Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Instant application had been filed under Section 438 CrPC for grant of anticipatory bail in respect of FIR under Sections 420, 406 and 34 Penal Code, 1860.

Factual Background


An FIR was lodged by an authorized representative of M/s Vaishali Infratech (P) Ltd. on the allegations of cheating and misappropriation. The applicant, through his company, is a builder and has a project, namely ‘Rudra Palace Heights’, in which the complainant/Company booked 11 flats.

Large sums of money had also been paid for the flats amounting to Rs 1,33,87,500 towards 75% of the consideration. Applicant was the promoter and director of M/s Rudra Buildwell (P) Limited. There were others also named as accused in the FIR.

It was stated that despite the fact that the flats were to be fully constructed and handed over in 2018, till date, no flat had been handed over to the complainant, rather the complainant came across a Charge intimation to the Registrar of Companies filed by the applicant, informing of the sale of the very same 11 flats to 11 other persons.

Hence, the allegation that the applicant had cheated the complainant.

Analysis, Law and Decision


“While it is no doubt true that the case arising out of contracts would have civil and criminal contours, but it is not that if no civil case was filed it would detract from the complaint made to the police nor would the opposite hold true.”

High Court expressed that, custodial interrogation is more effective to question a suspect.

The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals.

Further, the Bench stated while interrogation of a suspect of one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.

High Court noted that the views of the Supreme Court explained in numerous judgments have been incorporated in the amended Criminal Procedure Code, particularly with the introduction of Section 41A CrPC and amendments to Section 41A CrPC.

Thus, even for arresting any person in connection with an offence punishable with imprisonment of upto 7 years, the police have to first issue a notice and arrest only when there is no cooperation from the noticee/suspect. There are, of course, other conditions in which the police officer may arrest, as provided for under Section 41(1)(a) & (b) CrPC.

It had been held in Shri Gurbaksh Singh Sibbia v.  State of Punjab, (1980) 2 SCC 565, as well as reiterated in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 that the power to release on anticipatory bail is extraordinary in character, it would “not justify the conclusion that the power must be exercised in exceptional cases only”.

High Court opined that, the present matter is the one wherein investigations would be hampered without custodial interrogation.

The Bench observed that, the powers of the police for conducting a holistic and complete investigation in the matter, including into alleged resale and backdating/uploading of documents on the ROC website, are wide, assuming that the applicant has not revealed to them the true details.

The disposal of an anticipatory bail application does not require a trial, even a mini trial, on the allegations and defence.

fundamental question would only be whether or not the liberty of the applicant ought to be curtailed by refusal of anticipatory bail or whether the interest of justice would still be served if he is granted the benefit.  

High Court held that the applicant be released on bail and shall be bound by the following conditions:

  • Applicant shall join the investigation as and when required to do so by the investigating officer and shall cooperate with the investigating agencies and make a disclosure of complete details of the 11 persons relating to whom the resale had allegedly occurred.
  • The applicant shall not leave NCR without orders of the Trial Court;
  • Applicant shall furnish his mobile phone/landline number and residential address as well as that of his surety to the I.O./SHO concerned and both shall keep their mobile/landline phones operational at all times during this period and in the event of any change of the same, will immediately inform the same to the I.O./SHO;
  • Applicant shall drop a pin location on Google Maps so that the location of the applicant is available to the Investigating Officer;
  • Applicant shall not directly or indirectly contact the complainant or any other witnesses and any attempt shall be deemed to be an attempt to influence them;
  • SHO is directed to accept the bail bond only after verifying the address of the applicant.

In view of the above, the bail application stood disposed of. [Mukesh Khurana v. State of NCT Delhi, 2022 SCC OnLine Del 1032, decided on 13-4-2022]


Advocates before the Court:

For the applicant:

Ms. Rebecca John, Senior Advocate with Mr. Vishal Gosain, Ms. Adya, Ms Megha Bahl, Ms. Sahiba Singh and Mr. Yash Chaturvedi, Advocates

For the Respondent:

Mr. G.M. Farooqui, APP for respondent/State with SI Yashpal

Mr. Aman Lekhi, Senior Advocate, Mr. Mohit Mathur, Senior Advocate with Mr. Mudit Jain, Advocates for complainant

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., on noting that the husband and wife cannot live together and there were constant quarrels between them, granted bail to the husband who was accused under the provisions of Dowry Prohibition Act and Penal Code, 1860.

The Bench remarked that,

Applicant’s custody will not really solve the issue. Even for the purpose of investigation his custodial interrogation is not necessary. He can be asked to co-operate with the investigating agency.

The applicant sought anticipatory bail for the offences registered under Sections 498-A, 323, 504, 406, 506(2) of the Penal Code, 1860 and under Sections 3 and 4 of the Dowry Prohibition Act.

Background

The applicant’s wife had lodged an FIR, wherein she submitted that the applicant’s family wanted gold coins each for their family members, but the informant and her family refused to give those. After the marriage, the in-laws uses to talk about their demands and used to cause harassment to the informant. Her sister-in-law and father-in-law used to instigate the applicant and thereafter the applicant used to insult and humiliate the informant.

There are allegations that the Applicant had inflicted some wounds on himself to show that the informant had assaulted him.

Due to the above, the informant left and started residing with her sister. Later the applicant demanded to see his child and made the false allegation to the police.

In view of the above said, the FIR was lodged.

Analysis, Law and Discussion

High noted that the FIR shows how the applicant and the informant just cannot live together. There were constant quarrels between them.

There are complaints filed by the Applicant and the informant against each other. 

Therefore, Bench held that the applicant’s custody would not really solve the issue as there are allegations and counter-allegations, which can only be decided during the trial.

Order

  • Applicant to be released on bail on his furnishing PR bond in the sum of Rs 30,000 with one or two sureties in the like amount.
  • Applicant shall attend the Police Station concerned as and when called and shall cooperate with the investigation.
  • Application stood disposed of.

[Shivek Ramesh Dhar v. State of Maharashtra, 2022 SCC OnLine Bom 220, decided on 14-1-2022]


Advocates before the Court:

Resham I. Sahni, Advocate for the applicant

A.A. Takalkar, APP for the State/Respondent

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., granted bail to a person accused of kidnapping a minor, which eventually in view of the minor’s statement was a case of her running away on her own accord and living a happy married life with him.

The instant petition was filed to seek bail in FIR registered for offences under Sections 363, 366, 376 of Penal Code, 1860, Sections 4 and 6 of the POCSO Act read with Section 10 of the Prohibition of Child Marriage Act.

Factual Background

It was stated that a missing complaint was registered in 2017 where the complaint was given by the father of the victim that his minor daughter was kidnapped, and she had been missing and last seen details were given in the complaint.

Further, the investigation was completed and did not result in a fruitful outcome.

Later in the year 2020, the victim telephoned her mother stating that she had delivered a baby boy and he was 3 months old and she revealed that she had been married for the last four years.

The said information was passed on to the Police, who landed in Madhya Pradesh to trace the young girl/ victim. The police tracked down and recovered the young girl. When she was being taken for conducting a medical examination, the same was refused. She was brought back to Delhi and her statement was recorded under Section 161 CrPC, thereafter under 164 CrPC.

In the said statement she stated that she ran away from home and met the petitioner and got married to him and now she has a 3-year-old daughter and a 3-month-old infant.

Police after noting the school records found the date of birth of the victim to be 2-3-2001, and therefore amended the charges against the petitioner and added offences under Sections 4 and 6 of the POCSO Act and Section 10 of the Child Marriages Act.

Petitioner was arrested and his bail application was rejected stating that he had kidnapped the then minor victim, and repeatedly had sexual intercourse with her which resulted in the victim getting pregnant as a minor. The said offence was a serious one that involved the exploitation of the minor.

Analysis, Law and Decision

Parameters for consideration of enlarging a person on bail are as follows:

  • Nature of accusation and severity of punishment in case of conviction
  • Person concerned shall not tamper with evidence or influence witnesses
  • Person should not flee justice
  • Person shall be available as and when the trial requires into to do so
  • Prima Facie satisfaction of the court in support of the charge.

Victim’s statement recorded by the Magistrate indicated that she was peacefully living with the petitioner and their two children and was not kidnapped by the petitioner, infact ran away on her own accord.

Court prima facie was satisfied that the petitioner and the victim were happily cohabiting with each other and raising their family.

No custodial interrogation of the petitioner was required, infact keeping him in custody would only drive the prosecutrix and her two children to starvation.

“Petitioner and the victim are happily married, and they have two children and have been raising a family together is a ground enough to release the petitioner on bail.”

Petitioner was granted bail in view of certain bail conditions. [Ram Sevak v. State,  2021 SCC OnLine Del 5195, decided on 3-12-2021]


Advocates before the Court:

For the Petitioner:

Mohammed Shamikh, Advocate

For the Respondent:

Meenakshi Dahiya, APP for the State with W/SI Pooja, P.S. Sonia Vihar

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected a bail application which had been filed by accused petitioner for granting pre arrest bail to him under Section 438, CrPC. The petitioner had been booked for offence punishable under Section 409, IPC. He was alleged to have made fictitious salary bills to the tune of Rs 5,61,302/- in his department and drawing the same from government treasury he had got the entire amount of money transferred to his own bank account.

After the detection of the offence, the Deputy Inspector General of Police (HGS), A.D. Nagar police station, Agartala lodged the FIR with the Officer in Charge of A.D. Nagar police station on the basis of which the case was registered and investigation was taken up. Apprehending arrest, the petitioner had approached the Court and his counsel, Mr A.K. Pal submitted that despite being innocent, petitioner has returned the entire sum allegedly defrauded by him to his department by withdrawing the same from his bank account and that no purpose of investigation will be served by his arrest and detention.

Mr R. Datta, P.P on the other hand contended that in all likelihood, the petitioner alone would not have been able to commit such a crime. His arrest and detention was, therefore, necessary to book his associates. He further argued that the petitioner had defalcated huge amount of money of his own department by making fictitious salary bills. Simply for the reason that he has returned the money, his offence does not get extinguished.

The Court was of the opinion that nature of allegations was serious and materials collected by the investigating agency have made out a good prima facie case against the accused petitioner. The Court noted that without assistance of others, petitioner would not have been able to commit the offence alone. Therefore, his custodial interrogation may be necessary to book his associates.

The Court stated that the essential parameters for consideration of bail are the nature of offence, the punishment thereto, possibility of his tempering with the prosecution evidence in case of his release on bail, likelihood of his fleeing away from the jurisdiction of the court etc., and believed that in the given circumstances the extra ordinary relief available under Section 438 CrPC cannot be given to the accused petitioner. The Court thus, rejected the bail application.[Jayanta Ghosh v. State of Tripura, 2021 SCC OnLine Tri 447, decided on 03-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J., dismissed the petition and approved the prayer for custodial interrogation.

The facts of the case are such that the daughter of the petitioner i.e. the victim left home for school and did not return. On him contacting school authorities he got to know that school was not open that day. He went to register a complaint at the police station under Section 363 Penal Code, 1860 i.e. IPC and investigation started. On investigation, it was found that her phone was being used on various locations and two numbers were contacted most frequently. The last location of the victim was Panipat after which the phone was switched off. The main fact that points to Nazim i.e the petitioner in the instant case being of significance is the fact that he spoke to Ibrahim who kept the victim with him as the petitioner was in Kerala. The victim was recovered and her statement was recorded after which a lot of additional facts and names came to the fore and thus Sections 366A, 370(4), 506 and 120B IPC were added. The Petitioner has approached this Court under Section 438 Criminal Procedure Code (i.e. Cr.P.C.), seeking anticipatory bail apprehending his arrest.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that there is no overt act on the part of the petitioner in leaving the house by the victim, rather victim had voluntarily left her house and when she reached Ambala, the petitioner had only helped her by providing shelter to her and victim was not sexually abused. It is also submitted that there is no past history of petitioner involving in the commission of the same nature or any other offence.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that petitioner is a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking. It was further submitted that accused are absconding and investigation is at the initial stage and non-cooperation of the accused persons, including petitioner, is hampering the investigation.

The Court observed that Police Officer/Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 CrPC. Arrest of an offender during investigation is duly prescribed in CrPC. Section 438 CrPC is an exception to general principle and at the time of exercising power under Section 438 CrPC, balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest accused amounts to interference in the investigation. It was also observed that nature, gravity and seriousness of offence, are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 CrPC.

The Court thus held “Considering entire facts and circumstances of the case and nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy, I find that prayer for custodial interrogation of the petitioner is justified and thus acceptable.” 

In view of the above, petition was dismissed.[Mohammad Nazim v. State of Himachal Pradesh, 2021 SCC OnLine HP 606, decided on 06-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., allowed pre-arrest bail to the applicant accused of raping a women whom he allegedly met on facebook.

Accused preferred a pre-arrest bail application for offence punishable under Section 376(1) of the Penal Code, 1860.

Petitioner and informant were in a relationship for 1.5 years and petitioner had promised to marry the informant.

When informant had reached Kozikhode for purchasing some clothes for their marriage, she was taken to a lodge, where both petitioner and informant stayed together and informant was subjected to penetrative sexual abuse.

Petitioner also took some pictures of the informant and threatened with the same to obtain a sum of Rs 40,000 and gold chain.

Decision

Bench noted that according to the de facto complainant, she was in a relationship with the petitioner.

Court relied on the Supreme Court case of Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra [2019 (1) KHC 403] wherein it was held that there is a distinction between rape and consensual sex.

Bench stated in the present matter that the question to be considered is:

Whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust?

“…former is not rape but the latter will fall within the ambit of cheating and deception.”

Distinction between mere breach of a promise and not fulfilling a false promise

Further Court also observed that,

if the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, then such consent cannot be said to be given under a misconception of fact.

Thus, in view of the above, Court’s opinion was that the custodial interrogation of the petitioner was not necessitous for an effective investigation.

Hence, the present application was allowed with certain conditions. [Shanil v. State of Kerala, 2020 SCC OnLine Ker 2625 , decided on 06-07-2020]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Harsimran Singh Sethi, J., held that, that once an offence takes place from the a mobile phone number, then the registered owner of the number has to explain as to how the said number was used for the commission of the offence.

Present petition was filed for grant of pre-arrest bail with regard to FIR under Section 420 Penal Code, 1860 read with Section 34 IPC and Section 66 of IT Act, 2000.

Petitioner’s counsel, Padamkant Dwivedi, submitted that the petitioner had been unnecessarily roped in the above-mentioned FIR and the allegation alleged against him were totally incorrect and false.

Deputy Advocate General, Ajay Pal Singh Gill, filed a status report of the investigation wherein it had been mentioned that the number from which fake call was received, it was registered in the name of the petitioner.

Bench stated that once the mobile phone which has been used in the commission of the offence is registered in the name of the petitioner and the said number had been issued after bio-metric verification of KYC of the petitioner, it is the petitioner who has to explain as to how the said number was used for the commission of the offence.

Once the recovery of the phone is to be effected, the custodial interrogation of the petitioner is necessary so as to find out as to whether petitioner is also involved in any other cases of the similar nature or not.

Court found no ground to allow the petitioner the benefit of pre-arrest bail. [Shubham Singh v. State of Punjab, 2020 SCC OnLine P&H 702, decided on 03-06-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J. allowed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

The applicant here is the accused in Crime No. 1158 of 2019, for offences punishable under Sections 418 and 420 of the Penal Code which was registered at Muhamma police station, and then the FIR was forwarded to SHO for investigation than to the Judicial First Class Magistrate.

The facts of the case are that the de facto complainant is the Managing Director of the Company-Brothers Coir Mills Pvt. Ltd., registered under the Companies Act, 2013, engaged in the business of manufacturing and exporting of coir products. The brother of the de facto complainant, John Jose, is one of the Director Board Member of the company. The accused worked as Senior Accountant of the company from 01-03-2017 to 31-08-2019.

The counsel for the respondent, B. Jayasurya, public prosecutor, contended that while the accused worked as a Senior Accountant of the company, he misappropriated the company funds in his own name. The total amount that he misappropriated was Rs 17,05,856. Hence, on this basis, the counsel contended that the accused should not be granted anticipatory bail. The counsel for the respondent hence was in the favour that there is a need for the custodial interrogation of the accused and recovery of the money.

The learned counsel for the petitioner, C.K. Sajeev, contended that for proper payments of the TDS amount due from the Company and to prevent hacking account from internet, the misappropriated amount was paid from the account opened in the name of the Director, namely, John Jose, who is the brother of the de facto complainant. The amount was transferred from the Current Account of the Company which was maintained with the South  Indian Bank Ltd. to the Current Account maintained and operated by the Board in the SME branch of the State Bank of India.

Section 148 of the Penal Code states that in case the accused cheats with the knowledge that he is likely to cause wrongful loss to a person whose interest is the transaction to which the cheating relates, he is bounded to be punished. The prosecution is bound to prove a legal contract.

Section 420 provides that in case where the accused cheats and dishonestly induces the person deceived to deliver any property to any person, to make or destroy or alter, whole or any part of a valuable security, which is signed or sealed and is capable of being converted into valuable security shall be punished as per Section 420.

The Court after perusing the documents came to the conclusion that there was some dispute between the Board of the Directors of the company and the petitioner, therefore, initiated the prosecution for no reason. The Court hence allowed the anticipatory bail with following directions:

  1. the petitioner will be released on bail in the event of arrest by executing a personal bond of Rs 50,000 along with two solvent sureties each for the amount to the satisfaction of the arresting officer.
  2. the petitioner will have to appear before the Investigating Officer every Monda between 10 a.m. and 1 p.m. for a period of 3 months or till the charge sheet is filed, whichever earlier.
  3. the petitioner should not in any manner intimidate or influence the prosecution witnesses
  4. in case of violation, it is open to the Court having jurisdiction over the case to cancel his bail without any further orders from the Court.[Balaji A.S. v State of Kerala, 2019 SCC OnLine Ker 6057, decided on 27-12-2019]
Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijajayaraghavan, J. rejected an application for pre-arrest bail on the ground that victim was a minor girl.

An application was filed under Section 438 CrPC for the offence punishable under Section 363 read with Section 34 of the Penal Code, Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012, and under Section 77 of the Juvenile Justice (Care and Protection) of Children Act, 2015.

The facts of the case were that the victim, the minor girl was called by the applicant to meet him as he had infatuation towards her and wanted to hug her. The victim reached the decided place in a car which belonged to the accused as stated by him. Thereafter they sat and had a conversation for some time. The applicant was alleged to offer a joint and they both smoked. Later, he was alleged to have sexually abused her.

Biju Antony, K.P. Prasanth, Shafin Ahammed, Hijas T.T., Archana Suresh, T.S. Krishendu, Vishnu Dileep counsels for the applicant submitted that numerous crimes were registered at the instance of the minor girl and this was also one such case. It was also submitted that investigation was almost complete and the custodial interrogation of the applicant was unwarranted.

Ramesh Chand, Public Prosecutor, strenuously opposed the prayer and submitted that the main allegation was that of sexual assault against the minor girl and thus the court will not be justified in arming the applicant with the order of pre-arrest bail.

The Court after perusing the material made available held that this was a prima facie case where a victim is a minor girl and thus held that “having regard to the nature and gravity of the allegations, the role assigned to the applicant, the age of the victim, the materials in support thereof and attendant facts, it does not appear to be a case in which this Court will be justified in granting the applicant an order of pre-arrest bail.”[Visobh K.V. v. State of Kerala, 2019 SCC OnLine Ker 1633, decided on 27-05-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. allowed the bail application filed by a member of a political party involved in protests against the entry of women in Sabarimala, on the ground that his custodial interrogation did not seem necessary for the investigation.

Petitioner herein was accused of offences punishable under Sections 143, 147, 148, 294(b), 506(ii), 324, 427, 332 and 307 read with Section 149 of Penal Code, 1860 and Section 3(2)(e) of Prevention of Damage to Public Property Act, 1984. Allegation of the prosecution was that on 02-01-2019, petitioner along with 350 people conducted a procession protesting against the entry of women in Sabarimala. They pelted stones at the office of a political party, on police officers, and also attacked the defacto complainant.

The Court noted that the earlier bail application filed by petitioner – leader of the political party – was dismissed by this Court considering that he had committed the main overt acts. He seems to be the. However, even though his earlier bail application was dismissed, the investigating agency had not arrested him till the date of this hearing. It seemed that the investigation had progressed considerably.

Considering the change of circumstances, it was opined that custodial interrogation of the petitioner may not be absolutely essential at that point of time. Hence, he was granted the benefit of pre-arrest bail.[Sivan v. State of Kerala, 2019 SCC OnLine Ker 1006, Order dated 26-03-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Raja Vijayaraghavan J., decided a bail application filed under Section 483 of the Code of Criminal Procedure, 1973 wherein the Court granted anticipatory bail to the applicant.

As per the facts of the case, the applicant was accused under Section 34 of the IPC. Further, the accused 1 to 4 were alleged to have abducted the de facto complainant and extorted money from him. The accused argued that the de facto complainant had made no allegations against him in the complaint. It was later based on the statement given by one of the accused that the applicant was roped in after several years.

The High Court observed that looking at the nature and gravity of the allegations, the role attributed to the applicant and the evidence in support a custodial interrogation of the applicant was not necessary for an effective investigation. Further, the Court directed the applicant to appear before the investigating officer within ten days from the date of present order and undergo interrogation also, on a proposal to be arrested he shall be released on bail. Thus, the court allowed the anticipatory bail application. [Moidu v. State of Kerala,2018 SCC OnLine Ker 2824, order dated 25-07-2018]