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]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Suvra Ghosh, JJ., while denouncing the conduct of lawyers who had called a strike, directed and that prompt steps shall be taken against the offenders obstructing Judges, police personnel or public servants from discharging their dues.

The Court was considering an application for bail under Section 439 CrPC. The Court was informed that due to lawyer’s strike, police personnel were unable to enter the Court premises and produce the original case diary.

The High Court, in its order, cited observations of the Supreme Court in:

(i) Harish Uppal v. Union of India, (2003) 2 SCC 45, wherein the Constitution Bench has held that lawyers have no right to go on a strike or call for bandh or even a token strike. Only in rarest of rare cases where the dignity, integrity and independence of the Bar and/or the bench are at stake and a protest abstention from work not more than a day may be entertained and to do so, the President of the Bar must consult and seeks permission from the Chief Justice or the District Judge in the matter.

(ii) Hussain v. Union of India, (2017) 5 SCC 702, wherein the Court recognised that frequent strikes, abstention from work by lawyers or frequent suspension of court work after condolence references are one of the prime reasons for the delay in disposal of criminal cases.

(iii) Krishankant Tamrakar v. State of M.P., (2018) 17 SCC 27, wherein it was reiterated that every resolution to strike and abstain from work is per se contempt and necessary mechanism to enforce the mandate of the Court needs to be put in place till proper legislation to remedy the situation is enacted.

In the instant case, noted the High Court, the striking lawyers not only brought the administration of justice to a standstill but also, in a flagrant manner, obstructed the police personnel from discharging their official duty.

The Court directed the Superintendent of Police, Paschim Medinipur, to enquire into the matter and take necessary steps so that police personnel, litigants, lawyers and all stakeholders in the administration of justice are permitted to enter the Court premises and discharge their duties. It was further ordered that any obstruction to Judges, police personnel or other public servants in that regard would amount to cognizable offence and prompt steps shall be taken against the offences.

The matter is now listed to be heard on 08-01-2020, on which date, the Superintendent of Police shall submit his report before the Court. [Aijul Gharami v. State of W.B., 2019 SCC OnLine Cal 5529, decided on 23-12-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J., allowed a bail application provided the appellant would plant five saplings (either fruit-bearing trees or Neem/Peepal) along with tree guards or has to make arrangement for fencing for protection of the trees.

The appellant had filed a criminal appeal under Section 14-A(2) of the SC and ST (Prevention of Atrocities) Act, 1989, which was dismissed by the trial Court. He was arrested for offences punishable under Sections 376, 294, 506, 34 of IPC and under SC/ST (Prevention of Atrocities) Act. The respondent submitted that the appellant enjoyed physical proximity with her on the pretext of marriage. The appellant argued that a false case was registered against him and the act was consensual in nature. Further, he had been confined in the prison for a substantial period of time and would amount to pre-trial detention. He asked for a bail submitting that he would not be a source of embarrassment or harassment complainant party in any manner. He further undertook to perform community service.

The Court considered the prayer made by the appellant and allowed the appeal by directing him to do the following:

  1. he must comply with all the terms and conditions of the bond executed by him;
  2. he must cooperate in the investigation/trial;
  3. he must not move in the vicinity of the complainant;
  4. he shouldn’t leave India without permission of the trial Court/Investigating Officer.

He was further directed to plant five saplings (either fruit-bearing trees or Neem/Peepal) along with tree guards or has to make arrangement for fencing for protection of the trees because it is the duty of the appellant not only to plant the saplings but also to nurture them. For ensuring the compliance, he was asked to submit all the photographs of the plantation of trees/ saplings before the concerned trial Court along with a report within 30 days from the date of release of the appellant.

The above direction was made by the Court as a test case to address “the Anatomy of Violence and Evil by process of Creation and a step towards Alignment with Nature. The natural instinct of compassion, service, love and mercy needs to be rekindled for human existence as they are innately engrained attributes of human existence.”[Jitendra Goswami v. State of M.P., 2019 SCC OnLine MP 2033, decided on 16-08-2019]

Case BriefsHigh Courts

Allahabad High Court: Rekha Dikshit, J. while disposing of this petition directed the lower court to consider the bail application (if moved by the petitioners) in the light of the judgment passed by the seven Judges’ Bench of this Court in Amarawati v. State of U.P., 2004 SCC OnLine All 1112, as approved by the Supreme Court in Lal Kamlendra Pratap Singh v. State of U.P., (2009) 4 SCC 437.

In the instant case, the petition was filed to quash the summoning order by 2nd Additional Sessions Judge/Special Judge, SC/ST (Prevention of Atrocities) Act, Raebareli in Complaint Case No. 73 of 2018 of Mahavir v. Devendra Bahadur Singh.

Counsel for the Petitioners, Vinod Kumar Pandey submitted that the petitioners have not committed any offence and have been falsely implicated and moreover there are no independent witnesses to support the case at hand. It was further submitted that the petitioners were willing to surrender and asked for protection.

Counsel for the Respondent, the AGA submitted that the summoning order was passed on the basis of the evidence recorded under Sections 200 and 202 of the Code of Criminal Procedure.

The Court after analyzing the submissions of the parties cited some relevant cases helpful in understanding the matter at hand.

In Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753, it was held that Section 203 CrPC does not entail that a regular trial for adjudging the truth or otherwise by the accusation made against the accused should take place at this stage.

In Chandra Deo Singh v. Prokash Chandra Bose, 1964 (1) SCR 693 was held that at the stage of enquiry under Section 202 CrPC, the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction.

In Nagwwa v. Veeranna Shivalingappa, Konjalgi, 1976 (1) ACC 225 (S.C.) while considering the scope of enquiry under Section 202 CrPC, the Supreme Court held that the order of issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value makes absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.

In S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241, the Supreme Court held that when the Magistrate has to pass an order under Section 203 CrPC searching sufficient ground to convict is not necessary.

The Court observed that in the instant case, the Magistrate after considering the evidence recorded under Sections 200 and 202 CrPC, concluded that the applicants have, prima facie, committed offence and in these circumstances, it cannot be held that the Magistrate has committed any illegality or impropriety in passing the impugned order.

The Court held that there is no substantial ground to justify interference by this Court under Section 482 CrPC Though, the applicants have a right to be discharged under Sections 239,227,228 and 245 CrPC. [Devendra Bahadur Singh v. State of U.P., 2019 SCC OnLine All 2743, decided on 25-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.A. Dharmadhikari, J. allowed the bail application on the ground that trial was not going to be over in the near future.

A first bail application under Section 439 of the Code of Criminal Procedure, 1973 was filed by the applicant. The applicant was arrested in connection with the offence punishable under Section 34(2) of the M.P. Excise Act. The allegation was that the 54 bulk liters of the country liquors were recovered from the possession of the applicant.

Arvind Sharma, counsel for the applicant submitted that the applicant was falsely implicated in this matter and was in custody since 06-05-2019. It was further submitted that the trial was not going to be finished in the near future. The counsel also submitted that as the applicant was a permanent resident of the Gwalior thus there was no likelihood that he will abscond if released on bail. Thus, prayed for the grant of the bail.

Sanjeev Mishra, Public Prosecutor opposed the application and prayed for the rejection of the grant of the bail.

The Court opined that prolonged pre-trial detention is an anathema to the concept of liberty, this Court is inclined to extend the benefit of bail to the applicant. Thus the bail was granted with the direction to furnish a personal bond.[Shyam Sharma v. State of M.P., 2019 SCC OnLine MP 1606, decided on 15-07-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. allowed an appeal against an order of the lower courts whereby appellant’s bail application had been rejected.

In the instant case, one of the accused had received some money from his cousins and handed over the same to the appellants so as to pass on the same to the militants for continuing their militant activities. The accused were charged under the Unlawful Activities (Prevention) Act, 1967 (the Act). The appellants applied for bail in the Trial Court which was disallowed. Thereon, they preferred an application for grant of bail before the Court of learned Additional Sessions Judge, Srinagar, which too was dismissed holding, ” the very seriousness of the offence alleged is sufficient ground to reasonably believe that the accused may misuse his liberty by interference with the evidence that may be available in the case, if possible or by absconding if tempering is not possible.”

The learned counsel for the respondents, Javaid Iqbal, challenged the maintainability of this appeal while relying on Sections 21 and 22 of the National Investigation Agency Act, 2008 read with Section 43-D of the Act. Whereas, M. A. Qayoom, the learned counsel for the appellants, argued that both the sections should be read independently of each other. He further argued that the learned trial Judge and the Addl. Sessions Judge had not examined the matter in its proper perspective and had declined bail to the appellants on flimsy grounds. He contended that in the instant case the appellants completed 90 days in police custody without the ‘challan’ being filed against them, on that ground the appellants were entitled to bail after the expiry of period of 90 days relying on Section 167(2) of CrPC as the police had to complete the investigation within 90 days on failure of which appellants were entitled to bail. 

The Court relied on the judgment of the Apex Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, and held, “the learned Additional Sessions Judge was required to examine the contention raised on behalf of the appellants herein for grant of bail by applicability of the default clause of Section 43 (D) of the Unlawful Activities (Prevention) Act 1967 which he having not done.” The Court observed that, “Since the investigating agency has omitted to file final report in terms of Section 173 Cr PC within the time prescribed under Section 167(2) of CrPC, the appellants whose appeal is now treated as petition for bail are held entitled to default bail.” 

It was held that “the bar created under Section 43 of the Act would not come in the way of petitioner to seek enforcement of default bail, as their further detention is not permissible.” Thus, the Court admitted the bail of the appellants with the condition of furnishing security to the tune of Rs 50,000/- with one surety in the like amount and not to leave the State without Court’s permission. [Abdul Rehman Mir v. State of J&K, 2019 SCC OnLine J&K 420, decided on 08-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: N.S. Dhanik, J. contemplated a criminal application for quashing of the FIR filed against the applicant-husband by his wife for alleged cruelty and criminal intimidation under the relevant sections of IPC.

The respondent had filed an FIR against the applicant and his relatives for harassing and treating her with cruelty for an alleged dowry to an extent that the respondent had to leave her matrimonial house and reside somewhere else. On the impugned FIR the police conducted an investigation and thereafter filed a charge-sheet against the applicant. Applicant was duly summoned by the Magistrate. Charges against the applicant were under Sections 323, 498-A, 504, 506 IPC.

Vikas Kumar Guglani, learned counsel for the applicant submitted that it was a matrimonial dispute and was a private affair between the husband and wife but due to certain misunderstandings the FIR was registered, hence for the betterment of the institution of marriage the Court must quash the proceedings against the applicant.

The Court thus stated that it was settled law that the power under Section 482 CrPC should be exercised very sparingly and this power should not be exercised to stifle the legitimate trial and in cases where facts are hazy. Court doesn’t find reason to interfere in the proceedings against the applicant. However, it directed that if the accused-applicant surrendered him before the Magistrate concerned, his bail application was to be considered and decided as expeditiously as possible.[Ramesh Chandra Joshi v. State of Uttarakhand, 2019 SCC OnLine Utt 505, decided on 17-06-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. allowed anticipatory bail application of a person accused of posting obscene remarks on the Facebook page of a woman who was a member of a political party.

Applicant herein and a male member of CPI(M) party were part of a television debate on the correctness or otherwise of Supreme Court’s judgment on the right of women devotees of menstrual age to enter and worship in the Sabarimala Temple (Indian Young Lawyers Assn. v. Union of India, 2018 SCC OnLine SC 1690) wherein the member of CPI(M) strongly took a stand in favour of the said judgment. Being of the opinion that traditions must be followed and women must not be permitted to enter Sabarimala, applicant was agitated by the stand taken by CPI(M)’s member and he made certain posts on Facebook page of the said member’s wife [who is also a member of CPI-M, a media person and also an Assistant Professor of Law] describing her husband in highly abusive language and also made disparaging remarks regarding faith and religion. He also sent obscene messages to the lady with the intention to insult her womanhood and reputation and to cause her mental distress. The lady filed a case against him under Section 509 of the Penal Code, 1860, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act, 2011. Hence, the present application for pre-arrest bail.

Learned counsel appearing for the applicant, Mr. Siraj Karoly, submitted that offences under Section 509 IPC and Section 120(o) of the Kerala Police Act are bailable offences. Further, the nature of the factual allegations raised in FIR did not disclose an offence under Section 67 of IT Act. Whereas, the learned Public Prosecutor appearing on behalf of the State contended that the impugned publication on complainant’s Facebook page would be covered under Section 67 of IT Act.

The Court observed that even if the words are extremely unparliamentary, unprintable and abusive in nature, so long as the words in question are not one capable of arousing sexual thoughts in the minds of the hearers and does not involve lascivious elements arousing sexual thoughts or feelings or the words do not have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, it cannot be brought within the broad contours of the penal provisions as contained in Sections 294 and 292 of the Penal Code corresponding to Section 67 of the Information Technology Act, 2000.

The Court noted that presumably, the accused-applicant had made such comments as he was a Hindu and complainant’s husband was a Muslim. It also expressed lament at the increasing intolerance, for views/ opinions of other people, in the society and remarked that perhaps the same was a result of increasing addictive use of social media.

However, confining itself to the application at hand, it held that custodial interrogation of the applicant was not warranted in the facts and circumstances of the case, and thus granted anticipatory bail to the applicant.[Sreekumar V. v. State of Kerala, 2019 SCC OnLine Ker 1305, Order dated 03-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of N. Anil Kumar, J. allowed the bail application of a person accused of illegal possession of a psychotropic substance, on the ground that the quantity possessed by him was not ‘commercial quantity’ in terms of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Petitioner herein was accused of an offence under Section 22(b) of the NDPS Act. The prosecution allegation was that the petitioner was found in possession of 50 Nitrazepam tablets in contravention of the NDPS Act and Rules framed thereunder. He was arrested and produced before the Court on 12-03-2019 and had been in judicial custody since then.

Learned Public Prosecutor Mr D. Chandrasenan submitted that 50 Nitrazepam tablets, allegedly in possession of the petitioner, is not a commercial quantity as defined under the Act.

The Court noted that the commercial quantity of Nitrazepam, as prescribed under the table in NDPS Act at serial number 221 is 500 grams. There was nothing on record to show that the petitioner had any other criminal antecedents. Thus, it was opined that further detention of petitioner in judicial custody for investigation purpose was not required.

In view of the above, the petition was allowed, directing him to be released on bail on executing a bond of Rs 50,000.[Ashkar v. State of Kerala, 2019 SCC OnLine Ker 1406, Order dated 03-05-2019]

Case BriefsHigh Courts

Madras High Court: G.K. Ilanthiraiyan, J., allowed a criminal original petition filed by petitioner accused under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The petition was filed for a direction to the Principal District and Sessions Judge, Villupuram to consider petitioner’s bail petition on the same day of his surrender. The petitioner who wanted to surrender and apply for bail in connection with a criminal case registered under the SC/ST Act was represented by C. Prabakaran. While on the other hand, C. Raghavan, Government Advocate appeared for the State.

The High Court while allowing the petition, observed, “In view of the specific bar under Section 18 of SC/ST Act and also taking into consideration of the possibility of misusing the pious intention of the Parliament against innocent persons, there shall be a direction to the Principal District and Sessions Judge to consider the petitioner’s bail application, preferably on the same day of their surrender and pass appropriate orders in accordance with law after affording due opportunity to the victim under Section 15(a) of the SC/ST Act”. The petition was disposed of in the terms above. [Sethu v. State, 2019 SCC OnLine Mad 658, dated 04-03-2019]