Jail Archives | SCC Blog

Whether promise to marry made to married women is legally enforceable? Ker HC deliberates in light of settled position of law

Kerala High Court: In a bail matter, P.V. Kunhikrishnan, J., noted the position of law that, a promise to marry made to married women is not legally enforceable, the offence of rape is not attracted.

The prosecution case was that on a day in the month of April 2021, on a false promise of marriage, the accused took the de facto complainant to a hotel and committed rape on her without her consent.

Hence, it was alleged that the accused committed the offence.

Petitioner’s counsel submitted that even if the entire allegations were accepted the offences under Section 376 IPC was not made out.

The counsel submitted that even according to the de facto complainant, she was married at the time of the alleged incident. In such circumstances, the allegation that the rape was committed promising marriage will not stand.

Further, the counsel took the Court through the Judgment of this Court in which it was stated that promise to marry made to married women is not legally enforceable, offence of rape not attracted.

In view of the above-stated facts, Court stated that the petitioner can be released on bail o stringent conditions.

Bench stated that it is a well-accepted principle that bail is rule and jail is the exception. Supreme Court in Chidambaram P. v. Directorate of Enforcement, (2019) 9 SCC 66, observed that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

High Court while allowing the bail application issued the following directions:

Petitioner shall be released on bail on executing a bond for Rs 50,000 with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
Petitioner shall not leave India without permission of the jurisdictional Court.
Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
Petitioner shall appear before the Investigating Officer on all Mondays at 10 am till the final report is filed.
If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. [Faris v. State of Kerala, 2022 SCC OnLine Ker 2251, decided on 6-5-2022]

Advocates before the Court:

By Adv. Nireesh Mathew

By Adv. Public Prosecutor Adv. Sanal P. Raj – P.P.

Case Briefs District Court

No death penalty, but life imprisonment for Yasin Malik: Patiala House Courts stresses on why ‘Terror Funding’ should be recognized as one of the gravest offences

Patiala House Courts: Stating that the crimes for which the convict had been convicted were intended to strike at the heart of the idea of India and to forcefully secede J&K from the Union of India, Parveen Singh, ASJ-03, expressed that terror funding should be recognized as one of the gravest offences and has to be punished more severely.

Prsent matter was listed for deciding the quantum of sentence to be awarded to the convict Mohd. Yasin Malik was convicted for the offences punishable under Sections 120B, 121, 121 A of Penal Code, 1860, Sections, 17, 18. 20 38 and 39 of UAPA.

In view of the Delhi High Court’s decision in Vishal Yadav v. State Govt of UP., Crl A 910 of 2008, socio-economic report of the convict was called for.

As per the said report, the convict owned a three-storey residential house in Srinagar where his mother and divorced sister alongwith her 2 sons used to reside. With respect to the social status of the convict he was acting as JKLF Chairman and was an influential person.

As per the jail conduct report of the convict, he had been satisfactory in the jail and no jail punishment was recorded against him. Further, with regard to his inclination towards reformation, his behaviour towards everyone remained cordial and peaceful and he seemed to be inclined toward reformation.

Analysis and Decision

Court expressed that it is a well settled position of law that while awarding sentence the Court has to consider aggravating and mitigating circumstances in order to arrive at a just sentence to be awarded to the convict.

Further, it is also well settled that there is no straight jacket formula for awarding sentence based upon any individual theory of punishment and that each case must be decided on its own facts and circumstances.

Twin objective of sentencing is deterrence and correction.

“The crimes for which convict has been convicted are of very serious nature. These crimes were intended to strike at the heart of the idea of India and intended to forcefully secede J&K from UOI. The crime becomes more serious as it was committed with the assistance of foreign powers and designated terrorists. The seriousness of crime is further increased by the fact that it was committed behind the smoke screen of an alleged peaceful political movement.”

Bench elaborated stating that admittedly the convict had been engaged in violent terrorist activities prior to 1994.

In Court’s opinion, there was no reformation of the said convict and adding to this, Court stated that he never expressed any regret for the violence he had committed prior to the year 1994.

Further, it was notice that when he claimed to have given up the path of violence, Government of India took it upon its face value and gave him an opportunity to reform and in good faith tried to engage in a meaningful dialogue. However, the convict did not desist from violence. Rather, betraying the good intentions of the Government he took a different path to orchestrate violence in the guise of political struggle.

“Convict has claimed that he had followed Gandhian principle of non-violence and was spear heading a peaceful non violent struggle.”

Bench observed that, the convict cannot invoke the Mahatma and claim to be his follower because in Mahatma Gandhi’s principles, there was no place for violence, howsoever high the objective might be.

“It only took one small incident of violence at Chauri Chaura for the Mahatma to call off the entire non-cooperation movement but the convict despite large scale of violence engulfing the valley neither condemned the violence nor withdrew his calendar of protest which had led to the said violence.”

In view of the above discussion, Convict was sentenced as under:

Under Section 120B IPC:

Convict sentenced to rigorous imprisonment 10 years, fine of Rs 10,000, in default of payment simple imprisonment for a period of 6 months.

Under Section 121 IPC:

Merely because the offence provides for capital punishment, the same cannot be handed over to the convict in a routine manner or as a matter of rule.

Death penalty should be awarded in exceptional cases where the crime by its nature shocks the collective consciousness of the society and has been committed with unmatched cruelty and in a gruesome manner.

In the instant case, the manner in which the crime was committed was in the form of conspiracy whereby there was an attempted insurrection by instigating, stone pelting and arson and a very large scale violence led to shut of the government machinery and ultimate secession of J&K from UOI.

However, the Court concluded that the crime in question would fail the test of rarest of rare cases as laid down by the Supreme Court.

Under Section 121A IPC:

Sentenced to rigorous imprisonment of 10 years and fine of Rs 10,000.

Under Section 13 UAPA read with Section 120B IPC:

Rigorous imprisonment of 5 years and a fine of Rs 5,000.

Under Section 15 UAPA as punishable under Section 16 UAPA read with Section 120B IPC:

Rigorous imprisonment of 10 years and a fine of Rs 10,000.

Under Section 17 UAPA:

“Financing is the backbone of any operation including terrorist activities.”

Stating that terror funding is one of the gravest offences, Court noted in the present case that, the order on charge specifies how funds were raised and how they were received from Pakistani establishment as well as designated terrorist Hafeez Saeed and through other hawala operations. The said funds were used to create unrest where under the guise of public protests, paid terror activities of stone pelting and arson at mass scale were committed. Had there been no such funding for the convict to conspire to commit the said acts and to pay the perpetrators, the violence and mayhem at this scale could not have been committed. Therefore, in Court’s opinion, terror funding should be recognized as one of the gravest offences and has to be punished more severely.

Hence, convict was sentenced to life imprisonment and a fine of Rs 10,00,000 was imposed and on default on payment, a simple imprisonment for a period of 2 and a half years.

Under Section 18 UAPA:

Sentenced to rigorous imprisonment 10 years. A fine of Rs. 10,000/.

Under Section 20 UAPA:

Sentenced to rigorous imprisonment 10 years and fine of Rs 10,000.

Under Section 38 UAPA:

Sentenced to imprisonment 5 years and fine of Rs 5,000.

Under Section 39 UAPA:

Sentenced to rigorous imprisonment of 5 years and fine of Rs 5,000.

All the above-stated sentences shall run concurrently and benefit of Section 428 CrPC shall be given to the convict. [State v. Mohd Yasin Malik, 2022 SCC OnLine Dis Crt (Del) 21, decided on 25-5-2022]

Case Briefs High Courts

For money launderers “jail is the rule and bail is an exception”: All HC

Allahabad High Court: While addressing a matter with regard to anticipatory bail, Krishan Pahal, J., observed that, Money Laundering being an offence is economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.

An anticipatory bail application had been filed on behalf of the applicant under Section 3/4 of the Prevention of Money Laundering Act, 2002 to enlarge him on bail.

Analysis, Law and Decision

High Court stated that Section 45 of the PMLA Act provides two conditions that are mandatory in nature and must be complied with before granting bail to the accused of an offence.

The above was reiterated in the case of Gautam Kundu v. Directorate of Enforcement, (2015) 16 SCC 1.

Further, in the case of Union of India v. Varinder Singh, 2017 SCC OnLine SC 1314, Supreme Court observed that Section 45 of the PMLA Act imposes conditions for the grant of bail. Bail cannot be granted without complying with the requirements of Section 45 of PMLA Act.

The Bench expressed that the PMLA Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering.

The provisions of Code of Criminal Procedure will not be applicable until there is no specific provision given in PML Act, 2002.

Elaborating further, Court stated that offences like money laundering are committed with proper conspiracy, deliberate design with the motive of personal gain regardless of the consequences to the society and economy of the Country.

Hence, for money launderers “jail is the rule and bail is an exception”.

Concluding the matter, Court held that on prima facie reading of material on record and considering parameters of Section 45(1) PMLA as well as the gravity of the alleged offences, the applicant was not guilty of the alleged offences or that he was not likely to commit such offence while on bail. [Anirudh Kamal Shukla v. Union of India, 2022 SCC OnLine All 176, decided on 21-3-2022]

Advocates before the Court:

Counsel for Applicant :- Purnendu Chakravarty, Anuuj Taandon

Counsel for Opposite Party :- A.S.G.I., Shiv P. Shukla

Case Briefs High Courts

Law on Recovery of Maintenance | Limitation of 1 year for recovery of maintenance under S. 125(3) of CrPC and the law on enforcement to claim order of maintenance under S. 128 CrPC: All HC explains

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.”

High Court also observed that, scope of Sections 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.

An application under Section 482 of the Code of Criminal Procedure, 1973 was filed to quash the proceedings of Execution Case under Section 128 of the Code passed by Additional Principal Judge, Family Court.

Factual Matrix

An application under Section 125 of the Code was filed by OP 2 and it was allowed by means of an ex parte order with a direction to make payment of a monthly allowance of Rs 1,000 for life to the OP 2 and a monthly allowance of Rs 500 each to OPs 3,4,5 and 6 till they attain majority.

Proceedings for enforcement of the aforesaid order of maintenance under Section 128 of the Code were initiated pursuant to an application registered as Execution Case wherein a prayer was made for recovery of the amount.

Pursuant to a recovery warrant issued in the execution proceedings, the applicant appeared before the court and filed an application expressing his willingness to deposit fifty per cent of the amount due and order was passed directing that 50% of the amount due be deposited and the remaining amount be deposited in instalments. Subsequently, order in respect of recovery of balance amount was also passed.

In view of the above background, the present application had been filed seeking quashing of the subsequent orders and the entire proceedings of the execution case.

Crux of the matter

Order under Section 125(1) CrPC having been passed, the proceedings for enforcement of the order initiated under Section 128 of the Code pursuant to the application would be barred by limitation being beyond the period of one year from the date of order under Section 125(1).

Question for consideration

Whether the limitation prescribed under proviso to Section 125(3) would be applicable in respect of proceedings under Section 128 of the Code?

Analysis and Discussion

High Court noted that in Supreme Court’s decision of Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405, considered the distinction between the mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which had fallen in arrears on the other, in the context of Sections 125(3) and 128 of the Code.

In the above-referred decision, it was held that,

“…sentencing a person to jail as per terms of Sections 125(3) of the Code is a ‘mode of enforcement’ and not ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears.”

The provisions contained under Section 125(3) of the Code and the first proviso thereto again came up for consideration in Poongodi v. Thangavel, (2013) 10 SCC 618, and it was held that the first proviso to Section 125(3) does not create any bar or fetter on claiming arrears of maintenance and it neither extinguishes nor limits entitlement to arrears of maintenance.

High Court observed that,

The proceedings for maintenance under Section 125 of the Code are of a summary nature and the purpose and object of the same is to provide a simple and speedy remedy, and to ensure that the deserted wife, children and parents are not left destitute and without any means for subsistence.

Further, the Court added that,

The provisions contained under Section 125(3), as aforesaid, would indicate that the issuance of warrant or the imprisonment of the person concerned, is only a mode of recovery of the amount due in terms of the order made under sub-section (1) to Section 125 for payment of monthly allowance. The mode of recovery by issuance of a warrant or by imprisonment of the person as per terms of Section 125(3), has been held distinct from actual satisfaction of the liability.

Mode of Enforcing has been held to be not a Mode of Satisfaction

The purpose of imprisonment would not be to wipe out the liability which a person has refused to discharge; the imprisonment of the person concerned being in no way a substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

Further, elaborating the provision, Court added that Section 125(3) of the Code circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. The first proviso to Section 125(3) prescribing limitation of one year to seek recovery of arrears of maintenance, is only in respect of the procedure for recovery of maintenance as per terms of the sub-section, by construing the same to be a levy of fine.

Section 128 of the Code provides for enforcement of the order of maintenance against the person against whom the order of maintenance has been made.

Limitation

The entitlement to claim enforcement of the order of maintenance under Section 128 by seeking discharge of the liability as per terms of the order of maintenance granted under Section 125, therefore cannot be held to be extinguished in terms of the one-year limitation prescribed under the first proviso to Section 125(3), High Court noted.

The Bench further referred to the decision of Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, with regard to the scope of a proviso as an internal aide to the interpretation of statutes. In the said decision it was held that a proviso must be limited to the subject matter of the enacting clause and must be read and considered in relation to the principal matter to which it is a proviso.

“Section 125 (3) of Code would have to be held to be confined to the Section which precedes it.”

Hence, the limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125 (3) cannot be held to travel beyond or stretch to an extent so as to being within its ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code.

Therefore, concluding the decision, Court held that the proceeding for the enforcement of the order under Section 128 cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the Code

In view of the above discussion, present application failed and was dismissed. [Mohammad Usman v. State of U.P., 2021 SCC OnLine All 640, decided on 31-8-2021]

Advocates before the Court:

Counsel for Applicant: Triloki Nath

Counsel for Opposite Party: G.A.

Op Eds OP. ED.

Where Jail is the Rule and Bail is the Exception | Analysing Recent Judicial Trends towards Bail in Economic Offences

The incarceration of an accused pending trial is considered necessary in the interests of justice when there is a reasonable apprehension that he might attempt to subvert the case against him by tampering with the evidence, by intimidating the witnesses, or where he poses a flight risk. In absence of such apprehensions, it is considered judicious to release the accused from custody on bail. In Sanjay Chandra v. CBI^[1], the Supreme Court held that the object of bail is neither punitive nor preventative, it is merely to secure the appearance of the accused at the trial by a reasonable amount of bail. The Court further held that the deprivation of liberty must be considered a punishment unless it is absolutely necessary in the interests of justice.

This otherwise laudable approach is not very practicable in cases of offences that are of a continuing nature. The concept of an offence of a continuing nature was explained by the Supreme Court in State of Bihar v. Deokaran Nenshi—

“A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. … The question whether a particular offence is a ‘continuing offence’ or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.

… the distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”^[2]

Thus, as distinguished from general offences which are of a standalone nature, in a continuing offence the commission or consequences of such a crime is not affected over a small period of time or on a single occasion but are rather spread out over a considerable period of time. An example of such an offence is money laundering.

Thus, in the case of a continuing offence, it is difficult to ascertain the conclusion or termination of the criminal act and its object. For example, in the case of money laundering, while the initial part of the offence is over quickly, the proceeds of the illegal act can theoretically be utilised over an indefinite period of time. It is in this background that releasing on bail an accused who is charged with committing an offence of a continuing nature becomes problematic since it is highly probable that he will attempt to frustrate the case against him especially since the criminal act would still be in progress.

The need for a further classification

The primary intention behind treating “economic offences” as a separate class of crime stems from the fact that compared to a regular offence which is generally directed towards a particular person or section of the society, economic offences affect and harm the populace at large by impairing the economic stability and well-being of the nation. In Y.S. Jagan Mohan Reddy v. CBI, the Supreme Court explained the nature of economic offences and went on to hold that: 34. … The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.[3]

The need for a separate classification further stems from the distinct treatment of offenders under certain statutes, especially those pertaining to economic offences. These special laws follow a different approach towards bail and act as a further barrier between the accused and his quest for liberty by imposing additional obligations, popularly referred to as the “twin conditions” for bail. We refer to Section 45[4] of the Prevention of Money-Laundering Act, 2002 (PMLA) to better understand the concept of twin conditions for bail:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973[5], no person accused of an offence under this Act shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

These twin conditions lay down a special duty upon the court by making it mandatory to ensure that the Public Prosecutor is allowed a chance to oppose the application for release on bail and where the Public Prosecutor opposes the bail petition, the court has to be prima facie satisfied that the accused is not guilty of the offences charged with and that he shall not commit any further offences while on bail. Such satisfaction of the court must be recorded in writing in the order granting bail. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.[6]

These twin conditions are in addition to the conditions as stipulated under the Code of Criminal Procedure (CrPC) and form a part of multiple statutes dealing with special offences such as the Narcotic Drugs and Psychotropic Substances Act, 1985[7] (NDPS), Terrorist and Disruptive Activities (Prevention) Act, 1987[8] (TADA), Companies Act, 2013[9], Maharashtra Control of Organised Crime Act, 1999[10] (MCOCA) and Unlawful Activities (Prevention) Act, 1967[11] (UAPA).

The great schism in bail jurisprudence

The origins of the distinct treatment of economic offences vis-à-vis general offences at the stage of bail can be traced back to a batch of petitions that were heard by the Supreme Court back in 2013[12]. In Y.S. Jagan Mohan Reddy v. CBI[13], the Supreme Court while dealing with the bail applications for offences under the Prevention of Corruption Act[14] (PC Act) discussed in length the concept of an economic offence and its ramifications on the society at large:

Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail….
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.[15]

The landmark judgment delivered in Jagan Mohan Reddy[16] has been pivotal in changing the approach from bail as rule to custody as rule in cases concerning economic offences. The judicial approach laid down in Jagan Mohan Reddy[17] was thereafter followed by the Supreme Court in Gautam Kundu v. Directorate of Enforcement[18] wherein the petitioners who were charged with offences under the Securities and Exchange Board of India Act, 1992[19] (SEBI) and the PMLA Act had challenged the order passed by the Calcutta High Court denying them bail. The Supreme Court relying on the precedent laid down in Jagan Mohan Reddy[20] upheld the order passed by the High Court. The Court further went on to discuss the rationale behind the distinct treatment of economic offenders—

There is no doubt that PMLA deals with the offence of money laundering and Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by Parliament for dealing with money laundering.

In State of Bihar v. Amit Kumar[21], the Supreme Court while dealing with a matter concerning large scale fraud in intermediate examinations in Bihar reiterated the law laid down in Jagan Mohan Reddy[22] and held that—

It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Usually, socio-economic offence has deep-rooted conspiracies affecting the moral fibre of the society and causing irreparable harm, needs to be considered seriously.

When the seriousness of the offence is such, the mere fact that he was in jail for however long time should not be the concern of the courts. We are not able to appreciate such a casual approach while granting bail. The government’s interest in preventing crime by arrestees is both legitimate and compelling. Although “bail is the rule and jail is an exception” is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail.

While this distinct treatment of economic offenders while granting bail has commenced after the judicial pronouncement in Jagan Mohan Reddy[23], the twin conditions for bail as laid down by Section 45 of the PMLA are not exactly new and similar provisions form a part of multiple statutes. These twin conditions are generally a part of legislations aimed at dealing with terrorism and organised crime. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra[24], Supreme Court upheld the validity of sub-section (4) of Section 21 of the MCOCA which imposed similar twin conditions as under PMLA for grant of bail.

… the validity of sub-section (4) of Section 21 of the Act must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction.

Rationale behind the distinct treatment of economic offenders

Economic offences unlike regular offences are not standalone in nature and they act as facilitators for other crimes. They help drain public funds, accelerate economic inequalities and can be used to undermine and destabilise nations. It must be appreciated that the stringent conditions as laid down under statutes such as PMLA are in line with the standards laid down by international bodies such as the United Nations General Assembly and the Financial Action Task Force. To understand the rationale behind the harsh treatment meted out to economic offenders by a judicial system which has always stood up against curtailing the liberty of even accused persons, it is important to refer to some of the landmark judgments delivered by the Supreme Court on this issue.

The approach of the judiciary towards economic offenders can be summed up by the observations made by the Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal wherein the Court laid down that the:

5. … entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community.^[25]

The Court in this case recognised the long-term ramifications of economic offences and laid down the basis for the distinct treatment of such offenders.

A similar approach was taken by the Supreme Court in P. Chidambaram v. Directorate of Enforcement[26] wherein the Court laid down that:

“Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail should be granted only in exceptional cases… Exercising the power to grant anticipatory bail in cases of the Prevention of Money-Laundering Act would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards… Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.”

The Court further held that a delicate balance is required to be established between safeguarding the personal liberty of an individual and the societal interest, and refusal to grant anticipatory bail cannot be termed as a denial of the rights conferred upon the accused under Article 21[27] of the Constitution of India. In this case, the Court also recognised that money laundering poses a serious threat not only to the economy of the country but also to its integrity and sovereignty.

A similar view was taken by the Court in Serious Fraud Investigation Office v. Nittin Johari[28] where the Court while dealing with a bail application under Section 212(6)[29] of the Companies Act, 2013, which imposes similar twin conditions for bail, once again reiterated that economic offences constitute a class apart and need to be viewed seriously and considered as grave offences affecting economy of country as a whole and thereby posing serious threat to the financial health of the country.

Cases involving economic offences are among a small minority of crimes where the court has regularly overruled fears associated with custodial interrogation and has gone on to favour incarceration of the accused to facilitate a fruitful investigation by the authorities. In State v. Anil Sharma[30] where an ex-minister was charged with offences under the PC Act and had been granted anticipatory bail by the Himachal Pradesh High Court, Supreme Court overturned the order and held that:

… custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438[31] of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual.

A similar view was taken by the Supreme Court recently in CBI v. Ramendu Chattopadhyay[32] wherein the accused who was charged with playing a key role in the promotion of a chit fund scam in the State of Orissa was remanded to custody by cancelling the order passed by the High Court of Orissa granting him interim bail.

At this juncture, it is pertinent to mention that statutes such as the PMLA also function under a reverse burden of proof system where the initial burden of proving that the accused is not guilty of the offences that he is charged with lies on him and not the prosecution and until he discharges such burden, the court shall presume him to be guilty. This acts as a further rider against the grant of bail in cases of economic offences as it goes against the cardinal principle of criminal jurisprudence which treats an accused as innocent until proven otherwise. In the case of regular offences, bail is granted to the accused as a general rule as he is presumed to be innocent while no such presumption exists in favour of economic offenders. In Rohit Tandon v. Directorate of Enforcement[33], Supreme Court observed that the provisions of Section 24[34] of the PMLA provide that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant.

In Union of India v. Hassan Ali Khan[35] it was held that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PMLA. The same proposition of law was reiterated and followed by the Orissa High Court in Janata Jha v. Directorate of Enforcement.[36]

It is also pertinent to mention herein that the precedents cited hereinabove do not create an absolute bar against the grant of bail and the Supreme Court has categorically ruled that merely because the allegations against an accused are of grave economic offences, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so.[37]

Conclusion

From the discussion hereinbefore, it is apparent that the departure from the basic jurisprudence of bail being the norm and jail being the exception to a scenario where custody has become the default has arisen from a realisation of the gravity of economic offences whose ramifications are far-reaching and extend over a prolonged period of time. In a recent judgment, the Delhi High Court held that “… economic offences are offences which corrode the fabric of democracy and are committed with total disregard to the rights and interest of the nation and are committed by breach of trust and faith and are against the national economy and national interest….”^[38] These observations made by the High Court are in line with the views expressed by the Supreme Court holding economic offenders to be “a menace to the society”. ^[39]

Keeping in mind the consequences of economic offences that would befall the society, the courts have held them to be of a distinct class and under the category of grave offences which can threaten the democratic set-up and the national economy. Hence, appreciating the sensitivity of the nature of allegations in cases involving economic offences, the courts have justifiability departed from the general rule involved in granting of bail and have put the societal interests in preventing and punishing economic offenders at a higher pedestal than the rights of an accused facing incarceration before conviction.

† Advocate, Calcutta High Court.

[1] (2012) 1 SCC 40.

[2] (1972) 2 SCC 890.

[3] (2013) 7 SCC 439.

[4] <http://www.scconline.com/DocumentLink/CSH9fgCN>.

[5] <http://www.scconline.com/DocumentLink/y587uE3Q>.

[6] Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549.

[7] <http://www.scconline.com/DocumentLink/206RMMRJ>.

[8] <http://www.scconline.com/DocumentLink/xKZQnZ4c>.

[9] <http://www.scconline.com/DocumentLink/A5aqjfDv>.

[10] <http://www.scconline.com/DocumentLink/1iGLPK20>.

[11] <http://www.scconline.com/DocumentLink/M11S873T>.

[12] Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, Nimmagadda Prasad v. CBI, (2013) 7 SCC 466

[13] (2013) 7 SCC 439

[14] <http://www.scconline.com/DocumentLink/zo935L02>

[15] (2013) 7 SCC 439.

[16] (2013) 7 SCC 439.

[17] (2013) 7 SCC 439.

[18] (2015) 16 SCC 1.

[19] <http://www.scconline.com/DocumentLink/mulMMe8P>.

[20] (2013) 7 SCC 439.

[21] (2017) 13 SCC 751.

[22] (2013) 7 SCC 439.

[23] (2013) 7 SCC 439.

[24] (2005) 5 SCC 294.

[25] (1987) 2 SCC 364.

[26] (2019) 9 SCC 24.

[27] <http://www.scconline.com/DocumentLink/VN1u87S9>.

[28] (2019) 9 SCC 165.

[29] <http://www.scconline.com/DocumentLink/jeRCN9VL>.

[30] (1997) 7 SCC 187.

[31] <http://www.scconline.com/DocumentLink/i3F1S08A>.

[32] (2020) 14 SCC 396.

[33] (2018) 11 SCC 46.

[34] <http://www.scconline.com/DocumentLink/6bbcTlES>.

[35] (2011) 10 SCC 235.

[36] 2013 SCC OnLine Ori 619.

[37] P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791.

[38] Malvinder Mohan Singh v. State, 2020 SCC OnLine Del 2001

[39] Enforcement Officer v. Bher Chand Tikaji Bora, (1999) 5 SCC 720.

Case Briefs High Courts

[COVID-19] Tri HC| State must ensure that the health those in jails and orphanages is not jeopardized; Directions issued to devise plans

Tripura High Court: The Division Bench of Akil Kureshi, CJ. and S. Talapatra, J., perused the latest affidavit filed by the State dated 16-05-2021 in which had several details particularly concerning the preparedness of the State-administration to deal with emerging Covid related situation.

The affidavit contained availability of Covid beds in different hospitals with continuous oxygen supply and other support systems. It was stated that in addition to the existing hospital beds with pipelined oxygen supply, 150 hospital beds which currently have oxygen cylinders as well as oxygen concentrators, shall be covered with oxygen supply through pipeline within a period of two weeks from today. State assured that this quantity was more than sufficient to cover not only the current requirement but any possible foreseeable future requirements. The affidavit further provided details of the vaccination progress in the State giving category-wise such as, coverage of first and second doses to healthcare workers, frontline workers, citizens over 60 years, those in the age group of 45 to 59 years etc.

The Court noted the details provided by the State administration and brought the attention of the administration towards two main aspects which required immediate action which were the high infection cases in State-run orphanages and jails. The Court requested the administration to ensure maximum possible testing of these children, further in the case of jail inmates the State which has restricted the movement of a citizen, of course by authority of law, has the onus to ensure that his health is not jeopardized on account of being kept confined. The Court further brought notice of the State-administration towards the requirement of round the clock helpline which is efficient, functional and provides all necessary information and support to the relatives of the patients who are in need.

The Court listed the matter on 24-05-2021 with a devised plan in relation to abovementioned concerns.

[Court on its own motion, 2021 SCC OnLine Tri 275, decided on 17-05-2021]

Suchita Shukla, Editorial Assistant has put this report together

For Respondent(s): Mr S S Dey, Advocate General, Mr Debalaya Bhattacharya, Govt. Advocate, Ms Ayantika Chakrabroty, Advocate.

Op Eds OP. ED.

Gamut of Section 436-A of the Code of Criminal Procedure: An Analysis

With the best interests of under trial prisoners in mind, Section 436-A of the Code of Criminal Procedure (CrPC) was brought in. The intent behind the new section was to uphold the rights of imprisoned individuals who are forced to languish in jail for prolonged periods of time pending investigation, inquiry or trial. In many cases, imprisonment of under trial prisoners was continuing for substantial periods of time as against the principle of “presumption of innocence until found guilty”.

Section 436-A CrPC

Section 436-A CrPC was brought into force w.e.f. June 23, 2005, by virtue of an Ordinance duly promulgated by the President of India.

Section 436-A CrPC states that where a person has, during the period of investigation, inquiry or trial under the CrPC of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.

The first proviso states that the Court may, after hearing the public prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties.

The second proviso envisages that no such person shall, in any case, be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Furthermore, the explanatory provision states – In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

Gamut of the Provision

Although the provision appears to be quite axiomatic, it can be seen that the relief of bail does not follow as a matter of course even if the pre-conditions contemplated in the provision are satisfied. The first proviso empowers the Court to deny such relief if it is of the opinion that further detention is necessary. As regards the second proviso – it elucidates that the relief is absolute in case the under-trial prisoner has served the maximum term prescribed for the offence he is charged with.

The First Proviso of Section 436-A CrPC

The Supreme Court and High Courts in a spate of judgments have indicated that speedy trial is a fundamental right of an accused under Article 21 of the Constitution of India and the consequence of denying such right is bail.

Although, the right to bail under the provision is not an absolute right, can the Courts deny relief to prisoners by getting into merits of the matter?

In Bhim Singh v. Union of India[1], a three-judge Bench of the Supreme Court directed the Jurisdictional Magistrates/Sessions Judges to hold one sitting in a week in each jail/prison for two months to identify the under-trial prisoners who had completed half period of the maximum term; or maximum term of imprisonment stipulated for the offence – and pass an appropriate order to release them on bail. The bench also issued directions to all the High Courts in the country to ensure compliance of the said order and submit a report to the Secretary of the Supreme Court without unnecessary delay.

It would not be out of place to say that much prior to the provision coming in existence, the Supreme Court had expressed concerns with regard to persons languishing in jail for long periods of time. In Hussainara Khatoon v. Home Secretary, State of Bihar[2], Justice Bhagwati, speaking for the Supreme Court, recognised ‘speedy trial’ as a fundamental right of an accused and anxiously directed the State to take steps for a positive approach on enforcing this fundamental right.

In Supreme Court Legal Aid Committee v. Union of India[3], the Supreme Court, relying on Hussainara Khatoon (supra) directed the release of prisoners charged under the Narcotic Drugs and Psychotropic Act after completion of one half of the maximum term prescribed under the Act. A.M. Ahmadi, J. (speaking for the Court) directed the same in an Article 32 petition, after taking into account the non obstante provision of Section 37 of the Act which imposed the rigours of twin conditions for release on bail. It was observed:

“We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab[4]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in AR Antulay v. RS Nayak[5], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21.

As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.”

In Hasan Ali Khan v. State[6] the Bombay High Court was pleased to release an undertrial prisoner charged under provisions of PMLA, after serving one half of the maximum term prescribed under the special statute. It was held:

“Since the Hon’ble Supreme Court has observed that the case of the present Applicant is to be considered in view of the judgment of Bhim Singh v. Union of India, this Court is of the opinion that it would not be necessary to go into the merits of the matter. Hence, this Court is of the opinion that by virtue of Section 436-A CrPC, 1973, the applicant is entitled to be enlarged on bail.”

Similarly, the Bombay High Court in Rashesh Mukesh Shah v. State[7] enlarged the accused (who had completed one-half of the maximum term prescribed) on bail under Section 436-A CrPC without getting into the merits of the matter.

The approach of Courts indicates that although the first proviso of Section 436-A CrPC empowers the Court to direct continued detention of the prisoners, the Courts would be overstepping the very said boundaries if the merits of the matter are ventured into for the purpose of denying relief under the provision.

Just as right to speedy investigation is a facet of Article 21 of the Constitution of India, the right to speedy trial, too, is a facet of Article 21. Two sides of the same coin, both facets hold water. As we know, failure to complete investigation within the prescribed period under Section 167(2) CrPC renders an indefeasible and right of bail in favour of the accused[8]. In fact, the Supreme Court made it clear that the pandemic of Covid-19 was no ground for the investigating agency to delay the investigation[9].

A valid approach to deny the benefit under Section 436-A CrPC, would only occur if the accused is mischievously and purposely delaying the trial and the same is solely attributable to his/her credit.

It is, therefore manifest that denial of relief under the provision, in any other case, could be a subterfuge, an infringement of a valuable fundamental right guaranteed under the Constitution of India.

† Advocate, Bombay High Court. Views are personal.

[1] (2015) 13 SCC 605.

[2] (1980) 1 SCC 98

[3] (1994) 6 SCC 731.

[4] (1994) 3 SCC 569.

[5] (1988) SCC 1531.

[6] 2015 SCC OnLine Bom 8695

[7] 2018 SCC OnLine Bom 17551

[8] (2001) 5 SCC 453

[9] 2020 SCC OnLine SC 529

Case Briefs High Courts

All HC | [Bail under SC/SCT (POA) Act] Failure to serve notice of bail upon victim, is failure of State to perform its statutory function; Accused cannot be visited with penal consequences for default of the State

Allahabad High Court: Ajay Bhanot, J., while allowing the present petition, on e-bail applications, said, “The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general.”

Amendments to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, made in the year 2016, brought an alteration in the practice and procedure for hearing of bail applications. Present petition has been moved to seek directions in remedy of certain anomalies as pointed out by the petitioners, including, inconsistencies in the procedure for hearing of bail applications and bail appeals, uncertainty in the period of maturation of bail applications and bail appeals, and deferment of hearing of bail applications or bail appeals under the Act for undefined periods.

Issue

What is the agency and mode for service of notice of bail applications/bail appeal upon the victim under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act?
What is the time period for maturation of a bail application/bail appeal before the High Court which implements the mandate of the Act (as amended from time to time) and agrees with the requirements of constitutional liberties?

Observations

On Right to Bail

Court placed reliance on the case of Gudikanti Narasimhulu v. Public Prosecutor High Court of Andhra Pradesh, (1978) 1 SCC 240, “Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”

Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14, “The principle to be deduced from Sections 496 and 497 of the Criminal Procedure Code, therefore, is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person, if he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody”

Reinforcing the connection between the concept of liberty and the process of criminal law, the Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine 964, said, “Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Highlighting provisions for bail in High Court Rules

“Bail applications have to be processed expeditiously and placed before the court for hearing in a reasonable and definite time frame. The procedure for processing the bail application needs to be consistent, and the time period for hearing of the bail application has to be certain.

A bail processual framework violates fundamental rights and personal liberties of an accused guaranteed under Articles 14 and 21 of the Constitution of India in the following situations:

Provisions with an unreasonably large time for maturation of a bail application;
Procedures where the time period for hearing of a bail application is undefined;
Practices causing indefinite deferment of hearing of a bail application.
Failure of police authorities to provide timely instructions to the Government Advocate before the hearing of bail application.”

Court further reproduced the process of maturation of a bail application as contained in Rule 18 of Chapter 18 of the Allahabad High Court Rules.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Relevant Provisions and Discussion

“The Constitution of India asserts the equality of all its citizens. However, the founding fathers were equally conscious of inequalities which blight our society. Many sections of our society are downtrodden and oppressed because of historical reasons. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as amended from time to time), is a recognition of the fact of inequalities in our society; and a reflection of the resolve to do equal justice.”

Citing relevant provisions, Court observed,

“Section 15A(3) has two limbs: The first is the nomination of the agency to inform the victim about such proceedings under the Act before the Court. The second limb provides for ‘reasonable, accurate and timely notice’ of any criminal proceedings including a bail application/bail appeal to the victim or his dependent. Section 15(A) 3 visualizes some elements of process of maturation of bail, for being placed before the Court. However, it does not disclose any time frame for the same.”

With respect to the word ‘shall’ as added by the legislature, Court referred to the case of Dilip Kumar Sharma v. State of MP, (1976) 1 SCC 560, wherein the Supreme Court said, “It is well settled that such a penal provision must be strictly construed ; that is to say, in the absence of clear compelling language the provision should not be given a wider interpretation and no case should be held to fall within which does not come within the reasonable interpretation of the statute. If two construction are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness and eschew the other which makes the operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.” The position which thus emerges is that under the Act the State Government or Special Public Prosecutor is nominated as the sole agency with the exclusive statutory duty to inform the victim about the bail proceedings. Any practice to create an intermediate agency or alternative method for service of notice upon the victim should be avoided.

Directions issued

The notice of the bail application or bail appeal under the Act shall be served upon the Government Advocate before 12:00 PM of any working day.
The State Government shall ensure that service of notice of the bail application or bail appeal is effected upon the victim not later than 96 hours after the receipt of the said notice.
The victim will be entitled to 72 hours after the receipt of notice of bail.
Save in exceptional circumstances which are accepted by the Court, the bail application or bail appeal under the Act shall be placed before the Court immediately after the expiry of 168 hours or 7 days from the time of service of notice of bail application or bail appeal upon the Government Advocate as aforesaid.
The report of the service of notice of bail application or bail appeal shall be submitted by the State authority before the court showing due compliance of the provisions of Section 15(3) of the Act.
In case the counsel for the applicant does not move the bail application or bail appeal as per the current procedure to enable it to be placed before the Court 7 days after the initial service of notice, this procedure shall be followed. The applicant or his or her counsel shall give 96 hours of notice to the Government Advocate as to the exact date on which such application is intended to be moved. The State shall thereafter cause such notice to be served again upon the victim so as to enable him to have “accurate, notice of the proposed bail application”.
During this period of 7 days notice of the bail application under the Act, the police authorities shall ensure that appropriate instructions are available with the Government Advocates to assist the Court at the hearing of the bail application or bail appeal.
The SSP/DCP/SP (in districts where there is no post of SSP) of the concerned district shall be the nodal officer, who shall supervise the staff charged with the duty of actually serving the notice upon the victim and to provide instructions and relevant material to the Government Advocate on the bail application. In case, there is default on part of such official, the SSP/DCP/SP of the concerned district shall take immediate action in accordance with law against such erring official.
Before parting the Court cannot but take notice of the fact that we live in the age of information technology. The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general. The State Government and the Bar are stakeholders in the matter. On behalf of the State, it has been submitted that the office of the Government Advocate does not have the infrastructure and trained personnel to accept and process e-notices of bail applications.
Accordingly, the State Government is directed to ensure that requisite infrastructure and trained personnel in the High Court (Office of Government Advocate), as well as in police stations are available to process the traffic of notices by e-mail. The bail application/ bail appeal may be served upon the Government Advocate by e-mail. In case the notice is fully accurate and contains all the relevant annexures, the said service by e-mail shall be sufficient service upon the State.
In the event of service of notice of bail application or bail appeal upon Government Advocate by e-mail, the time limit for effecting service of the said notice by the State upon the victim shall be 72 hours and not 96 hours. The bail application in such cases shall be placed before the Court in 144 hours or 6 days.
The option of e-filing of notice of bail applications/ bail appeals under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, shall be made effective w.e.f. 01-05-2021.

Decision

While allowing the present petition, Court made significant observations upon objective of Bail and the undue delay caused in granting the same under SC/ST (Prevention of Atrocities) Act.[Ajeet Chaudhary v. State of UP, 2021 SCC OnLine All 17, decided on 11-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case Briefs High Courts

Utt HC | ’Fouler the crime higher the proof’; Court allows appeal of convict under Ss. 376 & 511 Penal Code and S. 6 of POCSO Act, acquits him in absence of credible evidence

Uttaranchal High Court: Narayan Singh Dhanik, J., allowed a Criminal Jail Appeal which was filed from the jail against the judgment whereby the appellant had been convicted for the offences under Section 376/511 Penal Code, 1860 and Section 6 of the POCSO Act and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs 25,000 for the offence under Section 6 of the POCSO Act.

The complainant had filed an FIR against the appellant alleging that he had attempted to commit rape on the two and half year’s old daughter of the complainant and had committed sexual assault on her. He further alleged that when he went looking for his daughter along with a companion he found the appellant while he was indulged in committing the alleged offence and took him to the police station. On conclusion of the trial, appellant was convicted and sentenced. Thus, the instant appeal was filed by the Amicus Curiae, Raman Kumar Sah on behalf of the appellant submitting that the prosecution had failed to prove the case against the appellant. He further contended that the victim had not identified the appellant nor the victim in her testimony had named the appellant and that the facts elicited during the cross-examination of the complainant and the companion along with him were totally contrary to the prosecution story. It was further contended that the mother of the victim did not support the prosecution story and was declared hostile. Per contra, the AGA for the State, Manisha Rana Singh submitted that prosecution had produced sufficient and credible evidence and the trial court had rightly convicted and sentenced the appellant.

The Court while allowing the appeal set aside the judgment and order of the Trial Court. The Court assessed the medical examination report of the victim which disclosed that the urethral meatus & vestibule, labia major and labia minor of the victim were found normal and no tear or swelling in the private parts was found and Hymen perineum of the victim was also found intact but the doctor had further stated that a little redness was present in the outer surface of the hymen of the victim and the presence of dried blood stains was also detected on her private parts and these conditions led to opine her that the attempt of sexual intercourse with the victim was made. It accepted all the contentions given by the Amicus Curiae and opined that the opinion of the doctor alone was not enough to connect the accused-appellant with the alleged crime in view of the material on record and in the absence of any credible evidence. The Court while quashing the conviction and sentence stated that,

“In criminal cases, conviction cannot be based upon morality and there must be admissible and credible evidence to base conviction and moreover it is well-settled canon of criminal jurisprudence that ‘fouler the crime higher the proof’ and mandate of law is that the prosecution has to prove the charges beyond all reasonable doubt. A few bits here and a few bits thereon which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question.”[Akash Kumar v. State of Uttarakhand, 2020 SCC OnLine Utt 562, decided on 28-09-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case Briefs High Courts

Utt HC | Sentence of convict case under Ss. 3 and 7 of Essential Commodities Act reduced considering the period already served by him; Court partly allows revision

Uttaranchal High Court: N.S. Dhanik, J., partly allowed a criminal revision which was preferred against the Judgment and order passed by the District and Sessions Judge whereby he had confirmed the judgment and order passed by Chief Judicial Magistrate and also against the judgment and order passed by Chief Judicial Magistrate in a Criminal Case under Section 3/7 of the Essential Commodities Act, whereby the revisionist were convicted for the offence punishable under Section 3/7 of the Essential Commodities Act and sentenced to undergo one-year simple imprisonment and to pay a fine of Rs 5,000.

The informant lodged an FIR alleging therein that on information, the informant came to know that two Nepali people who often smuggling the cement, compost, kerosene oil, etc from Tankpur to Nepal upon their motorcycles. The informant along with other police officials reached the Gandhi Park and seeing two persons who were tying the plastics canes in their motorcycles outside the warehouse of Naresh Chandra Gupta. Both tried to run away, but they were arrested on the spot. From the possession of the accused persons, Jaricanes were recovered and on asking regarding the said recovery, they told that they had purchased the Kerosene oil from the Naresh Chandra Gupta (present revisionist) and 20 litres kerosene oil was also recovered from the warehouse of Naresh Chandra Gupta. After investigation, the charge sheet against the accused revisionist for the offence punishable under Section 3/7 of the Essential Commodities Act was filed. The Counsel for the revisionist, Mr. Bhuwanesh Joshi submitted his arguments only on the quantum of sentence. He submitted that the revisionist had served about 27 days in the jail and that he was a poor person and the matter relates back to the year 2008.

The Court while partly allowing the revision modified and reduced the sentence to three months considering the contention that matter related back to the year 2008 and ends of justice would be sub-served if the jail sentence of the revisionist is reduced adjusting the period already undergone by him, although the sentence of the fine was enhanced from Rs 5,000 to Rs 10,000.[Naresh Chandra Gupta v. State of Uttarakhand, 2020 SCC OnLine Utt 550, decided on 16-09-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case Briefs High Courts

Utt HC | Stating provisions of Probation of Offenders Act, 1958 the Court cancels the remaining sentence of the convict; modifies order in appeal

Uttaranchal High Court: R.C. Khulbe, J., partly allowed an appeal that was filed aggrieved by the Judgment and order passed by Addl. Sessions Judge whereby he had convicted the appellant-Resham Singh under Section 224, Penal Code, 1860 and sentenced him to undergo two years’ R.I. with a fine of Rs 5,000. Appellant Beero Bai was convicted under Section 147, 332/149 and 225/149, Penal Code and she was sentenced to undergo one year’s R.I. in each of these three offences, with a fine of Rs 1,000 under each offence.

Written information was given by S.I., M.C. Srivastava on 01-12-1997 at P.S. Ramnagar. Accordingly, Chick FIR Ex.Ka-9 was lodged at 06:50 A.M. After investigation, Charge-sheet Ex.Ka-15 was submitted against the accused, and accordingly, the cognizance was taken.

The Court while partly allowing the petition stated that the testimony of the witnesses was trustworthy and they had been subjected to lengthy cross-examination but nothing had come out in their evidence which may create any reasonable doubt in their testimony and thus the Trial Court has rightly held that the prosecution has successfully proved the charges against the appellant-Beero Bai beyond a reasonable doubt. The Court relying on the decision of Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, 2001 SCC (Cri) 897 quoted that

“Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as useful and self-reliant members of society without subjecting them to the deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act.”

The Court further stated that the appellant was the first-time offender and the incident seemed to have taken place 23 years ago thus considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the appellant to jail to serve out the remaining sentence instead she should be released on probation in order to reform herself.[Resham Singh v. State of Uttarakhand, 2020 SCC OnLine Utt 504, 27-08-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case Briefs High Courts

Del HC | Convicts in Delhi Prisons to be paid revised wages along with disbursement of arrears

Delhi High Court: Jyoti Singh, J., addressed an issue with regard to revised wages for prisoners in Delhi Prisons.

Purpose of the present petition was to seek directions in order to make payment of wages to the prisoners at revised rates in terms of communication issued by Government of NCT of Delhi.

Sanjay Ghose, ASC appearing for the respondents submitted that an order for the approval of revised wages was passed by the Office of Director General (Prisons) on 23-07-2020, hence the payment shall be made thereof.

On perusal of the above-mentioned Order, Court stated that the convicts would be paid revised wages in terms of the Order passed on 20-06-2019, enhancing the wages and the arrears shall also be disbursed.

Additionally, 25% deduction from wages of the convicts meant for Victim Welfare Fund, has also been suspended till further Orders.

In view of the above, petition was disposed of. [Nitin Verma v. GNCTD, 2020 SCC OnLine Del 870 , decided on 24-07-2020]

Case Briefs COVID 19 High Courts

Guj HC | Out of work, money and food, migrants workers wished to go back to their hometowns, instead were sent to jail: “More the victims, certainly not criminals”

Gujarat High Court: Paresh Upadhyay, J., while addressing a matter with regard to granting bail to the migrant workers who were locked in jails, stated that,

“instead of sending these labourers back to their hometown when they wished to go back due to no money, work and food, they were locked in jails.”

“These migrants are more the victims certainly not criminals.”

Present application was filed for regular bail. He was punishable for the offences under Sections 143, 144, 147, 148, 149, 186, 332, 333, 336, 337, 427 and 188 of Penal Code, 1860 and Section 135(1) of the Gujarat Police Act, Section 3 of Epidemic Act, 1897, Section 51(b) of the Disaster Management Act and Section 3(1) and 3(2)(e) of the Prevention of Damage to Public Property Act.

Advocates on behalf of the applicants submitted that of the total 33 applicants, 32 are from the State of Jharkhand and one is from the State of West Bengal.

The stated applicants were migrant workers and in the new lockdown they were all without any work, money and food, thus under the said circumstances they wished to go back to their home which led to an untoward incident.

Since 18-05-2020, applicants are in jail.

“…fit case to exercise the discretion to release the applicants on bail, in exercise of powers under Section 439 of the Code of Criminal Procedure, 1973.”

-High Court

Court noted that instead of sending the above-stated labourers back to their home towns when they were out of money, food and work, they were locked up in the jails.

In view of the above, bench said that,

Applicants are more the victims, certainly not the criminals. Thus, the said applicants immediately needs to be set free on furnishing person bond without any conditions.

Thus, the application has been allowed. [Ravi v. State of Gujarat, 2020 SCC OnLine Guj 930, decided on 23-06-2020]

Case Briefs COVID 19 High Courts

All HC | Persons, who have completed their quarantine period and have tested negative cannot be further detained in Quarantine Centers against their wishes

Allahabad High Court: A Division Bench of Shashi Kant Gupta, and Saurabh Shyam Shamshery, JJ., asked the State Government to ensure that persons who have tested negative and completed their quarantine period should be released from the Quarantine Centres.

Present matter was registered on a letter received by an Advocate, Shaad Anwar seeking release of members of Tablighi Jamaat quarantined in Uttar Pradesh.

Pursuant to Court’s Order dated 21st May, 2020, Advocate Shaad Anwar furnished the details of 45 members of Tablighi Jamaat who were sent to the quarantine centre within the State of Uttar Pradesh.

The said matter was again taken up on 29th May, 2020 by which State was directed to furnish all the details pertaining to the members of Tablighi Jamat, who were quarantined, released after completing the quarantine period or have yet not been released despite completing tenure of quarantine. Further the State was also asked to give reasons for not release of such persons.

Update in the matter

State in today’s hearing provided the details that, total of 3001 Indians as well as 325 foreigners who were the members of Tablighi Jamaat were quarantined.

Further, all the 3001 members of Tablighi Jamat, who were Indians, have been released after competing the quarantine period, however, 21 members out of them have been detained in Jail, as such, none of the members of the Tablighi Jamat are in Quarantine Centers.

Additional Advocate General, Manish Goyal submitted that members of Tablighi Jamaat who were quarantined in the centres within the State of U.P. have returned to their respective States barring a few who have made their own private arrangements for stay.

Thus, in view of the statement made by the Additional Advocate General Court accepted the stand of State, however it would be open for the petitioner to approach the appropriate forum in case it discovers later on that some members of Tablighi Jamat are still detained in the Quarantine Center despite completing the requisite period of quarantine.

In a parting remark, Court added that,

Persons, who have completed their quarantine period and have tested negative can not be further detained in the Quarantine Centers against their wishes. It would be in violation of personal liberty under Article 21 of the Constitution of India.

Thus, State Government is directed to ensure that persons who have completed their quarantine period be released from the Quarantine Centres provided they have tested negative.

Bench also directed the Chief Secretary, State of Uttar Pradesh to set up a three members committee in every district to ensure smoother, greater and more effective functioning of the Quarantine Centers.

With the above observations, petition was disposed of.[Shaad Anwar v. State of U.P., 2020 SCC OnLine All 682 , decided on 30-05-2020]

Case Briefs High Courts

HP HC | Rule is bail and not jail, object of bail is neither punitive nor preventative — Reiterated

Himachal Pradesh High Court: Sandeep Sharma, J. entertained a bail application where the accused was charged under Sections 363 and 376 IPC along with Section 4 of POCSO. The accused applied for a regular bail which was granted by the Court on certain conditions.

Factual matrix of the case was that the complainant lodged an FIR that her daughter had eloped with an unknown person, also gave all the details related to the identity of the person and information to trace him. Police filed an FIR for kidnapping. Eventually, police traced the person and the girl i.e the prosecutrix with the help of relevant information. Further, a case under Section 376 was also registered on the basis of the statements of the prosecutrix recorded under Section 164 CrPC.

Sudhir Bhatnagar, Advocate General for the State stated that challan filed by the police was fair and no leniency should be granted to the accused because of the gravity of the offence. It was further contended that there was nothing on record to prove that prosecutrix was a consenting party to the act. It was also brought to notice of the Court that because of the age of the prosecutrix the consent was immaterial as she was a minor.

On the other hand, the counsel for the applicant, Anirudh Sharma and Piyush Rathore, submitted that on a bare perusal of initial complaint and the statements recorded, nothing on the face suggested that accused kidnapped her, rather she of her won volition joined the company of the bail petitioner. They further contended that the prosecutrix had prior acquaintance with the bail petitioner and as such, it cannot be said that he took undue advantage of her innocence, sexually assaulted her against her wishes. The counsel representing the bail petitioner further contended that challan stands filed in the competent Court of law and present bail petitioner being the first offender deserve to be enlarged on bail.

The Court considered the statements recorded under Section 164 CrPC, and found that the prosecutrix had prior acquaintance with bail petitioner and they had been meeting frequently. The Court also observed that there was nothing to show that the prosecutrix was compelled to go along the accused. The Court also observed that the prosecutrix in her statement had specifically mentioned that she was taken to a particular place and family members of the accused were also present there, hence, the Court from the series of events anticipated that prosecutrix had ample of time to raise hue and cry if she was in any kind of threat or was sexually abused but she didn’t. It was also observed that though the age of the prosecutrix was 17 but her conduct made Court realized that she understood the consequences of the act.

It was further held that investigation was complete and no material was placed on record by the IO that suggested any offence. The Court relied on the judgment in Dataram Singh v. State of U.P., (2018) 3 SCC 22, where the Supreme Court held that a fundamental postulate of criminal jurisprudence is the presumption of innocence. further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer.

The Court noted that main purpose of bail was to secure the attendance of the accused in the trial and the proper test applied in the solution of the question was whether bail should have been granted or refused depended upon whether the party was up for trial and it should not be dealt as a punishment. Hence bail was granted to the accused.[Manoj Kumar v. State of Himachal Pradesh, 2019 SCC OnLine HP 1341, decided on 26-08-2019]

Case Briefs High Courts

Sentence reduced as case was old and applicant had already spent some days in jail

Chhattisgarh High Court: A Single Judge Bench comprising of Vimla Singh Kapoor, J. reduced the sentence of the applicant as he had already spent some time in the jail.

The applicant through his counsel Manoj Mishra has challenged the order whereby he has been charged under Sections 456 and 354 IPC with RI for six months including a fine for the outrage of modesty which further has been affirmed by an appeal. It was contended that the conviction has not been made on merits and the fact that the case was quite old and the applicant has already remained in jail for some time.

Considering the sentence and the fact that the incident had taken place in the year 2002 along with the fact that the applicant was in jail for some days and was leading a well-settled life with responsibilities, the Court thinks it proper to reduce the sentence imposed to the period already undergone.

Accordingly, the revision petition stood allowed in part. [Lal Sai v. State of Chhattisgarh, 2018 SCC OnLine Chh 670, decided on 17-12-2018]

Case Briefs High Courts

Beant Singh Murder Case | No convict can claim to be placed in a jail of his choice: Delhi High Court

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ., dismissed a writ of habeas corpus wherein the petitioner sought directions to the respondents to release him from, what he claimed, illegal detention at Tihar jail.

The petitioner was a convict in the Sardar Beant Singh (CM of Punjab) Murder case. The Punjab and Haryana High Court had sentenced him to suffer life imprisonment. Earlier, the petitioner, while lodged in Budhail jail in Chandigarh, had dug a tunnel and absconded. He was subsequently arrested in Delhi in another case. As he was a hardened criminal and a high-risk convict, learned Chief Metropolitan Magistrate directed the authorities of Tihar jail to keep the petitioner in high-risk cell where he had been lodged since. Learned counsel for the petitioner submitted that he was undergoing sentence as awarded by Punjab and Haryana High Court so he should be transferred to that State.

The High Court found no merit in the petition. The Court observed that no constitutional or statutory provision was brought to notice which mandates that as a life convict, the petitioner had a right to be imprisoned in a particular prison, in a particular state. No convict can claim that he should be placed in a prison situated at a place of his choice. It is the responsibility of the State to ensure that convict is kept in a safe and secure environment so as to ensure that neither he suffers from any risks or dangers, nor he is in a position to pose any risk or dangers or escape from custody. For such and other reasons, as discussed by the High Court, the petition was dismissed as sans merit. [Jagtar Singh Hawara v. State (NCT of Delhi),2018 SCC OnLine Del 10158, dated 23-07-2018]

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Analysis and Decision

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Analysis, Law and Decision

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Factual Matrix

Crux of the matter

Question for consideration

Analysis and Discussion

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The need for a further classification

The great schism in bail jurisprudence

Rationale behind the distinct treatment of economic offenders

Conclusion

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Section 436-A CrPC

Gamut of the Provision

The First Proviso of Section 436-A CrPC

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Issue

Observations

Decision

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Update in the matter

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