail application which relates to an FIR that has been registered beyond this Court’s local limits, even though the accused/petitioner may be residing within the jurisdiction of this Court.  

Background and Contentions- As per the facts, petitioner No. 1 and the complainant had entered into wedlock in 2013 and out of this marriage, a son was born. However, things turned sour and an FIR against the petitioners (the husband and in-laws of the complainant) was lodged in Madhya Pradesh alleging commission of offences under S. 498-A of IPC.  

The counsel appearing for the petitioners argued that they are entitled to the grant of anticipatory bail as the Supreme Court has time and again emphasised that in cases of matrimonial offences, arrest of an accused should not be made as a matter of course. 

Observations and Conclusion: Perusing the facts and the contentions, the Court first noted that the FIR itself has been registered at a place which lies beyond the jurisdiction of this Court. Secondly, the Bench observed that a similar issue was raised and answered by this Court in Mohan Singh Parihar v. Commissioner of Police, 1982 SCC OnLine J&K 35 in which it was held that the High Court has no jurisdiction to grant anticipatory bail to a person against whom a case has been registered with a police station which is situated outside the local limits of its jurisdiction under the Code. 

With the aforementioned observations and reference, Sanjay Dhar, J., noted that the petitioners in the instant case, are not seeking transit bail but are seeking bail in anticipation of their arrest on a permanent basis. He however, based on the above stated precedent, concluded that this High Court lacks jurisdiction to grant bail in anticipation, despite the fact that the petitioners are residing in the jurisdiction of this Court.   

[Nasir Ahmad Wani v. Police Station, 2022 SCC OnLine J&K 452 decided on 03-06-2022] 

Appearing for the petitioners- S.T. Hussian, Senior Advocate and Ms. Nida, Advocate 

†Sucheta Sarkar, Editorial Assistant has reported this brief.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: Juvvadi Sridevi, J. granted anticipatory bail subject to completion of investigation and filing of the final report.

The facts of the case are such that the defacto-complainant is daughter in law of the owner of the said house and there are family disputes between de facto complainant and owner of the subject house and during the pendency of O.P. No. 24 of 2019 filed by the defacto complainant, her husband died. Thus, the defacto complainant after the demise of her husband has been harassing her parents-in-law for transfer of property in her name. Thus, the instant criminal petition was filed under Section 438 Criminal Procedure Code i.e. CrPC, to enlarge the petitioners on anticipatory bail in connection with offences registered under Sections 354-B and 506 of Penal Code, 1860 i.e. IPC.

Counsel for petitioners submitted that the petitioners are only tenants of the subject house and the defacto complainant created nuisance in the rented shop of the petitioners and manhandled them. He submitted that the petitioners have not committed any offence and in view of the civil disputes prevailing between the family members of de facto complainant, a false complaint has been registered. Hence, grant of anticipatory bail to the petitioners was prayed.

Counsel for State submitted that on instructions from police it was found out that notice under Section 41- A CrPC was issued to the petitioner/accused 1 and no reply has been given while the investigation is pending. Thus, as they are following the due process of law. Hence, dismissal of the application was sought.

The Court observed that it appears that the accused 2/petitioner 2 was not served with a notice under Section 41-A CrPC and the accused 1/petitioner 1 was only served with the notice.

The Court relied on the guidelines issued by Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and further observed that since the punishment prescribed for the offences alleged against the petitioners is up to seven years and also accused 2 was not issued a notice under Section 41-A CrPC, the respondent – Police are directed to issue notice under Section CrPC to accused 2.

The Court directed the Investigating Officer “to strictly follow the procedure laid down under Section 41-A Cr.P.C. and the guidelines issued.” [A Kaluram v. State of Telangana, 2022 SCC OnLine TS 1135, decided on 19-05-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J. dismissed an application for anticipatory bail in regards to an ongoing trial under Sections 376, 323, 504, and 506 Penal Code, 1860. The previous anticipatory bail application of the applicant had been rejected by the Fast Track Court/Special Judge, POCSO/Additional Sessions Judge, Dehradun on the ground that since the applicant is a child in conflict with the law (“CIL”) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) does not make any provision for anticipatory bail, the application cannot be allowed.

Counsel for the applicant argued that the applicant has not been heard on merits. Bail includes anticipatory bail. It was further argued that the provisions of anticipatory bail are in favour of an accused apprehending arrest, which is beneficial to preserve the right to life and liberty and denial of it to a CIL is not the intent of the legislature.

State Counsel submitted that the Act is a beneficial act for the interest of CIL. CIL may not be kept in police stations or in jail. He is not given in police custody. The safety of child is ensured by the JJ Board. It was further submitted that initially the chargesheet was submitted against the applicant in the court of Chief Judicial Magistrate based on which proceedings of Criminal Case were instituted and cognizance was taken. Subsequently, on an application of the applicant, he was declared CIL and the record of the case was forwarded to the JJ Board. It was argued that thereafter the applicant is not appearing before the JJ Board. Non-bailable warrants have even been issued against him. Therefore, he may not be granted anticipatory bail on this ground also.

The Court reproduced the objects and reasons of the Act and concluded that Sub-section (4) of Section 1 of the Act gives overriding effect to the provisions of the Act as it makes it abundantly clear that particularly in the matter of apprehension, detention, the provisions of the Act would have overriding effect. The Court explained that in the matter of bailable offences, bail is claimed as a matter of right under the Code, but provision of bail as incorporated under Section 12 of the Act are quite distinct. It makes the provision that in all cases, be it bailable or non-bailable, CIL shall be granted bail, provided he fulfils certain conditions. It means, that if the conditions as given in the proviso of Section 12 (1) of the Act are not met, even in bailable cases, CIL may not be granted bail.

The Court was of the view that definitely anticipatory bail may not be granted under the Act and the court below rightly dismissed the anticipatory bail application of the applicant. The Court further stated that the applicant has been avoiding his presence before the JJ Board. On this ground also, the applicant is not entitled to anticipatory bail.[Rashid Rao v. State of Uttarakhand, 2022 SCC OnLine Utt 481, decided on 24-05-2022]

Mr Aditya Singh, Advocate for the applicant.

Mr Lalit Miglani, A.G.A. for the State

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

The informant, who was the wife of the applicant contended that the applicant had demanded 10 tolas of gold and high-quality furniture, at the time of the marriage. Further, it was stated that the parents-in-law had opposed the marriage since the day of marriage and started harassing her. They even used to give pinching words regarding non-payment of dowry.

Adding to the above, it was stated that the mother-in-law used to give messages to the applicant stating that informant is ugly looking girl and thereupon applicant started mentally harassing her.

Due to some medical condition, the informant had to leave her service and once she came back to India, the father-in-law started saying that since she was now unable to ring money by taking up service, she should bring amount of Rs 50,00,000 from her parents, otherwise she should give divorce to the applicant. In 2021, she was assaulted and driven out of the house.

Applicant had approached the Additional Sessions Judge; however, the application of the husband had been rejected and it was stated that the divorce petition have been considered. Further, it was stated that if the divorce petition would not been filed there was every possibility of patch up. However, the husband went one step ahead by filing a divorce petition and the said amount to cruelty.

It was stated that the nature of the applicants was aggressive, and they had treated the informant with cruelty. Further, it was added that if the applicants were enlarged on bail, there was strong possibility of tampering the prosecution witnesses.

Analysis and Decision

High Court expressed that,

“Filing of divorce petition by the husband cannot be taken as an act of cruelty or a ground for rejecting the anticipatory bail.”

Further, the Court stated that, certain articles valuable as well as general articles of the informant were stated to be with the applicant. In fact, she could get it under the provisions of Domestic Violence Act, it need not be seized.

In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, it was observed that there should be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

It also to be noted that Courts should not get carried away with the desire of a party to see the other behind bars. The said may be sometimes to settle the personal score and, therefore, the Courts should be on guard as to whether really the arrest is necessary. Only prima facie case against the person is also not a criterion to be looked into. 

“…not only the police officer but also the learned Sessions Judge or Additional Sessions Judge dealing with an application under Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really require’, ‘what purpose it will serve’, ‘what object it will achieve’.”

The above was stated in view of the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

In view of the above, the application was allowed. [Anmol Madhukar Divekar v. State of Maharashtra, 2022 SCC OnLine Bom 1056, decided on 6-5-2022]

Advocates before the Court:

Mr. M.L. Muthal, Advocate for the applicant

Mrs. V.N. Patil-Jadhav, APP for the respondent