Jail

Op EdsOP. ED.

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 BriefsHigh Courts

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

  1. 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?
  2. 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:

  1. Provisions with an unreasonably large time for maturation of a bail application;
  2. Procedures where the time period for hearing of a bail application is undefined;
  3. Practices causing indefinite deferment of hearing of a bail application.
  4. 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

  1. 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.
  2. 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.
  3. The victim will be entitled to 72 hours after the receipt of notice of bail.
  4. 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.
  5. 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.
  6. 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”.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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]

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Case BriefsHigh Courts

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]

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Case BriefsHigh Courts

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]

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Case BriefsHigh Courts

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]

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Case BriefsHigh Courts

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 BriefsCOVID 19High Courts

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 BriefsCOVID 19High Courts

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]

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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 BriefsHigh Courts

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 BriefsHigh Courts

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]