anticipatory bail

Case BriefsSupreme Court

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

Background

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

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

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

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

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

For State of Kerala: Advocate G. Prakash

Also read:

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

Case BriefsSupreme Court

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

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

Background

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

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

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

Relevant grounds on which anticipatory bail was sought

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

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

Analysis

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

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

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

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

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

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

Conclusion

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

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

*Justice MR Shah has penned this judgment.

For appellant: Senior Advocate Mukul Rohatgi, 

For State: Senior Advocate Sidharth Luthra, 

For original informant: Senior Advocate K.V. Vishwanathan

Case BriefsHigh Courts

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

 Brief Facts

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

Contentions

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

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

Decision

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

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

 Brief Facts

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

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

Counsel for the petitioner

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

Counsel for the respondent

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

Opinion of the Amicus

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

 Observations

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

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

Decision

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

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Case BriefsHigh Courts

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

Brief Facts

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

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

 Issue

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

 Observations

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

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

 Decision

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

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Case BriefsCOVID 19High Courts

Jharkhand High Court: Rongon Mukhopadhyay J., rejected anticipatory bail to the ground in light of facts and submissions in the instant case.

The facts of the case are such that the petitioner who is a government employee wrote derogatory remarks in a Facebook post regarding a woman of Malaysian origin which was further circulated on Whatsapp prompting comments targeting a single community. The petitioner apprehends his arrest in connection with the instant case and seeks anticipatory bail before the Court.

The petitioner was represented by Advocate Kumar Amit and the respondent was represented by A.P.P Ruby Pandey.

Court observed that the man being a government employee took a screenshot of his Facebook post and he himself circulated that on Whatsapp group inciting derogatory remarks against a particular community. The allegations leveled are serious in nature and the fact that it was done by a government employee makes the entire incident all the more grave.

Hence the court held that in light of the aforesaid facts and observations petitioner is not liable to be granted anticipatory bail.

In view of the above, the bail was rejected and the petition disposed of.[Shesh Nah Yadav v. State of Jharkhand, 2020 SCC OnLine Jhar 790, decided on 09-09-2020]

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Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J., rejected an anticipatory bail application which was filed when an FIR under Section 3(a)/4 of POCSO Act was lodged by the Complainant as the mother of the victim alleging that the petitioner had sexually assaulted and raped her minor daughter, after which she was sent for medical examination. During the time of the formal investigation, the petitioner had approached the Court of the Special Judge (POCSO), who had initially granted interim bail to the petitioner and had called for the case dairy and after finally hearing the parties and had rejected the application of the petitioner ordering him to be arrested in the said case. Thus, the instant application was filed with this Court asking for a grant of pre-arrest bail on the ground that he apprehended arrest.

The counsel for the respondent, K. Khan and A.H. Kharwanlang, opposed the grant of the bail contending that statement of the victim clearly stated that she was raped by the petitioner and statement of the petitioner states his admission to the fact that there was sexual intercourse between him and the victim, who was a minor and therefore commission of offence under Section 3 of the POCSO Act had been made out.

The Court stated that though the petitioner had not strenuously denied that he had committed the alleged offence, he had however tried to cast some doubt on the same by stating that it was very unlikely to have committed the offence as the place of occurrence was the servants’ quarter where there were about nine other employees staying there further after perusal of the medical reports it was seen that the age of the victim was between 16 and 18 years, which basically meant that she was still a minor at the time of occurrence and by law, any act, sexual in nature with a minor is a crime.

Thus, considering the gravity of the offence the application of the anticipatory bail was rejected. [Heiratami Biam v. State of Meghalaya, 2020 SCC OnLine Megh 102, decided on 18-08-2020]

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Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J., allowed an application of anticipatory bail in connection with the FIR registered for the offences punishable under Sections 328, 342, 323, 504, 506 and 376D of the Penal Code, 1860.

The factual matrix as per the FIR is that the victim was first abducted and later administered some drugs which knocked her unconscious. Then she was taken to a house where she was kept for a few days. At the house, she was raped by the applicant along with the co-accused, Mukesh. The applicant’s wife physically assaulted the victim and threatened her with dire consequences in terms of social backlash and the blot on her career resultant of the act. One day post this incident, the victim somehow managed to inform her mother about her whereabouts after figuring out the name of the village she was being kept in. Later, the victim was forcibly carried to the matrimonial home of Daichi, the co-accused’s wife where she was shut inside a room subsequent to her being told to marry the co-accused’s brother, Babban. Thereafter, she was raped by Babban. At that very moment, a call from the sister of the co-accused was received stating that police had turned up at her place. On 23-09-2019 the applicant and the co-accused drugged her and then took her to Farrukhabad, when somebody called up her brother who took her home. Afterward, the victim’s family placed a call to the police but no action was taken.

The Applicant’s counsel, Ravi Kumar Singh has heavily denied this version contending that the applicant has been falsely implicated in a bogus case as the aforementioned FIR is the result of an ongoing monetary dispute between the victim and the co-accused. The counsel added that FIR has been lodged after a delay of about five months as the date of occurrence is 06-09-2019 while the FIR has been filed on 03-02-2020. He has vouched for his client stating that the applicant would not misuse the liberty and co-operate with the investigation if released on bail.

The counsel for the respondent, G.P. Singh, has vehemently opposed the applicant’s prayer submitting that the victim’s statement has supported the prosecution’s version of facts to which the applicant’s counsel retorted submitting that there is variation in the place of occurrence of the incident as per the victim’s statement and the FIR. As per the FIR, the rape was committed in village Alam whereas in the statement the place of occurrence has been mentioned as village Purthi.

After careful perusal of the facts, circumstance and the arguments advanced, the Court observed that there is an inordinate delay in filing of the FIR without any justifiable cause and that the conduct of the victim’s family does not “inspire confidence” with respect to the FIR. The Court also noted the complete lack of criminal history on part of the applicant.

In view of the above, the application had been allowed granting the relief of anticipatory bail to the applicant. Also, the Investigation Officer has been directed to conclude the investigation expeditiously preferably within three months. [Pratap v. State of U.P., 2020 SCC OnLine All 935, decided on 18-08-2020]

Case BriefsHigh Courts

Gujarat High Court: A.J. Desai, J., allowed an application of anticipatory bail in connection with the FIR registered for the offences punishable under Sections 498A, 304(B), 506(2) and 114 of the Penal Code, 1860.

The counsel for the applicant submitted that the nature of allegations were such for which custodial interrogation at this stage was not necessary.

The Court while allowing the anticipatory bail application considered the facts of the case, nature of allegations which were general in nature, gravity of offences, role attributed to the accused and the fact that the present applicant who happened to be mother in law of the deceased was permanent resident of Uttar Pradesh as also the fact that the FIR had been lodged after a period of almost six months from the date of incident and the fact that the coordinate Bench had considered the case of co-accused and considered the age of the applicant who was aged 66 years reiterating the law laid down in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694. [Binasinh Dayaramsinh Raghuvanshi v. State of Gujarat, 2020 SCC OnLine Guj 1143, decided on 18-08-2020]

*Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding the instant petition filed under Section 438 of CrPC for grant of anticipatory bail, the Bench of Arun Kumar Tyagi, J., observed that there has been rise in the cases of assault and use of criminal force to obstruct a public servant from discharging their duties, thus it is imperative to sternly deal with such cases. The Court further stated that, “To curb the tendency of assaulting or using criminal force to public servants, the protective shield of law has to be extended to such public servants to enable them to effectively discharge their duties without any fear.”

 As per the facts, FIR was registered on a statement made by the Agriculture Development Officer (ADO) Husandeep Singh Brar who alleged that the accused had abused, chased and obstructed the public servants in discharge of their duties and to have damaged their vehicle. It was furthermore alleged that the accused persons have caused injuries to the public servants concerned including lady officer who was part of the team of the public servants who visited the village on 08-06-2020 to persuade the accused not to plant paddy crop before the date notified as per the government instructions i.e.10-06-2020. The counsels for the petitioners contended that there is no medical opinion as to any injury caused being dangerous to life and offence under Section 307 of the IPC is not made out. They further submitted that Offences under Sections 186, 323 and 427 of the IPC are bailable and only the offence under Section 353 of the IPC is non-bailable. The offences under Sections 307 and 382 of the IPC have been added later on. They further argued that there is no requirement of a custodial interrogation especially of the co-accused (petitioner 2 in the instant case), as there is no prima facie offence of snatching of mobile phone from the concerned public servant. Per contra, counsel for the State argued that the petitioner actively participated in the offences and chased the concerned public servants with an intention to give blow with a tangli tied in his hand and the petitioner along with co-accused damaged the vehicle in which the public servants were traveling, therefore custodial interrogation is required.

While perusing the facts and averments made by the parties, the Court referred to P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 wherein the Supreme Court had observed that, “Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases”. The Bench further noted that, “Custodial interrogation of the accused may provide information leading to discovery of material facts. Curtailing of his freedom is necessary in order to enable the investigation to proceed without hindrance and to protect witnesses.” Therefore, in view of the facts and the circumstances, the Court refused to grant anticipatory bail to the petitioners. [Gurpreet Singh v. State of Punjab, 2020 SCC OnLine P&H 838, decided on 01-07-2020]

*Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: Fateh Deep Singh, J. granted anticipatory bail to the petitioner, the father of the bride, while observing that marriages are given contractual tinge and are getting rampant notoriety in the State of Punjab.

Petitioner came up with the first anticipatory bail in a case bearing FIR under Sections 420 and 120-B IPC.

Allegations against petitioner, the father the bride, were that he married his daughter to the complainant as per the arrangement entered between the two sides.

In view of the arrangement, boy, i.e. the complainant was to spend the money to facilitate immigration of the couple to Canada. Wife, thereafter went to Canada after the complainant side had incurred Rs 28/30 lakhs but did not call the husband to Canada leading to the registration of the present case against the petitioner alleging that the complainant’s family have been deceived.

Petitioner’s counsel, R.S. Manhas submitted that it is a pure matrimonial dispute and it was by sheer providence the boy did not qualify for immigration and, therefore, cannot be given the colour of criminality and has sought to denounce the applicability of Section 420 IPC.

Senior DAG, Punjab, Amit Mehta contended that accused side has committed a serious fraud with the complainant party and there is a necessity of custodial interrogation.

Migrated to Canada

On appreciating the evidence placed, Court noted that the girl has been successful in migrating to Canada and the boy had failed to do so the said dispute apparently appears to be a matrimonial dispute.

Keeping in view such like matters whereby marriages are given contractual tinge and are getting rampant notoriety in the State of Punjab, Courts cannot shut its eyes to such shocking reality whereby marriages are being relegated to contracts for attainment of such sinister designs and, thus, a debatable issue arises over the very applicability of Section 420 IPC.

In view of the above observation, petitioner was directed to appear before the investigating officer.

Petitioner shall continue to join investigation and shall furnish an undertaking that he shall abide by the conditions specified under Section 438(2) CrPC. Thereafter, he will be permitted to furnish regular bail bonds to the satisfaction of the trial Court.

Hence petition stood disposed of. [Satpal Singh v. State of Punjab, CRM-M-12011 of 2020 (O&M), decided on 15-07-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Shailendra Shukla, J., while addressing a anticipatory bail application, held that,

“…applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.”

The present anticipatory bail application was filed under Section 428 of Code of Criminal Procedure, 1973 as the applicant’s were apprehending their arrest for the offence punishable under Section 498-A Penal Code, 1860, Section 3/4 of Dowry Prohibition Act, 1961 and Section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Due to some dispute, complainant after her Nikah returned back to her parental house, further the complainant submitted that her husband on 29th March, 2020 pronounced ‘Talaq’ thrice on telephone, thereafter an FIR was lodged against him.

Counsel for objector and State both submitted that after the Nikah when the complainant got pregnant her mother-in-law started alleging that complainant got pregnant much earlier and the child doesn’t belong to her son along with this, she also started asking for money saying that complainant did not give enough dowry to the applicants.

Decision

Bench stated that the applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.

Further the Court noted that there was no physical cruelty , it appeared that early pregnancy became the cause of dispute and as per the complainant there was a telephonic call in which husband of the complainant sought termination of the marriage.

Bench found substance in the submission tat demand of dowry after pronouncing divorce was not possible.

Application was allowed and it was directed that in the event of arrest, applicants shall be released on bail. [Rafique Ahmed v. State of M.P., 2020 SCC OnLine MP 1521 , decided on 08-07-2020]

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J. granted anticipatory bail to the applicant accused of making false allegations against a particular religious group.

The appellant was booked by the Mumbai Police under Sections 295-A (outraging religious feelings), 499 (defamation), 500 (punishment for defamation), 504 (intentional insult with intent to provoke breach of the peace) and 505 (public mischief) of the Penal Code. The applicant had made a video clip making allegations that he was assaulted some members of Tablighi Jamaat and that they had spitted on him. According to the FIR, the allegations in this video were false and the applicant had deliberately made such allegations to hurt religious feelings and has caused rift in the society. 

Vishal Saxena, counsel for the applicant, submitted that the applicant has himself filed a non-cognizable case at the same police station and that he was being falsely implicated, to which APP S.V. Gavand sought time to file a detailed reply.

Considering the nature of allegations in the background of non-cognizable case filed by the applicant himself, at this stage, the Court was inclined to grant ad-interim relief to the applicant till the next date. 

Accordingly, it was ordered that in the event of the arrest of the applicant in connection with CR No. 170 of 2020 registered with Shahunagar Police Station, till the next date, the applicant is directed to be released on bail on his furnishing PR Bond in the sum of Rs 25,000.

The order was directed to remain in operation till 20-5-2020. The applicant shall attend the police station concerned as and when called and shall co-operate with the investigation. The matter is posted for 20-5-2020. [Abuzar Shaikh Abdul Kalam v. State of Maharashtra, 2020 SCC OnLine Bom 628 , decided on 27-4-2020]

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]