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.

Contentions

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”).

Issue

  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?

Observations

  • 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.

Decision

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]


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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.

Contentions

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.

Observation

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.”

Decision

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]

Case BriefsHigh Courts

Delhi High Court: Rajiv Shakhder, J. while addressing the bail application of Safoora Zargar granted the same while laying down certain conditions.

Solicitor General, Tushar Mehta, made the following statement:

“Without in any manner conceding to the factual assertions and legal submission made by the petitioner and without in any manner diluting the contents and submissions made in the reply filed thereto and without making it a precedent either in on- going investigations or any other investigation(s), purely on humanitarian ground, the prosecution agrees to the petitioner being released on regular bail…”

Thus, while stating the above, SG stated that the petitioner can be release on bail, subject to certain conditions being imposed by the Court.

Bench while granting bail laid down certain conditions:

  • She cannot leave NCT of Delhi
  • Cannot be involved in any of the activities that would hamper the ongoing investigation.
  • Once in 15 days, she has to be in touch with the investigation officer through phone.
  • Personal Bond of Rs 10, 000 to be furnished with a surety.
  • In case the petitioner is required to leave the National Capital Territory of Delhi, she will seek permission from the concerned Court.

Bench made it clear that the present order will not be cited as a precedent. [Safoora Zargar v. State, 2020 SCC OnLine Del 664 , decided on 23-06-2020]

Background

She was arrested under the Unlawful Activities Prevention Act (UAPA) for her involvement in the Delhi Riots.

Safoora Zargar, who was accused of giving inflammatory speeches, thereby inciting riots and violence in North East Delhi and was arrested and taken into custody under the provisions of the Unlawful Activities (Prevention) Act, 1967. 

Patiala House Verdict

Patiala House Court, New Delhi:  While deciding the instant bail application of student activist Safoora Zargar, who was accused of giving inflammatory speeches, thereby inciting riots and violence in North East Delhi and was arrested and taken into custody under the provisions of the Unlawful Activities (Prevention) Act, 1967 [hereinafter UAPA], Dharmendar Rana, ASJ, refused to grant her the bail. Furthermore, pointing out that although no direct violence is attributable to the applicant/ accused, still she cannot shy away from her liabilities.

The Court said that, “When you choose to play with embers, you cannot blame the wind to have carried the spark bit too far and spread the fire”. However, taking note of the accused/ applicant’s pregnancy, he requested the Jail Superintendent to provide adequate medical aid and assistance to her.


Also Read:

Patiala House Court | “When you choose to play with embers, you cannot blame the wind to have carried the spark bit too far and spread the fire”; Student activist Safoora Zargar denied bail in Chand Bagh Riots case

Case BriefsHigh Courts

“People from the past, have a tendency to walk back into present and run over the future.”

Orissa High Court: S.K. Panigrahi, J., while addressing a bail application observed that,

Tik Tok Mobile App which often demonstrates a degrading culture and encourage pornography besides causing pedophiles and explicit disturbing content, is required to be properly regulated so as to save the teens from its negative impact.

In the present petition and application has been filed under Section 439 of CrPC to seek bail. She is an accused for an offence under Sections 306 and 34 of Penal Code, 1860.

Background

Allegation against the accused/petitioner is that she along with the co- accused have inflicted direct and indirect mental torture on the deceased (Padmalochan Barik) which resulted in the commission of suicide by the deceased.

With the statements recorded it was revealed that petitioner was alleged to have been in a love relationship with the co-accused before she got married with the deceased.

Co-accused had forwarded some of the intimate Tik Tok videos with petitioner to the deceased and the same were alleged to have been streamed on social media as well.

The underpinnings of familial shame made deceased suffer a lot internally in the form of tremendous mental pressure which invited a dangerous haste in ending his life by hanging himself.

Abetment of Suicide

From the investigation it was clear that the co-accused was responsible for the abetment of suicide.

Petitioner’s Counsel L.N. Patel

It was submitted that petitioner had no role in the abetment of suicide of her husband and the same has not yet been established. Hence she may be granted bail.

Decision 

On perusal of the above, bench stated that it is a prima facie view that the incident might have been perceived to be just a streaming of Tik Tok videos of the deceased’s wife and her former beau but it was morally and legally heinous as the same led to an ugly consequence.

Petitioner being wife should have the deceased’s emotional safety, instead she became the cause of his emotional insecurity.

Offence of abetment to suicide under Section 306 of IPC is endowed with twin essential ingredients:(i)a person commits suicide (ii) such suicide was abetted by the accused. The offence involves a mental process of instigating a person of intentionally aiding a person in doing of a thing.

In Court’s opinion, the Tik Tok videos had escaped the investigation officer’s attention.

Tik Tok Videos 

Bench stated that the above-mentioned Tik Tok videos became the cause for tragic end of an innocent life. Transmitting Tik Tok videos with offensive content to harass victims are on prowl and are gradually on the rise.

Of late, Cyber bullying activity like the instant case, has reared its ugly head and swept away so many innocent lives through many of its ugly manifestations.

With regard to Information Technology Act, what the Court said?

Information Technology Act, 2000 does impose an obligation upon such companies to take down content and exercise due diligence before uploading any content, but India lacks a specialized law to address the crime like cyber bullying.

In the present matter, Court stated that,

Further digging up, the instant case might bring some surprises, but at the moment the role of the co-accused seems to be quite apparent in terms of preparing the Tik Tok videos having some inappropriate content and sending the same to the deceased. This aspect of the taint cannot be properly established sans a befitting trial process.

Even a positive role of the petitioner in the entire episode cannot be ruled out, however, at the moment, invoking Section 306 would be preposterous. Hence, without more ado petitioner is granted bail. [Shibani Barik v. State of Odisha, 2020 SCC OnLine Ori 425, decided on 28-05-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a bail application of a person alleged to have been involved in burning the shop during the Delhi Riots, stated that:

“..ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two.”

What transpired the bail application?

Present bail application has been filed by a person who has been taken into custody under Sections 147, 148, 149, 427 and 436 of Penal Code, 1860, though he sought bail on the grounds that neither has he been named in the FIR nor is there any allegation in the FIR nor any other material collected during investigation which would have identified him as one of the perpetrators in the offences alleged.

Supplementary Statement of Complainant

The first statement of the complainant has not been filed on record. Though APP submitted that the same has been extracted in-extenso in the FIR itself.

Senior Counsel, Rebecca John — for the applicant

Submissions:

  • Complainant’s supplementary statement on which the State sought to rely did not in any manner identify or connect the applicant to the alleged offences.
  • No test identification parade was conducted of the applicant to get the complainant to identify him
  • Applicant is a resides 15-minutes away from the complainant’s shop; and therefore the applicant’s presence in the vicinity of the shop cannot be assumed, unless there is evidence to that effect, which there isn’t.

Another point that is to be taken note of is that the co-accused with the applicant has already been admitted to bail by Additional Sessions Judge.

APP, Hirein Sharma for the State — Opposing Bail

While opposing the bail he submitted that applicant had been identified by complainant; Constable Vikas and the CCTV footage of Rajdhani School also identifies the applicant — these hold a sufficient basis to hold him in judicial custody. Overall there were around 250 to 300 rioters in the area at the relevant time.

Complainant’s supplementary statement

Complainant only submitted that in the video and photos shown to him in the police officer’s cellphone, he had identified 2 persons who set fire to his shop and, if confronted, he will be able to identify other persons who were present.

According to the State’s status report dated 23rd may, 2020, no footage of the incident is available and the cameras installed by PWD in various parts of the area are still awaited.

Ct. Vikas in his statement submitted two names including the applicant’s name.

It is extremely important to note however, that in the complainant’s statement upon which the FIR was recorded, the complainant says that when the rioters vandalised his shop, he tele- phoned the police but the police telephones were going busy ; and that therefore he ran away to save his life. In the teeth of this statement of the complainant that there was no police help on hand, Ct. Vikas claims that he was present at the scene of the offence and in- ter-alia saw the applicant commit the offences.

Now another point with regard to CCTV footage that is to be noted is that the Rajdhani School and applicant’s shop are at a 400 meters distance with a 5 minute walk but on 2 different sides of a turn in the road. Therefore, it appears incredible that camera/s installed in the school would be able to ‘see’ the complainant’s shop.

Additional Status report of the State says that:

“…. Granting of bail at this early stage may send an ad- verse message in the society and such crimes should not be allowed to happen in the national capital. ….”.

(Emphasis supplied)

Decision of the Bench

“Prison is primarily for punishing convicts; not fo detaining undertrials in order to send any ‘message’ to society.”

Further the Court observed that remit of the Court is to dispense justice in accordance with law, not to send messages to society.

It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system.

In regard to the present matter, Court cannot but notice that the offences under Sections 147/148/149 IPC arise in the context of an ‘unlawful assembly’, which Section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision ; while in the present case only 2 persons appear to have been charged.

On perusal of the above, Court admits the applicant to regular bail on following conditions:

  • Rs 50,000 Personal Bond; 2 sureties of the like amount from blood-relatives
  • Cannot leave NCR without Court’s permission
  • Shall present himself on every alternate Wednesday between 11 am and 11.30 am before the investigation officer.
  • Passport to be surrendered
  • applicant shall not contact nor visit nor threaten nor offer any inducement to the first informant/complainant or any of the prosecution witnesses. The applicant shall not tamper with evidence.

Court added to its observation that,

In this peculiar circumstance, this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons.

In view of the above discussion, bail application is allowed. [Firoz Khan v. State (NCT of Delhi), Bail Application No. 945 of 2020, decided on 29-05-2020]

Case BriefsCOVID 19High Courts

Bombay High Court:  Bharati Dangre, J., addressed a complaint wherein a verbal altercation took place for the reason that applicant was asked to wear a mask.

Complainant alleged that while he was on duty of bandobast for prevention of CoronaVirus, the applicant on being asked to wear the mask entered into a verbal altercation.

The complaint filed referred to the above-stated altercation in detail and alleged that he was instigated in discharge of his official duty by the applicant and as far as the assault was concerned, complaint stated that he placed his hand on his shoulder.

Offence had been registered under Sections 323, 353 and 506 of Penal Code, 1860 against the applicant and relevant provisions of Disaster Management Act, 2005.

Bench observed that on prima facie what emerges is a verbal altercation between complainant and applicant while latter was discharging his duty. No ingredients of Sections 323 and 353 of Penal Code, 1860 are made out.

Thus in view of the above, applicant was granted ad-interim bail. Court also directed the applicant to not directly or indirectly make any inducement, threat or promise to any persons acquainted with facts of the case to dissuade him from disclosing the facts to Court or nay Police Officer.  [Shekhar v. State of Maharashtra, LD VC Anticipatory Bail Application No. 37 of 2020, decided on 05-05-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Rajnish Bhatnagar, J. while conducting a hearing through Video Conferencing, addressed a very pertinent matter with regard to bail of petitioner alleged for assaulting two women resident doctors of Safdarjung Hospital after accusing them of spreading COVID 19.

In the present matter, FIR was registered under Sections 354, 341, 323, 506 and 509 of Penal Code, 1860 against the petitioner for the above-stated reasons. Incident that took place as stated in the FIR was that complainant was working as Junior Resident (Casualty) at Safdarjung Hospital, she along with her sister went to a fruit shop to bu fruits wherein a person standing started speaking about social distancing and remarked that doctors like them were spreading infection in residential areas.

Further complainant told the petitioner that she knew importance of social distancing but the petitioner got abusive and threatened to get a case registered against them. It is alleged that when petitioner was about to leave complainant assaulted them and touched in an inappropriate manner.

It was contended by the petitioner that he was only concerned about the social distancing being maintained between the people looking into threats of coronavirus, he added he was being falsely implicated . Further it was argued that all the sections except Section 354 IPC were bailable.

APP while opposing the bail application submitted that the allegations were grave and serious in nature and petitioner rather than being thankful to the doctors attacked and molested them.

Bench stated that as the country is passing through a very difficult phase and the doctors are rendering women service to the nation, petitioner being an educated man should have been respectful to the doctors rather than abusing and threatening them.

In Court’s opinion, no useful purpose would have been served by keeping the petitioner in J.C and overcrowding Tihar Jail, thus he is admitted to bail on furnishing a bail bond.

In view of the above, bail application stands disposed of. [Sanjeev Sharma v. State of NCT of Delhi, Bail Appl. No. 774 of 2020, decided on 15-04-2020]

Case BriefsCOVID 19High Courts

Rajasthan High Court: A.M. Badar, J. while addressing a regular bail application under Section 439 of Criminal Procedure Code, 1973, held that,

“Entire Law Enforcing Machinery is focusing on implementation of the Lockdown throughout the State by virtually remaining on the field for 24 hours.

This is being done for saving the entire nation from the pandemic.

In such a situation, it is not advisable to insist the State to depute Police Officers for instructing the Prosecutors by undertaking travel to the office of the Public Prosecutor and attending the Court by leaving their territorial jurisdiction where their presence in such a situation is must.”

While hearing an application for bail the Bench made certain observations, that,

Maharashtra is the most affected State of India where there is largest number of patients of COVID-19. Entire Western Maharashtra, which is under territorial jurisdiction of the Principal Seat of this Court, is worstly suffering from this pandemic.

The instant bail application was filed under the extremely urgent category.

For the above, Court stated that,

Unless extremely urgent situation for entertaining regular bail application is pointed out, mere fact that the accused is undergoing either pre-trial or post-trial detention, does not warrant entertainment of the regular bail application on the occasion of Lockdown declared by the State.

Hence with regarding to entertaining the case, Court stated that,

“case in hand is not reflecting any such extremely urgent situation warranting entertainment of the regular bail application.”

Court added that, Law Enforcing Agencies have to frequently deal with the problem of Law and Order, as several individuals or group of individuals are turning violent and disrupting the work of sanitisation as well as providing medical aid to the victims.

Incidents of assault on Nurses, Doctors, Para Medical staff and Police staff involved in combating the menace of COVID-19.

In the above view, presence of 100 percent members of Police Force on the field, rather than in the Court, is absolutely essential for a limited period of Lockdown.

In view of the lockdown, so far as Mumbai is concerned, it is reported that several areas are also sealed. As such, even if a prisoner is released on bail, it may not be possible for him to reach to his destination without risking his life due to outbreak of COVID-19.

Thus, in the present situation, the prisoner by remaining inside till completion of lockout period will help and save the life of many others. [Sopan Ramesh Lanjekar v. State of Maharashtra, 2020 SCC OnLine Bom 468, decided on 03-04-2020]

Case BriefsCOVID 19High Courts

Gauhati High Court: Ajai Lamba, CJ. while considering a bail application of Akhil Gogoi who was in custody on the allegations of conspiring and committing acts with intent to facilitate design to wage war against the State by means of using passage of Citizenship Amendment bill in Parliament as a cause, held that,

“no actionable evidence or material has been pointed out which would conclude that applicant and other accused waged war against the State.

Present proceedings took place in a virtual court in view of the COVID-19 outbreak.

Akhil Gogoi had filed the present application for bail under Section 439 CrPC, 1973 under Section 120(B)/122/123/143/147/148/149/150/152/ 153/326/333/353 of Penal Code, 1860.

It has been alleged that accused persons used Citizenship Amendment Bill as an opportunity to abet, incite unlawful assemblies with deadly weapons at various placed and abetted extreme violence.

They all connived, engaged and promoted the engagement of persons to become members of unlawful assembly at various placed in Assam. It was a full-fledged conspiracy secretly hatched by the accused along with some other unknown persons.

Adding to the above allegations, it has been alleged that in pursuance to unlawful common abject to assault and voluntarily cause grievous hurt to public servants by deadly weapons and inflammable substances likely to cause death, conspiracy was hatched.

Accused himself admitted that he took part in the protest rallies. It has been brought out that by taking part in these rallies he instigated common citizens, which is an act of criminal design to wage war against the State.

People were provoked which created enmity between various communities on the ground of religion, race, residence, etc., which is prejudicial to maintenance of harmony — waging war against the State.

High Court

Court noted that attention of the Court towards any actionable evidence or material that would indicate waging of war against the State has not be drawn.

Adding to the above, bench asked the question as to under what circumstance Investigating Agency concluded that such protest against the Bill would constitute waging war against the State?

To above position, Court stated that nothing has been pointed with regard to such protests to conclude as an attempt by the applicant and other accused to wage war against the State.

Bench held that such actions and incidents had taken place virtually all over the country and in view of that further custody of applicant shall not serve any purpose in law or any purpose of investigation.

Thus, applicant be released on bail to the satisfaction of Chief Judicial Magistrate and in case at any point during investigation or trial intimidates or influences or approaches any witness of the incidents, prosecution would be at liberty to seek cancellation of bail. [Akhil Gogoi v. State of Assam,  2020 SCC OnLine Gau 1092 , decided on 26-03-2020]