Case BriefsHigh Courts

Punjab and Haryana High Court: Three petitions are clubbed together where the petitioners intended to withdraw their bail applications as bail was already granted by the different trial courts. The main issue before Jasgurpreet Singh Puri, J. was effect of filing bail applications and passing of bail orders by the trial courts during the pendency of bail application before High Court by the same accused without disclosing such pendency and what safeguards should be adopted by the trial courts in this regard.

Points discussed in the present petition:

  • Whether bail granted to the petitioners should be cancelled/ set aside on the basis of the suppression and concealment of the material fact regarding pendency of the bail application before the Court.
  • Whether pendency of application is ‘material fact’ for cancellation of bail.
  • Whether bail granted to the petitioners by the trial courts should be cancelled/ annulled or not needs to be tested on the anvil of the fundamental right guaranteed under Article 21 of the Constitution of India.
  • Safeguards to check such wrongful practices.

In all the three petitions the petitioners filed the bail application before the High Court as well as the trial court without disclosing the factum of pendency of the present bail applications except in one case where on the date of the decision of the bail application by the trial courts, it was orally informed that the bail application before the Court has been withdrawn although the same was never withdrawn.

It was submitted by the petitioners that they should not have filed another bail application during the pendency of the bail application before the Court and it was not proper on their part. However, they have submitted that once the trial courts have granted bail to the petitioners on their own merits and the same have not been challenged by the State in any proceedings, the petitioners may be permitted to withdraw the present petitions.

Court appointed Mr. Kanwaljit Singh and Mr. R.S. Rai, Senior Advocates as amicus curiae to assist the Court concerning the further process to be taken in such matters which are not only serious but also affects the administration of justice. In the opinion of Mr. Kanwaljit Singh, such concealment is a fraud upon the Court and must have a deterrent effect, it was submitted that bail granted by the trial courts must be cancelled. By relying upon the judgment of Supreme Court in Dalip Singh v. State of UP., (2010) 2 SCC 114 and Kishore Samrite v. State of U.P., (2013) 2 SCC 398 it was submitted that a party who approaches the court by suppressing the facts and to mislead the court is not entitled to be heard on merits and that it is a bounden duty of anyone approaching the courts to state the whole case fully and fairly and any attempt to mislead and approach with unclean hands should be dealt with severely. On the other hand, Mr. R.S. Rai, suggested that court must strike a balance between the liberty of an individual and the nature and level of misconduct on their part. It was submitted that in all the three cases, the bail applications have been decided by the respective Additional Sessions Judges on their own merits, hence the Court must not cancel or set aside the bail order rather impose a cost.

Mr. Arun Kumar Kaundal, Deputy Advocate General, Punjab submitted that since the petitioners have filed bail applications before the trial courts during the pendency of the present bail applications in all three cases, the present petitions deserve to be dismissed with costs.

Court held, “that cancellation of bail and annulment/setting aside of bail orders are two different aspects. Cancellation of bail is based upon violation of terms and conditions of the bail order and other parameters as aforesaid but setting aside/annulment of bail order by a higher Court is based upon different parameters i.e. legality or perversity in the passing of the order of bail”.

The foremost question before the Court was, whether such bail orders should be set aside or cancelled on the ground of suppression of material fact regarding the pendency of the bail application before the Court or not. It was observed that all the orders granting bail have been passed on their own merits and there was no illegality or perversity in the orders passed by the Courts.

 It was observed that the Supreme Court in Arunima Baruah v. Union of India, (2007) 6 SCC 120, discussed the meaning and scope of the expression ‘material fact’ and the effect of suppression of the same. It was observed that a material fact would mean material for determination of the lis and the logical corollary whereof would be that whether the same was material for grant or denial of the relief. In the present cases although there was a suppression of material fact before the trial court, but the fact was not material determination of the lis and the orders of bail have been passed on their merit. Therefore, the suppression of a material fact of non-disclosure of pendency of bail application before this Court would be subservient to the right of liberty granted to the petitioners under Article 21 of the Constitution of India since the bail orders were decided on merits.

However, Court did not ignore the misconduct on the part of the petitioners and, therefore, in order to secure the ends of justice, cost was imposed on the petitioners.

Court discussed the various safeguards to be adopted to curb the wrongful practice, “It must be mandatorily mentioned in every application for bail (regular/anticipatory) as to whether such or similar application for bail has or has not been made before any other Court. In case the same was made, then its status must be also mentioned”.

[Kulwant Singh v. State of Punjab, CRM-M-52620-2019 (O&M), decided on 11-03-2022]


Ms. G.K. Mann, Senior Advocate and Mr. Gursewak Singh, Advocate, for the petitioner in CRM-M-52620-2019.

Mr. Karan Nanda, Advocate, for the petitioner in CRM-M-17512-2019.

Mr. Rishu Mahajan, Advocate, for the petitioner in CRM-M-2593-2021.

Mr. Kanwaljit Singh and Mr. R.S. Rai, Senior Advocates as Amicus Curiae.

Mr. Arun Kumar Kaundal, DAG, Punjab.

Mr. Shivam Joshi, Mr. Karanjit Singh and Mr. Vijay Bhaskar, Advocates in CRM-M-52620-2019.

Aastha Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., rejected a bail application which was filed by the applicant who was in judicial custody under Sections 153A, 298 Penal code, 1860.

FIR stated that a Dharm Sansad was organized in Haridwar which resolved to wage a war against a particular religion; objectionable words close. The petitioner had released a video message abusing a particular religion, Prophet and made utterances to wage a war against a particular religion.

Senior Counsel appearing for the applicant submitted that these offences were a punishable maximum of three years of imprisonment and triable by the Magistrate.

Counsel for the State had submitted that the applicant provoked masses in general to take up arms against a particular religion, and promoted enmity between different religions. It was further brought into notice that the applicant had criminal history of 34 cases.

The Court stated that bail balances individual liberty with social interest and that right to life and liberty were illuminated rights in our constitution but Court was of the view that there are various factors, which are taken into consideration, while considering the bail application.

The Court refrained to produce the transcripts which were filed by the State because there were huge derogatory remarks against a particular religion; against Prophet. The Court was of the view that the Prophet had been abused; it intended to wound the religious feelings of persons belonging to a particular religion; it intended to wage war. It promoted enmity. It was a hate speech.

The Court rejected the bail application holding that Right to freedom, as granted under the Constitution is not an absolute right. It has limitations. Right to freedom of speech and expression is subject to the restriction as given under Article 19(2) of the Constitution relying on the excerpt by Dr B.R. Ambedkar in the Constituent Assembly Debate of 04-11-1948.

The Court also relied on the Supreme Court judgment in Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477 which discussed the far reaching effect of hate speech. Court finally was of the view that this was not a fit case for bail.[Jitendra Narayan Tyagi v. State of Uttarakhand, 2022 SCC OnLine Utt 188, decided on 08-03-2022]

Mr Rakesh Thaplyal, Senior Advocate assisted by Mr Lalit Sharma, Advocate for the applicant.

Mr Pratiroop Pandey, AGA for the State.

Mr Pranav Singh, Advocate for the informant.

Suchita Shukla, Editorial Assistant has reported this brief.

Conference/Seminars/LecturesLaw School News

About Legal Expatiate

Legal Expatiate is an initiative in lockdown to bring together the best talent of this country and to infuse them with a nation-first attitude. An active forum of researchers, professionals, and students where they arrange webinars of Senior Advocates, High Court Judges and other luminaries, where they arrange various competitions like Research Article Writing Competition, Moot Court Competitions, Essay Competition, Quiz Competition, Certificate Courses etc in order to groom research and advocacy skills of law learners.

About the Course

We bring to you again the well experienced, named and renowned personality in the field of Criminal law from at your doorstep through online sessions. This time, with an aim of learning criminal law from different perspectives of senior and junior lawyers we have invited senior and young advocates having specialization in the field for interaction.

For the complete and proper understanding of drafting we have tried to cover the major aspects of it in 5 days by the best experienced guest speaker.

DAY – 1 (6 PM to 7.30 PM)

Topic – Day I

  1. 1. 1. How to read FIR?
  2. How to get a copy of FIR
  3. What to do when FIR is filed?
  4. What to do if police rejects to file FIR?
  5. How to prevent arrest? (anticipatory bail application

Speaker – R. K. Golani

(Senior Advocate )

Day II

  1. Drafting bail application ( grounds)
  2. How to furnish bail bonds and surety
  3. Drafting fresh Bail application in change of circumstances
  4. Grounds for women and senior citizens for bail
  5. COvID emergency bail
  6. Application u/s 482 for quashing of FIR

Speaker – Roshni Gadiwan

(Young Advocate)


  1. Application for parole and furlough
  2. Application for COVID emergency parole or furlough
  3. Stages of trial – framing of charge, discharge application
  4. Draft an application for permission to submit secondary evidence
  5. Draft questions that should be asked for examination in chief
  6. Read the testimony of a witness and draft questions for cross-examination

Speaker – Mayank Sen

(Young Advocate)

Day IV

  1. Drafting Appeal against conviction
  2. Drafting Appeal agasint acquittal
  3. Drafting Appeal for enhancing punishment
  4. Confirmation of death sentence

Speaker – Sanjay Pandit

(Senior Advocate)

 Day V

  1. Bail application in HC
  2. Anticipatory bail application in HC

Speaker – Adv  Prabhakar Shukla

 Perks of Attending the course

  1.  E certificate of completion
  2. Improvise your skills of litigation
  3. Pocket Friendly course
  4. Easy access on zoom
  5. Experienced guidance at your door step

Who can Attend?

 Students (UG and PG)

  1. Advocates
  2. Academicians
  3. Research Scholars

Registrations Fees:

Rs 500/- only

Last Date of Registration:


Platform of Sessions


Date of Course:

20.1.2022 to 24.1.2022

Registration Procedure

Steps of Registration

  1. Pay 500/- via google pay/phone pay/ paytym to 9225349821 or bank transfer to

Anagha Nitin Pedgaonkar

Account number: 62502752201

Bank: State Bank of India

Branch: Ramdas Tower Branch, Aurangabad

IFS Code: SBIN0050896

  1. Send the screenshot of payment to 8999422426 (to confirm the registration it is mandatory)
  2. Fill the form available at Here
  3. Contact Details for any Quires



Case BriefsHigh Courts

Rajasthan High Court: Sandeep Mehta, J., allowed the revision application, granted bail and set aside the impugned orders.

The facts of the case are such that the petitioner has a child ‘X’ son who is a young boy of less than 16 years in conflict with law and been confined for the offences under Sections 341 and 395 of the IPC and is lodged at the Child Observation Home, Dungarpur. The bail application was preferred on his behalf by his natural guardian (father) Laxman under Section 12 of the Juvenile Justice Act was rejected by the Principal Magistrate, Juvenile Justice Board, Dungarpur which was challenged by an appeal under Section 101 of the Juvenile Justice Act which was also rejected. Assailing these two orders instant revision application was preferred under Section 397 of the CrPC read with Section 102 of the Juvenile Justice Act through his natural guardian.

Counsel for the State submitted that the revision cannot be decided in absence of a notice to the complainant respondent 2 Mani Lal.

Sections 12, 101 and 102 of the Juvenile Justice Act are the provisions dealing with the prayer for bail made on behalf of the CICL at different stages

The Court observed that an application for bail on behalf of a CICL is firstly required to be filed before the Juvenile Justice Board under Section 12 of the Act, which does not stipulate any opportunity of hearing to the complainant/victim for deciding such bail application.

The Court observed that in case of rejection of the bail application by the Board, the CICL can approach the Children court/Sessions court concerned by filing an appeal under Section 101 of the Juvenile Justice Act which makes it clear that there is no requirement in this provision as well to hear the complainant/victim

It was observed in case of an appeal preferred thereagainst under Section 101 of the Juvenile Justice Act has also been rejected, these orders can be challenged by filing a revision in the High Court by invoking powers conferred under Section 102 of the Juvenile Justice Act which stipulates that the High Court shall not pass an order under this section, prejudicial to any person without giving him a reasonable opportunity of being heard.

The Court observed that after analyzing the entire scheme of the Juvenile Justice Act, I am of the firm view that the concept of hearing the complainant in an application for bail of a CICL under the Juvenile Justice Act be it before the Board, the appellate court or the revisional court is totally foreign to the fundamental principles underlying the welfare legislation.

The Court also observed that if the legislature had intended to give a right of hearing to the complainant in proceedings of bail, under the Juvenile Justice Act specific insertions to this effect could have been made in Sections 12, 101 and 102 of the Juvenile Justice Act as are available in the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, another special legislation.

The Court observed that practice has been adopted of impleading the complainant as a party in a revision for bail of a juvenile under Section 102 of the Juvenile Justice act. It has also been seen on numerous instances that in cases involving multiple accused, of which few are adults and one is juvenile, the bail applications of the adult offenders are decided much earlier, whereas the juvenile continues to languish in the Observation Home, awaiting service of notice on the complainant.

This anomalous situation is absolutely unwarranted and has to be resolved by taking a pragmatic, legal and logical view of the situation.

The Court held “The apprehension expressed regarding the likelihood of the petitioner coming into contact with other offenders can be taken off by requiring his natural guardian to furnish a suitable undertaking. I am of the opinion that petitioner child is entitled to be enlarged on bail. Consequently, the instant revision is allowed.”[X v. State, S.B. Criminal Revision Petition No. 494/2021, decided on 01-07-2021]

Arunima Bose, Editorial Assistant has reported this brief.

For Petitioner(s): Mr. Jitendra Ojha

For Respondent(s): Mr. Arun Kumar

Case BriefsHigh Courts

Jammu And Kashmir High Court: Terming it “heinous”, the Division Bench comprising of Tashi Rabstan and Javed Iqbal Wani, JJ., refused to grant suspension of sentence and bail to the applicants convicted for murder of a Ajit Singh Dogra, Deputy Adv. General. The Bench stated,

“The accused/applicants have been held guilty and convicted/sentenced for commission of a heinous offence against the then serving Law Officer (Deputy Advocate General of the State) after a full dressed trial for about twelve years by the trial court and upon evaluation of ocular, circumstantial, medical and scientific evidence. The aforesaid position cannot be overlooked by this court.”


The applicants had been convicted and sentenced for the commission of offences punishable under Sections 302, 34, 341 RPC and Section 30 Arms Act. The brief facts of the case were such that on 10-01-2008, a Sub Inspector while on patrol duty in Muthi Area received a verbal report regarding an attack with sharp edged weapons and indiscriminate firing by the convicts on Ajit Singh Dogra (the then Deputy Advocate General) while the said advocate was coming from the Court. The injured advocate had been shifted from JMC Jammu to Apollo Hospital Delhi, where he succumbed to his injuries on 19-01-2008.

The counsel for the applicants while pressing for suspension of sentence and grant of bail in favour of the applicants argued that the judgment of the Trial Court besides being perverse and flawed was based on no evidence connecting the accused persons with the commission of the offences they had been convicted and sentenced. Besides, the counsel sought bail on the premise that the accused persons had been under incarceration for the last more than ten years and that since there was no possibility of adjudication/disposal of their respective appeals in near future therefore, the applicants had become entitled to grant of bail during pendency of their respective appeals.

Findings of the Court

The Bench stated that a plain reading of Section 389 CrPC, makes it is clear that the Section confers discretionary jurisdiction on Appellate court to suspend the execution of sentence during the pendency of the appeal on valid reasons recorded in writing. Law being settled that although the High court is not debarred from suspending the sentence and granting bail to a convict but that power has to be exercised sparingly while objectively assessing the matter and that too in the particular circumstances of each case.

Relying on the case of Preet Pal Singh v. State of UP, 2020 (8) SCC 645, wherein it had been held by the Supreme Court that, “There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction…in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial.”; the Bench opined that none of the applications by the applicants had spelt out any cogent ground giving rise to substantial doubt about the validity of the conviction.

Noticeably, perusal of the record demonstrated that applicants/accused persons had been convicted and sentenced by the Trial Court after holding a full dressed trial having found them guilty of the commission of a heinous crime of murder of a practicing advocate, in furtherance of their motive, intention etc etc., upon threadbare consideration, analysis and evaluation of direct, circumstantial, scientific and medical evidence by the Trial Court. Reliance was also placed by the Bench on the decision of Supreme Court in Masood Ali Khan v. State of U.P.,(2009) 3 SCC 492 , wherein it had been held that:

…it is only in exceptional cases that the benefit of suspension of sentence can be granted…the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High court, while passing the impugned order.”

Differentiating the decision in Akhtari Bi v. State of M.P, (2001) 4 SCC 355, the Bench expressed that the respective appeals of the applicants had been filed in the year 2020-2021 itself and the period of five years had not yet elapsed as such, the applicants could not be held entitled to the concession of bail on the ground of delay in disposal. Even otherwise assuming the said period of five years was over, yet bail could not be granted to the applicants in view of ratio laid down by the Supreme Court in “Preet Pal Singh’s and “Masood Ali Khan’s” cases.

Accordingly, the instant application was dismissed, rejecting the applicant’s request for suspension of sentence and consequent grant of concession of bail during pendency of their respective appeals.[Vishal Sharma v. U. T. of J&K, 2021 SCC OnLine J&K 390, decided on 02-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Applicants: Sr. Adv. Sunil Sethi with Adv. Vaibhav Gupta

For UT of J&K: AAG Aseem Sawhney

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., rejected a bail application wherein the Petitioner, Principal of a School, aged about 58  years, was accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03-03-2021.

The counsel for the petitioner, Mr B. Sharma, Senior Advocate with Mr B.N. Sharma, Mr Bhupendra Giri and Mr Charles L. Lucksom submitted that the petitioner was been falsely implicated in the instant case and that he was a responsible person running a well established Private School and was also a Politician having been elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he was a well reputed Social Worker and owned large property in South Sikkim. That, the investigation in the matter had been completed and he was no longer required in custody. It was further urged that he was suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus, and the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone sufficed for grant of bail.

Opposing the bail application, counsel for the respondent Mr Yadev Sharma, submitted that the victim was the child of 17 years and was studying in the School run by the Petitioner as the Principal and in lieu of paying personal attention to the victim he touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. That, since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law. That, Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, was being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

The Court considered several factors before deciding on this matter of bail which were:

  • existence of prima facie case against the accused,
  • the nature and gravity of the accusations,
  • the penalty likely to be imposed,
  • chances of the accused absconding on being enlarged on bail,
  • the antecedents and standing of the accused in society;
  • likelihood of repetition of the offence,
  • reasonable apprehension of evidence being tampered with and witnesses being influenced; and
  • the course of justice being defeated by grant of bail.

The Court considered the FIR and the medical documents on record and observed that there was no imminent threat to the life of the petitioner. The Court further held that the gravity of the offence was necessary to be taken into consideration and the acts of the Petitioner were indeed heinous having been perpetrated on a minor under his care and guidance.

The Court while rejecting the plea for bail held that there is a prima facie case against the Petitioner although elaborate examination of evidence has not been embarked upon nor were the merits of the case being touched upon, to avoid any prejudice to the petitioner.[Lopsong Lama Yolmo v. State of Sikkim, Bail Appln. No.06 of 2021, decided on 16-04-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Telangana High Court: G. Sri Devi, J., while addressing a bail application filed in a case of ‘Honour Killing’ enumerated the factors that are significant while granting bail.

Instant criminal petition was filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 seeking to release the petitioners on bail.

Prosecution’s Case

In the Charge-Sheet it was stated that the deceased – Chinta Yoga Hemanth Kumar fell in love with the de facto complainant and decided to marry her. Both of them belonged to different castes due to which their parents were not happy.

Parents of the de facto complainant, with relatives, help tried to convince the de facto complainant and the deceased and forcibly took away the de facto complainant’s phone. But the love affair continued, and marriage was solemnized.

It was stated that the parents of the de facto complainant hatched a plan to do away with the life of the deceased and murdered the deceased in connivance with the other accused of marrying their daughter, which was an inter-caste marriage.

Important factors while granting bail 

While granting bai1, it is necessary for the Court to consider the following factors among other circumstances: 

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant

(c) Prima facie satisfaction of the Court in support of the charge;

It was noted that the present was the third bail application by the petitioners as the previous ones were rejected by the co-ordinate Bench of this Court.

In the Supreme Court decision of State of T.N. v. S.A. Raja, (2005) 8 SCC 380, it was observed that:

“…principles of res judicata are not applicable to bail applications, but the repeated filing of the bail applications without there being any change of circumstances would lead to bad precedents.” 

Bench in lights of the facts and circumstances along with evidence placed on record, noted that the modus operandi adopted by the petitioners and other accused in the crime would also prima facie disclose that they committed the offences to do away the life of the deceased in order to separate the de factor complainant from him.

High Court also added that the Assistant Public Prosecutor’s apprehension that it was difficult to secure the presence of the petitioners, if they were released on bail could not be ruled out.

Hence, since no change of circumstances from the date of dismissal of earlier bail applications was found, present bail application was rejected. [Ardham Ranjit Reddy v. State of Telangana, 2021 SCC OnLine TS 320, decided on 08-03-2021]

Case BriefsHigh Courts

Allahabad High Court: In an interesting case regarding a controversial web-series, Tandav broadcasted on Amazon Prime on 16-01-2021, Siddharth, J., had denied anticipatory bail to Aparna Purohit, head of India Originals at Amazon Seller Services Pvt. Ltd. The Court remarked,

Actions of the applicant being against fundamental rights of majority of citizens, her fundamental right of life and liberty cannot be protected by grant of anticipatory bail.

The instant anticipatory bail application had been filed with a prayer to grant bail to the applicant in a case filed under Sections 153(A)(1)(b), 295-A, 505(1)(b), 505(2) Penal Code, Sections 66 and 67 of the Information Technology Act and Section 3(1)(r) of SC/ST Act. The allegations against the applicant were that religiously insensitive and objectionable scenes had been deliberately put in the movie to make the web series controversial and gain publicity for the purpose of commercial gain. In the series, caste and community-related utterances had been made deliberately so that it may affect public peace. Some of the dialogues that lead to outburst were:

“Bholenath, you are very innocent, do something new, Infact tweet something new, something sensational, some flaming blaze, like (Thinking) Yes, “All students of Campus became traitors, they are raising slogans of freedom-freedom” and

“When a man of a lower caste dates a woman of a higher caste, he is taking revenge for the centuries of atrocities from that one woman.”

The Bench observed, the scenes referred to above had shown the woman of higher caste in a derogatory manner affecting the dignity of the woman since she had been made a symbol of revenge of a man of lower caste for taking revenge against the atrocities done against the woman of lower castes from long time. The judge, while making a remark on the title of the movie said that, the use of the word “TANDAV” as the name of the movie could be offensive to majority of people since this word was associated with a particular act assigned to Lord Shiva. The scenes alluding to Lord Rama gaining popularity on social media were considered by the Court as a clear pointer to the dispute regarding the construction of Lord Ram’s temple.

Noticing the manner in which Devakinandan (a movie character) was abusing the man of lower caste working as a cobbler, comments regarding grant of reservation to scheduled castes and a scene where the image of the police of State of Uttar Pradesh had been depicted adversely the Bench stated,

“Irrespective of caste, boys and girls are marrying and the message given in the movie that if a man of lower caste dates a woman of higher caste, it will amount to revenge for the centuries of atrocities committed against people of lower caste by dating of woman of higher caste is not as per Article 38 of the Constitution of India.”

While relying on Amish Devgan v. Union of India, (2021) 1 SCC 1, wherein the Supreme Court had held that paradox of toleration is that if we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend the tolerant society against the onslaught of intolerant, then the tolerant will be destroyed,

the Court said though cast and the crew had issued an unconditional apology and had removed the offensive scenes and now there was no offensive material in the series, the submission of apology or withdrawal of scene after its streaming would not absolve the accused persons of the offence committed by them.

Further, the Bench expressed concern over worsening trend in hindi film industry of showing Gods and Goddesses in disrespectful manner (Ram Teri Ganga Maili, Satyam Shivam Sundram, P.K., Oh My God, etc.). The Bench stated not only this; efforts had been made to subvert the image of historical and mythological personalities (Padmavati) and names and icons of faith of majority community had been used to earn money (Goliyon Ki Rasleela Ram Leela). To point out that similar trend had been followed in comedy, the judge mentioned how an obscure stand-up comedian, Munawar Faruqui, from Gujarat made comments on Hindu God and Godesses.

Lastly, the Single Judge observed that on the one hand, the sentiments of majority community had been hurt by display of the characters of their faith in disrespectful manner and on the other hand, an attempt had been made to widen the gap between the higher castes and the scheduled castes when the object of the State is to bridge the gap between the different castes and communities and make the country a united force socially, communally and politically.

Hence, in the light of facts that the applicant was granted interim protection from arrest by the order dated 11-02-2021 by a co-ordinate Bench, but she was not co-operating with the investigation the instant bail application was rejected.[Aparna Purohit v. State of U.P., 2021 SCC OnLine All 179, decided on 25-2-021]

Kamini Sharma, Editorial Assistant has put this story together.

Case BriefsHigh Courts

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

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


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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi, J., while addressing the instant case highlighted the significance of “Right to be forgotten” and observed that,

“…many victims find the criminal justice system complex, confusing and intimidating.”

The instant application was preferred under Section 439 of the Criminal Procedure Code, 1973. Offences pertaining to which the application was preferred were punishable under Sections 376, 292, 465, 469, 509 of Penal Code, 1860 read with Sections 66, 66(C), 67, 67(A) of the I.T. Act, 2000.

Factual Matrix

In the FIR set forth on 03-05-2020, It was alleged that the informant was in love with the petitioner for a period of about one year.

Both the petitioner as well as the informant were village mates and classmates. One day, petitioner went to the house of the informant and taking advantage of her being alone, she was raped and the gruesome incident was recorded on his mobile phone.

Petitioner threatened to kill the informant if she disclosed the incident to her parents and also the photos and videos would be made viral.

Further, it was alleged that the petitioner had maintained physical intimacy with the informant.

Objectionable Photos on Facebook

Upon the informant narrating the incident to her parents, the petitioner opened a fake Facebook ID in the name of the informant and uploaded all the objectionable photos using the said ID in order to further traumatize her.

Initially, the police failed to take any step and portrayed unsoundness of the police system. After much difficulty, finally, the informant could get the present FIR lodged.

Analysis, Law and Decision

Prima facie it appeared to the Court that the petitioner uploaded objectionable photos/videos on a social media platform and on police intervention the same was deleted.

“…the information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away.”

Right of the Victim

Court observed that, the Criminal Justice system prescribes a strong penal action against the accused of the heinous crime but there is no mechanism available with respect to the right of the victim to get the objectionable photographs deleted from the server of the Facebook.

Bench adding to the issue of the right of the victim also stated that there is an unprecedented escalation of insensitive behavior on the social media platforms and the victim like the present one could not get those photos deleted permanently from the server of such social media platforms like Facebook.

Right to Privacy | Right to get Deleted

The statute prescribes penal action for the accused of such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved.

Right to be Forgotten

Bench notes that presently, there is no statute in India which provides for the right to be forgotten/getting the photos erased from the server of the social media platforms permanently. Whereas, the legal possibilities of being forgotten online or offline cries for a widespread debate.

Adding to the above, it was also stated that every single time, it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased which is within the control of data controllers such as Facebook or Twitter or any other social media platforms.

In the case of Google Spain SL v. Agencia Espanola de Protection de Datos, (AEPD), C-131/12 [2014] QB 1022, the European Court of Justice ruled that the European citizens have a right to request that commercial search engines, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant. The Court, in that case, ruled that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances; the same would even override the public interest in access to information.

Relying on the decision of the Supreme Court on K.S. Puttaswamy (Privacy-9J), (2017) 10 SCC 1, Court stated that at present,

“…there is no statue which recognizes right to be forgotten but it is in sync with the right to privacy.”

However, the Ministry of Law and Justice, on recommendations of Justice B.N. Srikrishna Committee has included the Right to be forgotten which refers to the ability of an individual to limit, delink, delete, or correct the disclosure of the personal information on the internet that is misleading, embarrassing, or irrelevant etc. as a statutory right in Personal Data Protection Bill, 2019.

Supreme Court in the decision of X v. Hospital ‘Z’, (1998) 8 SCC 296, recognized an individual’s right to privacy as a facet Article 21 of the Constitution of India. It was also pertinently held that the right which would advance the public morality or public interest would alone be enforced through the process of the court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the halls known as the courtroom but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day.” 

Delhi High Court in the decision of Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 (175) DRJ 660 also recognised the “right to be forgotten” and ‘Right to be left alone’ as an integral part of individual’s existence.

Karnataka High Court in {Name Redacted} v. Registrar General, WP (Civil) Nos. 36554-36555/2017 decided on 04-01-2018 recognized “Right to be forgotten” explicitly, though in a limited sense. Petitioner’s request to remove his daughter’s name from a judgment involving claims of marriage and forgery was upheld by the Court. It held that recognizing the right to be forgotten would parallel initiatives by ‘western countries’ which uphold this right when ‘sensitive’ cases concerning the ‘modesty’ or ‘reputation’ of people, especially women, were involved.

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

Bench observed that the above-stated was the first legal framework which recognized the need to protect the privacy of personal data, but failed to capture the issue of the “Right to be Forgotten”.

Capturing the images and videos with consent of the woman cannot justify the misuse of such content once the relation between the victim and accused gets strained as it happened in the present case.

Adding to its observations, Court stated that

If the right to be forgotten is not recognized in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered.

High Court also stated in reference to the Personal Data Protection Bill that, Section 27 of the draft Bill, 2018 contains the right to be forgotten. Under Section 27, a data principal (an individual) has the right to prevent continuing disclosure of personal data by a data fiduciary. Court points out that the said Bill carves out the “right to be forgotten”.

Bench prima facie stated that the petitioner has not only committed forcible sexual intercourse with the victim girl but has also deviously recorded the intimate sojourn and uploaded the same on a fake Facebook account.

In view of the heinousness of the crime, petitioner does not deserve any consideration for bail at the present stage.

“Indian Criminal Justice system is more of a sentence oriented system with little emphasis on the disgorgement of victim’s loss and suffering, although the impact of crime on the victim may vary significantly for person(s) and case(s)– for some the impact of crime is short and intense, for others the impact is long-lasting.”

Court in regard to the objectionable photos stated that, allowing such objectionable photos and videos to remain on a social media platform, without the consent of a woman, is a direct affront on a woman’s modesty and, more importantly, her right to privacy.

Bench in view of the above was not inclined to enlarge the petitioner on bail. [Subhranshu Rout v. State of Odisha, 2020 SCC OnLine Ori 878, decided on 23-11-2020]

Advocates who appeared in the matter:

For the Petitioner: Bibhuti Bhusan Behera and S. Bahadur, Advocates

For the Opposite Party: Manoj Kumar Mohanty, Additional Standing Counsel

Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J., while deciding an application against cancellation of bail said: in cases where “any bail application of accused is allowed or rejected under Section 439 CrPC by the Special Court then appeal shall not lie under Section 14–A(2) of the Atrocities Act. Only an application under Section 439 CrPC for bail shall lie.”

Brief Facts

The instant applicant under Section 439(2) of Code of Criminal Procedure has been preferred by the applicant-complainant for cancellation of bail granted to respondent 2, the accused who was enlarged on bail by this Court vide order dated 26-02-2020 in Criminal Appeal No. 1759/2020. Accused is facing trial for offence under Section 363, 366-A, 376 of the Penal Code, Section 3 (1)(w)(ii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).


  1. Whether High Court can entertain an application under Section 439(2) of CrPC for cancellation of bail granted in exercise of powers conferred under Section 14-A(2) of Atrocities Act?
  2. Whether the Court granting bail in an appeal under Section 14-A(2) of Atrocities Act can be recalled/cancelled as the order granting bail does not attain finality?
  3. Whether in an offence where the provisions of the Atrocities Act and POCSO Act are involved, the procedural law of the POCSO Act will apply or the provisions of Atrocities Act?
  4. Whether, in a composite offence involving of provisions of POCSO Act and Atrocities Act, an order refusing bail under Section 439 CrPC will be appealable as per Section 14-A(2) of Atrocities Act or an application under Section 439 CrPC will lie before the High Court?
  5. What is the scope and extent of bail conditions as referred in Section 437(3) of CrPC?


  • Answering issue (i) and (ii), the Court explained the altered position of Section 439 CrPC, after the recent amendment to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, remarking,

“By virtue of such amendments, which came into being in year 2016, concurrent jurisdiction of this Court to grant regular bail under Section 439 CrPC has been taken away and in place of concurrent jurisdiction, an appellate jurisdiction has been conferred by way of an appeal under Section 14-A(2) of Atrocities Act. Although, provisions of appeal has been made but it still emanates from an order of refusal of bail by Special Court under Section 439 of CrPC. Original statutory source of Section 439 is still intact. Only difference is replacement of concurrent jurisdiction with appellate jurisdiction.”

  • The Court reiterated the legislative intent of the amendment enforced in 2016 and said that, the very objective of it was Speedy Trial and Protection of Victim’s Rights. It further elaborated the definition of Victim under the Atrocities Act in comparison with the definition stated under Section 2(wa) CrPC. Furthermore, the Court acknowledged the Victim’s right to appear before the Court at the time of hearing of bail application as enshrined under the said Act. With respect to intent and objectives of the Act, the Court placed reliance on, Provision of Section 14-A, SC/CT (Prevention of Atrocities) Amendment Act, 2015 (Allahabad HC, Criminal Writ and Public Interest Litigation No. 8/2018) and Bishveshwar Mishra v. State of Bihar (Patna HC, Criminal Miscellaneous No. 25276/2016)
  • Furthermore, the Court relying upon the case of Puran v. Rambilas, (2001) 6 SCC 338, held that the High Court being the superior court has inherent powers to cancel the bail and no interpretation which restricts these powers or nullifies Section 439(2), CrPC can supersede. Reflecting upon the Mischief Rule of Interpretation, the Court highlighted four principles that must be considered for true interpretation of any statute: (i) What was the common law before making of the Act, (ii) What was the mischief and defect for which the common law did not provide, (iii) What remedy the Parliament has resolved and appointed to cure the disease of the Commonwealth and (iv) The true reason of the remedy.
  • The court further cited, Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, elaborating on secondary victimization of the complainant, the term as coined by the Supreme Court;

 “… today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both.

  • Regarding the application of procedural laws in case of two special laws, for instance, POCSO and Atrocities Act, as in the present case, the Court said that provisions of POCSO Act are in addition and not in derogation of the provisions of any law including Atrocities Act. Since the victim is a minor girl, almost a child, and the objective of POCSO Act is to protect children from sexual offences, the Special Court under POCSO Act would be the appropriate forum rather than the Special Court under Atrocities Act.
  • With respect to issue (iv), the Court said, against the order of Special Court (POCSO Act), application under Section 439 CrPC for bail shall be maintainable instead of appeal under Section 14-A(2) of the Atrocities Act.
  • Discussing the scope and extent of bail conditions under Section 437(3) of CrPC, the Court said that it has a wider scope to cover community service and other reformative measures, not being “excessive, freakish and onerous” in nature. For concluding the same, reliance was placed upon Report Nos. 36, 47, 156, 268 of the Law Commission of India and as reflected in the particular judgment of the Supreme Court in the case of Munish Bhasin v. State (NCT of Delhi), (2009) 4 SCC 45, and Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570.


While deciding the question of jurisdiction and grant of bail, the Court directed the office to place this matter before the Acting Chief Justice of the High Court for issuance of necessary guidance and for circulation amongst District and Sessions Judges for information and compliance. It further said,

“When an accused is being tried under the Atrocities Act as well as the POCSO Act simultaneously, then Special Courts under POCSO Act shall have the jurisdiction and if in the event that any bail application of accused is allowed or rejected under Section 439 of Cr.P.C. by that Special Court then appeal shall not lie under Section 14-A (2) of the Atrocities Act. Only an application under Section 439 of Cr.P.C. for bail shall lie.”

The true reason for the remedy is to provide speedy justice to the victims and for the provisions to act as a deterrent to the miscreants. The right of victims to approach the High Court in case of bail condition should not be violated to defeat the very spirit of the SC/ST Amendment Act in 2015.[Sunita Gandharva v. State of M.P., 2020 SCC OnLine MP 2193, decided on 8-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

Brief Facts

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


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

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


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


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

Case BriefsHigh Courts

Allahabad High Court: While deciding an application for quashing the charge sheet, Om Prakash-VII, J., disposed of the same finding it difficult to conclude that the offences levelled against the applicant are not made out.

The present application has been filed by the applicant pleading the Court for quashing the charge sheet as well as the entire proceedings in Case No.160 of 2020 in connection with the FIR registered for offence punishable under Section 380 of the Indian Penal Code (IPC) pending before the Addl. Chief Judicial Magistrate, Saidpur, Ghazipur. The applicant has also requested for a stay on any further proceedings in the aforesaid case.

Counsel for the applicant, Shashank Kumar has submitted that the applicant has been falsely implicated in the said case and that the charge sheet has been submitted on the basis of insufficient evidence. It is also contended that the present prosecution has been instituted with malafide intention.

Counsel for the respondent has vehemently objected to the present application and the relief sought.

Upon careful perusal of the facts, circumstances and arguments advanced by both the parties, the Court observed that all the submissions made by the applicant are directed towards the disputed questions of fact which cannot be adjudicated by the Court under section 482 of the Criminal Procedure Code, 1973.

With respect to the question of law, there is a well-settled position of law through a string of judgments delivered by the Supreme Court in the cases of R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222 and Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq, (2005) 1 SCC 122. The materials on record are sufficient to help in arriving at the conclusion that it cannot be said that the offences levelled against the applicant are not made out.

Later counsel for the applicant prayed for expeditious disposal of the applicant’s bail application.

In view of the above, the Court disposed the application with the direction that in case applicant surrenders before the Court below and applies for bail within two months from the date of present order, the same shall be considered and decided in view of the settled law. For a period of two months, no coercive action shall be taken against the applicant.[Ram Milan Yadav v. State of U.P., Application u/s 482 No. 13647 of 2020, decided on 28-09-2020]

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J., rejected the bail application of the applicant-accused in connection with the FIR registered for offence punishable under Sections 420, 467, 468 and 471 of the Penal Code, 1860.

The present case arises from the allegations that have been levelled against the applicant that she had bagged the job of a panchayat teacher on the basis of a forged TET certificate. Consequent to this an FIR was registered and the applicant, apprehending arrest has now filed an application for anticipatory bail.

Counsel for the petitioner, Umesh Chandra Verma has submitted that the applicant is not a party to any forgery and even if it was done, the certificate wasn’t created by the applicant. In this situation, only Section 471 of the IPC would be attracted as no offence other than the act of producing a certificate for obtaining employment can be attributed to the applicant. The offence under Section 471 IPC is bailable. It has been mentioned that the applicant was not aware that the certificate being produced by her is forged and fabricated and that the applicant has no criminal history.

Counsel for the respondent, Ajay Mishra has vehemently objected to the present application contending that upon verification of the applicant’s TET certificate from the Bihar School Examination Board it was revealed that the applicant had not even cleared the exam but has still obtained a certificate through illegal means saying otherwise. The applicant cannot escape liability as to the act of producing the fake certificate also raises the presumption that she was also party to the process of creation of the same. Since the applicant obtained the job of a teacher being fully aware that a TET certificate was the basic requirement and that she had not cleared the examination, the most obvious presumption would be that the applicant is accountable for all the acts that were committed including the creation of the forged document.

In view of the above, the Court rejected the application for anticipatory bail finding the applicant’s arguments unconvincing.[Pallavi Priyadarshani v. State of Bihar, 2020 SCC OnLine Pat 1319, decided on 09-09-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J. allowed the application and enlarged the applicants on bail.

The applicants in the instant case were arrested for offences falling under Sections 8/21 and 29 Narcotic Drugs and Psychotropic Substances Act, 1985. It was alleged that the recovered contraband was heroin.

Counsels for the applicants, Mohd. Yaseer Choudhary, Syed Aaqib Mujtaba, and Ashfaq Mir argued that the said contraband, even if taken as a whole, didn’t fall within the category of commercial quantity and rather would fall within the category of the intermediate quantity. Further, the applicants had been in custody for more than eight months without trial because the proceedings not being conducted because of restrictions imposed due to COVID-19 pandemic and no witness has been examined by the trial court to date. It is further submitted that apart from the FIR, the prosecution didn’t bring forth any incriminating facts before the Court showing involvement of the applicants in any similar type of offences earlier.

The respondent-Union Territory objected by contended that filed the application was not maintainable for the reasons that to maintain a subsequent/successive bail application, change of circumstance is required. However, in the instant application, there is no change of circumstance rather the applicants are trying their luck before this Court. It was further contended that that the applicants did not deserve to be enlarged on bail as they are drug peddlers. This objection was raised by relying on the Supreme Court verdict in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42.

The Court went the other direction and relied on another verdict of the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501 wherein it was held that the findings of the Court or higher court while rejecting the earlier bail application are to be considered when the bail application is filed subsequently either before the same court/ court of coordinate jurisdiction or before the subordinate court. Further, as a rule, the successive bail application is required to be heard by the same judge. Once the higher Court rejects the bail application, then the fresh bail application cannot be entertained by the subordinate court unless there is a change of circumstance/situation. Even before the same Court, the successive bail applications cannot be entertained on the same facts when the earlier bail application has been rejected. The principle of bar in entertaining successive bail application without change of circumstance shall apply in those cases where the subsequent bail application is filed before the same court or the court of co-ordinate jurisdiction. Thus if the bail application is rejected by the Court, the accused is well within his right to approach the higher court on similar facts for grant of bail but not vice-a-versa.

Furthermore, in Diwan Singh v. State of J&K, 2010(3) JKJ 367 it was held that once an anticipatory bail application is rejected by the Sessions Court on the same cause of action, fresh application before High Court can be filed.

Thus, the Court while pronouncing its decision stated that:

“The conclusion of the trial may take some time as there is no possibility of the conclusion of trial in near future so the applicants cannot be kept in custody for long time as a matter of punishment.”

Nevertheless, the Court also held that since the quantity of recovered contraband was an intermediate quantity, the rigors of Section 37 of the NDPS Act could not apply.[Liaqat Hussain v. Union Territory of J&K, 2020 SCC OnLine J&K 424, decided on 25-08-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., rejected the bail application of the applicant finding no merit in the application in connection with the FIR registered for offences punishable under Sections 363, 366, 376 of the Penal Code, 1860 and Sections 3/4 of the POCSO Act.

The applicant has filed six applications prior to the present one. The applicant had been arrested on 13-06-2018 for crimes committed under the aforementioned sections of IPC and POCSO. The previous application has already been dismissed by order dated 25-09-2018 passed in MCRC No. 29669/2018.

The counsel for the applicant, Nirmal Sharma has contended that there are major discrepancies in the testimony of the material witnesses.

Heeding to this particular argument, the Court relied on the case titled Satish Jaggi v. State of Chhattisgarh,(2007) 11 SCC 195 and observed that at this stage of bail, it would not be fit to look into the credibility and reliability of the witnesses. The relevant para from the judgment has been quoted below-

 ’12. Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amounts to the regular trial pointing out the deficiency and reliability/credibility of prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain.

 Another argument advanced by the counsel for the applicant is that there is confusion with respect to the age of the victim as she stated her age as twenty-two while getting married in 2018.

The Court refuted this argument too on the basis of the case of Jarnail Singh v.  State of Punjab, (2013) 7 SCC 263 and held that the victim was a minor on the date of the incident in accordance with her school record. It’s the trial court’s case to assess the age of the victim considering whether she has disclosed herself to be a major or not.

On the contention of delayed trial regarding the duration of the applicant’s custody, the Court remarked that no order sheets have been filed by the applicant to indicate that he himself is not responsible for the delay. The contention that no order sheets have been placed on record has already been rejected by this Court earlier.

In view of the above, the present application has been rejected by the Court. [Mukesh v. State of M.P., 2020 SCC OnLine MP 1794, decided on 21-08-2020]

Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., dismissed a bail application of a woman who was involved in six murder cases.

Petitioner was accused of offences punishable under Sections 110, 120(B), 201, 302, read with Section 34 of the Penal Code, 1860 and under Section 2 read with  6(2) of the Poison Act.

For the above-stated offences, the petitioner has been arrested and is in judicial custody since 2019.

Prosecution Case

Petitioner who is also the 1st accused with an intention to kill the minor daughter of her second husband poisoned the child through food and killed the said child by administering cyanide which was procured with the aid and assistance of the accused 2 and 3.

For the ulterior intention and motive to marry Shaju Sakhariyas, who is a teacher and having a fixed and regular government salary, the 1st accused plotted a plan to do away with the little daughter of Shaju.

The child was calculated as a burden in the future by the petitioner.

After about 1.5 years of the above incident, 1st accused killed the first wife of the said Shaju by administering cyanide and thereafter married Shaju within a short span of time.

Petitioner approached this Court with a bail application.

Petitioner’s Counsel submitted that the petitioner being a woman is entitled the benefit of proviso to Section 437(1) CrPC. The said proviso states that,

‘the Court may direct that a person referred to in Clause(i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm’.

Court stated that the word ‘may’ used in proviso itself shows that its the discretion of the Court to either grant bail or not.

Hence, simply because the petitioner is a woman, she is not entitled to bail and in the present matter, allegations against the petitioner are very serious.

Court further considered the contention of the Public Prosecutor that the petitioner had attempted to commit suicide inside the jail and releasing the petitioner at this stage would be dangerous.

Bench stated that the petitioner is involved in 6 murder cases and the modus operandi of the petitioner is almost the same in all the cases.

Therefore, considering the facts and circumstances, the petitioner is not entitled to bail under Section 439 CrPC.  [Jollyamma Joseph v. State of Kerala, 2020 SCC OnLine Ker 3265, decided on 14-08-2020]

Case BriefsHigh Courts

Delhi High Court:  Suresh Kumar Kait, J. rejected the bail plea of the petitioner, accused of fraud, after finding him to be at risk of tampering evidence pending against him.

Petitioner a Managing Director and CEO of Religare Enterprises Limited, was found to be accused of fraud worth over Rs 2000 crores by means of extending fraud loans and falsifying books of accounts. He and another member (Anil Saxena) of his Company were arrested on 10th October, 2019, under the course of investigation. Anil Saxena, was further granted bail but Kavi Arora was refused. Hence, he came before the Delhi High court under under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 seeking the relief of regular bail.

Senior Advocate, Puneet Bali on behalf of the petitioner with Vibhav Jain, Aditya Soni and Mayank Datta, Advocates and the State was represented by Amit Chadha, APP for State.

The petitioner’s case based on two grounds which were, first, that he was chargesheeted on wholly false premises of misconceived facts against him and, second, that on the ground of parity, he should be awarded bail on the fact that Anil Saxena, a co-accused, was granted bail. The respondents argued that the petitioner is trying to mislead the Court and that Anil Saxena was not holding an executive position but petitioner was and by virtue of his position, petitioner was responsible.

High Court rejected the plea to grant bail to the petitioner after rejecting the claims of the petitioner. The Court decided, relying on the judgement presented by the respondents, “It is settled law that economic offences are considered to be grave offences especially when public money is involved and that the Courts have to be careful in granting bail in such cases”. It found the investigation to be at a crucial stage and since, the petitioner was at a position where he could influence prosecution witnesses and tamper evidence, the Court rejected the first claim of the petitioner. On the issue of parity, the High Court decided not to intervene in that matter, as the granting of bail to co-accused Anil Saxena was challenged before the Supreme Court and has been disposed. It found that the grant of bail to co-accused cannot be granted to petitioner as precedent/parity to the bail does not apply to other accused. Therefore, the High Court, dismissed the petition. [Kavi Arora v. State, 2020 SCC OnLine Del 768 , decided on 23-07-2020]

Case BriefsHigh Courts

Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,

“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”

Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.

Child Pornography

Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.

The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Battle against body discrimination

Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.

Petitioner added that,

“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”

A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.

A small snapshot of the written text by the petitioner:

“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”

Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.

Decision of the Bench

Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.

“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

“Whether any offence is attracted in such cases, is the question.”

In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.

Main ingredient of the above Section:

“…the child should be used in any form of medium for the purpose of sexual gratification.”

Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.

Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.

Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.

In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.

Section 67B(d) of Information Technology Act, 2000

Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.

Investigating Officer shall investigate upon such matters as stated above.

Bench in view of the above stated that,

After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.

Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.

While parting with the present order, Court added to its conclusion that,

The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.

“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted bail to the applicant accused of sexually abusing her step daughter.

Applicant sought enlargement on bail in the case registered for the offences punishable under Sections 354, 354A of the Penal Code, 1860 and Section 8, 9(n) of the Protection of Children from Sexual Offences Act, 2012.

After the demise of first husband, complainant got married to the applicant and started residing at applicant’s house with her daughters from first and second marriage.

Later, being subjected to harassment from applicant she moved out of his house to her mother’s house. In April, 2019, one of the daughters from the first marriage of the complainant told her that she was sexually abused by her step father i.e. the applicant.

Complaints under Sections 504 and 506 of Penal Code, 1860 were filed against the applicant.

Applicant’s counsel invited Court’s attention to a letter addressed by the elder daughter of the complainant from first marriage to the Senior Inspector of the Police wherein she had alleged attempts by her mother to push her in the prostitution.

Further he added that the complainant’s version was suspicious, particularly, in view of her elder daughter’s complaint to police, which was not been enquired into.

The Bench perused the relevant documents as pointed and referred, and in Court’s opinion a case was made out for releasing the applicant on bail.

That even otherwise, investigation in the case is over. Offence punishable under Sections 354, 354A and Section 12 of the POCSO Act, may extend to 5 and 3 years respectively.

Bail application was allowed. [Makrand Chandrakant Bapardekar v. State of Maharashtra, 2020 SCC OnLine Bom 779 , decided on 13-07-2020]