Case BriefsSupreme Court

Supreme Court: In a major verdict, the bench of UU Lalit and KM Joseph*, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Upon being found guilty instead of sentencing the convict to a term in prison and in lieu of incarceration, as a condition of probation, the convict is compelled to confine himself to his place of residence. Such confinement is called House Arrest.

According to the data published by the National Crime Records Bureau (NCRB), there were a total number of 1350 prisons as of the year 2019, consisting of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails.

The occupancy rate of these prisons has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails. The figure of 4,78,600 prisoners as on 31st December, 2019 is the figure obviously after considering the number of prisoners who would have been inter alia bailed out. The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05 per cent of the total no. of prisoners. Delhi had the highest occupancy rate of 174.9 percent followed by Uttar Pradesh which came second with 167.9 percent. This means that in Delhi a prison which was meant to be occupied by 100 persons, was used for accommodating 174 persons.

Also, a very large sum (Rs. 6818.1 crore) was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer.

[Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, decided on 12.05.2021]


*Judgment by: Justice KM Joseph

For Appellant: Senior Advocates Kapil Sibal and Nitya Ramakrishnan, Advocate Shadan Farasat

For Respondent: Additional Solicitor General S.V. Raju

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J. heard the instant petition against the impugned order passed by District Magistrate (the detaining authority), by which the petitioner had been detained in preventive detention to preventing him from indulging in the activities which were prejudicial to the security of Union Territory. The Bench expressed,

“Either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority.”

The impugned order had been passed by the detaining authority on the basis of material supplied by the SSP. As per the dossier supplied by the police, the petitioner had connections with one foreign militant namely Maz Bahi and was providing assistance to the militants of banned outfit Hizbul Mujahideen. It had been alleged that the petitioner was instrumental in strengthening militancy network in the area of Rafiabad. For which he had been apprehended in connection with case FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act which is still under investigation.

The detaining authority, on the basis of dossier of activities arrived at satisfaction that the petitioner though under judicial remand, was every likely to indulge in subversive activities if he is admitted to bail, therefore, it was imperative to put him under preventive detention.

The petitioner has assailed the impugned order of detention, inter alia, on the following grounds:

  1. The grounds of detention were vague and indefinite and no prudent man can make an effective representation against these allegations;
  2. At the time of passing of the detention order, the detenue was already in custody in and he had neither applied for bail nor was bail otherwise due to him. The detaining authority despite having knowledge of the custody of the detenue has not spelled out any justified and compelling reasons to detain the petitioner under preventive detention;
  3. That the relevant material, like copy of dossier, FIR, statements under Section 161 and 164-A Cr. P. C, seizure memos etc. which had been relied upon in the grounds of detention, were never supplied to him to enable him to make an effective representation nor he was made aware of his right to make representation against his detention to the detaining authority or the government.

The Bench observed that the petitioner had been detained under preventive detention for his alleged involvement in subversive activities which led to the registration of FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act. In the aforesaid FIR, the petitioner was released on bail by on 06-02-2020, whereas Superintendent of Police, who forwarded the relevant record including dossier and other connected documents to the detaining authority, did not bring the factum of petitioner having been released on bail to the notice of detaining authority. It was because of this omission on the part of Senior Superintendent of Police, the detaining authority had categorically stated in the grounds of the detention that the detenue was under judicial remand and that there was every likelihood of his being admitted to bail. The detaining authority had also noted that there was well-founded apprehension based on report received from field information that the petitioner, if released on bail, would again indulge in subversive activities.

The Bench opined that either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority. The Bench expressed,

“At the time of passing of the detention order, the detaining authority was not aware whether the detenue was in police/judicial custody or he stood released on bail. It cannot be denied that it was a relevant information that was required to be produced before the detaining authority to enable it to derive subjective satisfaction with regard to necessity of placing the petitioner under preventive detention.”

Hence, the non-application of mind by the detaining authority was fatal and affected the root of the detention and, therefore, the Bench held that the impugned order of detention was worthy of being quashed. Accordingly, direction were issued to the respondents to release the detenue from the preventive custody.

[Riyaz Khaliq Parray v. UT of J&K, 2021 SCC OnLine J&K 311, decided on 27-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Adv. Wajid Haseeb

For UT of J&K: AAG Asifa Padroo

Hot Off The PressNews

Cause of Suo Motu Cognizance

The National Human Rights Commission has taken suo motu cognizance of a media report that in Etah district of Uttar Pradesh, two policemen got involved in a squabble at a ‘dhaba’ (eatery) over payment of bill for the food they consumed. The policemen then falsely implicated and arrested ten people including the brother of the owner of the eatery and eight customers in an alleged encounter with them. The persons reportedly arrested by the police are presently lodged in judicial custody.

To whom did NHRC issue a notice?

The Commission has issued a notice to the Director General of Police, Uttar Pradesh calling for a report in the matter within six weeks. A copy of the these proceedings has also been sent to the Member Secretary, Uttar Pradesh State Legal Aid Services Authority to ensure free legal aid to the arrested people, if not provided.

Violation of Human Rights?

Issuing the notice the Commission has observed that the contents of the media report, if true, raise serious issue of violation of Human Rights. The incident, apparently, is a classic example of failure of entire system of checks and balances. Hence, fair investigation is required to be conducted to know where the policemen could manage to procure these items.

What did the media report consist of?

According to the media report, carried on 23.03.2021, the owner of the eatery alleged that on 04.02.2021, two policemen, who were on duty, came and had food at his dhaba and later refused to pay the bill of Rs.400/-. The policemen, reportedly offered only Rs.80/- and the brother of the owner asked them to pay at least Rs.200/-. Some of the customers, present at that time, also asked the policemen to pay the bill. An argument reportedly took place and the policemen started beating the brother of the owner of the eatery. After this the policemen left the place.

After some time, around fifteen policemen reportedly arrived in three vehicles, pointed guns and took away the brother and the cousin of the eatery owner, as well as eight customers with them to the Kotwali (Rural) Police Station and an FIR, was registered against them.

The owner of the eatery, who is specially-abled, was reportedly, spared by the police. The persons arrested by the police are lodged in judicial custody and as per the FIR, ten people, part of a gang, were hatching a plan to commit a crime of loot and the police caught them after an encounter. Six illegal weapons, eighty liters illicit liquor and 2 kg contraband had been reportedly projected as recovered from the persons arrested by the police.

The Additional Director General of Police, Uttar Pradesh has reportedly asked the Senior Superintendent of Police, Etah to get an investigation conducted in a time bound manner. The District Magistrate of Etah has also ordered probe into the incident as mentioned in the news report. It is also mentioned in the news report that the Station House Officer of the Kotwali Dehat police station has been placed under suspension.


National Human Rights Commisssion

Hot Off The PressNews

In a case of a death in judicial custody, the National Human Rights Commission, India has set aside the conclusion of an Additional Chief Metropolitan Magistrate of Ahmedabad that it was natural.

On the basis of the material on record, NHRC has held that the Under Trial Prisoner died due to the negligence and torture by the jail officials of Sabarmati Central Prison, Ahmedabad on 29-05-2017 and that the Judicial Enquiry Report is shady in nature and hence, cannot be relied upon.

Further, expressing serious concern over the order of the concerned judicial officer, the Commission has directed its registry to bring the matter to the notice of the Chief Justice of the Gujarat High Court for consideration of taking necessary action on the presence of such Judicial Officers.

The Commission has noted in its proceedings in the matter under case no Case No.487/6/1/2017-JCD that “it is very surprising & shocking to know that though 22 ante mortem injuries over the body of the deceased were clearly reflected in post mortem report, but still enquiry magistrate i.e. ACMM, Ahmedabad, Gujarat had stated that no injury was found to be present on the deceased. The Chief Justice of Gujarat High Court has to seriously consider the presence of such Judicial Officers in public domain.”

The NHRC has also issued a notice to the Chief Secretary, Govt. of Gujarat, to show cause why not an interim relief of Rs 3 Lakh should not be recommended to be paid to the Next of the Kin, NoK of the deceased Under Trial Prisoner, as his human rights were violated by the delinquent Jail officials, Director General of Police, Gujarat has been asked to submit a detailed report in the matter along with criminal case registered and progress in the matter. The response is expected within four weeks.

The Commission, as per its standing guidelines, had registered the case on the basis of an intimation from Supdt. Central Prison Ahmedabad Gujarat on 31.05.2017 regarding the death of UTP Ashok @ Lalit on 29.05.2017.

On the directions of the Commission, its Investigation Division informed that the victim under trial prisoner was in the custody of Sabarmati Central Prison, Ahmedabad since 27.05.2017. He was arrested in case no. 5261/15 u/s 66(1)(b), 65(a) Prohibition Act by PS Maghaninagar. Within two days on 29/5/2017, he fell ill and was sent to the Civil Hospital, Ahmedabad for treatment where he died on the same day at 16.38 hrs.

The postmortem was done by a panel of four doctors, which revealed 22 ante-mortem injuries from head to toe on the person of the deceased. The cause of death was kept preserved. Later, after viscera & HPE, the FCOD was given as death due to shock and hemorrhage as a result of injuries sustained over the body. However, in the magisterial enquiry the ACMM, Ahmedabad, Gujarat concluded that the health screening report, as well as inquest report, revealed that no injury was present on the person of the deceased. During the magisterial enquiry, the family members did not complain of anything and based on the statements of doctors & jail officials, so he concluded that there was no direct or indirect evidence that the deceased was physically or mentally tortured or ill-treated during custody and without any evidence.

The Commission noted that the Under Trial Prisoner was normal at the time of entry into the jail and died within two days of his entry into the jail. The strong scientific & biological forensic evidence cannot be undermined as far as the cause of death is concerned. This is also a fact that he was in jail for the past two days before his death in the hospital. Hence, there is no point in accepting that his death was natural. This is a clear case of unnatural death in the judicial custody of Sabarmati Central Jail & hence State is vicariously responsible for the same. Further, the Commission held that the statements of the family members of the victim after his death bear no relevance as the victim was in jail and the family members may not have met after the injuries, when he was alive.


National Human Rights Commission

[Press Release dt. 08-01-2021]

Case BriefsHigh Courts

Orissa High Court: S. K. Sahoo J., ordered the petitioner to be detained in judicial custody and rejected the prayer sought.

The present application was filed by the petitioner for interim bail on the ground that his wife is suffering from multiple types of diseases and the doctor advised her to take complete rest due to COVID-19 pandemic.  A medical prescription and medical fitness certificate certifying the medical condition of one patient namely Santosini Kanhar, who is aged about twenty-five years and she is a female and wife of the petitioner.

Counsel for the State raised doubts about the authenticity of the certificates, pursuant to which vide order dated 09-12-2020 the Deputy Commissioner of Police, Cuttack was directed to depute a responsible Senior Police Officer in the rank of Deputy Superintendent of Police to enquire into the matter by examining the doctor concerned, the O.P.D. register etc. and furnish a report to this Court regarding the authenticity of such documents.

The report stated that the medical documents enclosed with the interim application have been forged and fabricated.

The Court thus observed that as per Section 2(c) of the Contempt of Courts Act, 1971, ‘criminal contempt’ means, inter alia, “the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

The Court further observed that law is well settled that anyone who takes recourse to fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. If a forged and fabricated document is filed in Court to get some relief, the same may amount to interference with the administration of justice and the conduct is punishable as contempt of Court. The fabrication and production of false document can be held to be interference with the due course of justice. Any interference in the course of justice, any obstruction caused in the path of those seeking justice are an affront to the majesty of law and therefore, the conduct is punishable as contempt of Court. Law of contempt is only one of many ways in which the due process of law are prevented to be perverted, hindered or thwarted to further the cause of justice. Due course of justice means not only any particular proceeding but a broad stream of administration of justice. Therefore, due course of justice used in section 2(c) or section 13 of the Contempt of Courts Act, 1971 are of wide import and are not limited to any particular judicial proceeding.

The Court held that Gumesh Mallik has committed contempt of Court and hence has to file show cause as to why necessary action shall not be taken against him for committing criminal contempt of Court under the provisions of the Contempt of Courts Act, 1971.

In view of the above, petition was dismissed.[Chandramani Kanhar v. State of Odisha,  2020 SCC OnLine Ori 930, decided on 21-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: Lalitha Kanneganti, J., addressed a matter wherein the accused was arrested without warrant alleged to have posted certain material amounting to promote enmity, hatred and ill-will.

The instant criminal petition was filed to quash the FIR wherein the petitioner was accused 1 was alleged to have committed the offences punishable under Sections 120-B, 153-A, 505(2) of Penal Code, 1860.

Respondent 2 who is the Social Media Coordinator of MLA of Mangalagiri Constituency lodged a complaint alleging that the petitioner who belonged to Telugu Desam Party and Admin of Neti Andhra.com posted certain material on the website by promoting enmity, hatred and ill-will between different groups on the ground of political propaganda with a conspiracy by using the name of Alla Ramkrishna Reddy, MLA of Mangalagiri Assembly Constituency and Advisor to Government Ajay Kallam and requested to take action against the petitioner.

In light of the above complaint, the present crime was registered.

Petitioners Counsel submitted that the investigation was politically motivated and has been conducted with a pre-determined and pre-meditated objective to arm-twist, harass and humiliate the petitioner by depriving of his right to free speech and expression.

The said crime was registered without issuing any notice under Section 41-A CrPC, since all the offences were punishable below 7 years and remanded to judicial custody.

Counsel further added that the act of the police in arresting the accused is in clear violation of the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

This Court and Supreme Court in catena of cases held that in order to constitute the ingredients of Section 153-A of IPC, it is necessary that at least two such groups or communities should be involved. Merely enticing the feelings of one community or group without any reference to any other group cannot attract the offence under Section 153-A IPC.

In the instant case, there were no two groups involved as per Section 153-A IPC. The Advisor to the Government and the MLA group cannot be construed as two groups.

Section 505(2) of IPC: Statements creating or promoting enmity, hatred or ill-will between classes.

The counsel for the petitioner submitted that in light of the law laid down by Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 that allegations in the complaint prima facie do not constitute the offences punishable under Section 505(2), 153A and 120B of IPC.

Supreme Court in Arnesh Kumar’s case observed that arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers as well as the police must know about this. The need for caution in exercising the drastic power of arrest has been emphasized time and again.

High Court observed that, in light of the law laid down in Arnesh Kumar’s case, even though the punishment for the offence is below 7 years, the discretion is with the police officer either to arrest the accused or to issue notice contemplated under Section 41-A CrPC.

Further, the Bench noted that, while authorising the detention the magistrate shall record reasons and failure to comply with the directions shall apart from rendering the police officer concerned for departmental action, he shall also be liable for Contempt of Court to be instituted before the High Court.

Even the magistrate will be liable for departmental action by the High Court. 

“Who will police the police” when the police are giving go-by to all guidelines while arresting the accused and producing for remand, the Magistrate shall not mechanically authorise the remand, but shall satisfy that there are sufficient grounds supported by material on which the accused need to be remanded. 

— Justice Krishna Ayyar

In spite of the clear guidelines by the Supreme court, some of the police officials continue to make indiscriminate arrests, immediately after registering the complaint without proper investigation.

Prima Facie, the Court opined that the reasons stated in the remand report were not in consonance with the guidelines issued by the Supreme Court, therefore Bench invited a report along with the record from the magistrate on what basis Section 41A of CrPC was dispensed with and the accused was remanded.

All the further proceedings shall stay in view of the above discussion.

Matter to be posted on 26-11-2020.[Jangala Sambasiva Rao v. State of A.P., IA No. 2 of 2020, decided on 28-10-2020]

Hot Off The PressNews

The National Human Rights Commission issued notice to the Chief Secretary, Director General of Police and the Director-General of Prisons, Madhya Pradesh after taking suo motu cognizance about the allegations made by women on five cops for gang rape in lockup.

It is mentioned in the news report that a 20-year-old woman has levelled allegations that she was kept in lock-up for 10 days in the month of May this year and was subjected to rape by 5 police personnel including the Police Station Incharge and SDPO of Mangawan area of Rewa district of Madhya Pradesh. The woman, as mentioned in the news report, was an accused in a case of murder and presently she is lodged in judicial custody. The incident occurred in the month of May and it came to the knowledge of the District Judge after a period of five months. Even the prison warden did not have the courage to report the matter to the higher authorities.

It is further added that as alleged by the victim woman, she was subjected to rape between 09-05-2020 to 21-05-2020 while the police contradict, to be arrested on 21-05-2020. The female constable had protested at that time but she was rebuked by her seniors.

The Commission considered the vulnerable position of the victim. She was in police custody when she was allegedly subjected to utmost cruelty and sexual assault by the 5 police personnel. Even a protest made by a female police official went in vain. Very serious allegations have been levelled by the victim woman. Public servants from the law enforcement agencies, who are supposed to safeguard the citizens especially the women and the people from the vulnerable classes of the society have allegedly committed the heinous crime against a woman in their custody.

The Commission directs that the matter may be investigated by a senior police officer, not below the rank of the Deputy Inspector General of Police.


National Human Rights Commission

[Press Release dt. 19-10-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., allowed an application that was made in order to reduce the amount of sureties for bail. The petitioner was in judicial custody under Sections 8/20 of the Narcotics Drugs and Psychotropic Substances Act, 1985, had challenged the order passed by the Special Court Dehradun, by which, his request to reduce the amount of sureties had been rejected.

The applicant was enlarged on bail by this Court, but he could not get his freedom back because he could not arrange for sureties. D.A.G. for the State, V.K. Gemini, had argued that applicant was a resident of Uttar Pradesh and a commercial quantity of charas was recovered from him. If he was released on bail, he may not appear. But after orders of the Court he was granted bail he was required to submit sureties by the concerned court, but as stated, he could not manage the sureties consequently he moved an application from jail that the amount of sureties may be reduced, but this application was rejected by the court concerned. Thus, the instant application was filed.

The Court while relying on the judgment in Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47, quoted that,

“It is interesting that American criminological thinking and research had legislative response and the Bail Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made certain observations at the signing ceremony:

Today, we join to recognize a major development in our system of criminal justice : the reform of the bail system.

This system has endued-archaic, unjust and virtually unexamined -since the Judiciary Act of 1789.

The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.

How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty.

He does not stay in jail because any sentence has been passed.

He does not stay in jail because he is any More likely to flee before trial.

He stays in jail for one reason only-because he is poor . . . .”

The Court while reducing the amount of the sureties disposed of the application observed that they cannot deny freedom to a person just because he is poor.[Ajeet Pal v. State of Uttarakhand, 2020 SCC OnLine Utt 537, decided on 10-09-2020]


Suchita Shukla, Editorial Assistant has put this story together.

Hot Off The PressNews

Narcotics Control Bureau (NCB) had sought 14 days Judicial Custody of Actress Rhea Chakraborty for being involved in the procurement and distribution of Drugs.

According to the media reports, She has been allegedly charged for Sections 8(c), 20(b) (ii), 22, 27(A), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

Her Bail plea was also rejected.

Rhea was summoned and her voluntary statement was recorded under Section 67 of NDPS Act on 06-09-2020, 07-09-2020 and 08-09-2020.

NCB states that Rhea is an active member of the drug syndicate connected with drug supplies.


Here’s an explainer for the Sections under which Rhea Chakraborty has been charged:

Section 8(c) of the NDPS Act:

8Prohibition of certain operations.—No person shall—

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.

1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]

Section 20(b) (ii) of NDPS Act, 1985:

Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—

1[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to clause (b),—

(Aand involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;

(Band involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(Cand involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 27(A) of the NDPS Act:

Punishment for financing illicit traffic and harbouring offenders.—Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viii-a) of Section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 29 of the NDPS Act:

29Punishment for abetment and criminal conspiracy.—(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracyand notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which—

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.


Image Credits: Hindustan Times

Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., dismissed a bail application of a woman who was involved in six murder cases.

Petitioner was accused of offences punishable under Sections 110, 120(B), 201, 302, read with Section 34 of the Penal Code, 1860 and under Section 2 read with  6(2) of the Poison Act.

For the above-stated offences, the petitioner has been arrested and is in judicial custody since 2019.

Prosecution Case

Petitioner who is also the 1st accused with an intention to kill the minor daughter of her second husband poisoned the child through food and killed the said child by administering cyanide which was procured with the aid and assistance of the accused 2 and 3.

For the ulterior intention and motive to marry Shaju Sakhariyas, who is a teacher and having a fixed and regular government salary, the 1st accused plotted a plan to do away with the little daughter of Shaju.

The child was calculated as a burden in the future by the petitioner.

After about 1.5 years of the above incident, 1st accused killed the first wife of the said Shaju by administering cyanide and thereafter married Shaju within a short span of time.

Petitioner approached this Court with a bail application.

Petitioner’s Counsel submitted that the petitioner being a woman is entitled the benefit of proviso to Section 437(1) CrPC. The said proviso states that,

‘the Court may direct that a person referred to in Clause(i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm’.

Court stated that the word ‘may’ used in proviso itself shows that its the discretion of the Court to either grant bail or not.

Hence, simply because the petitioner is a woman, she is not entitled to bail and in the present matter, allegations against the petitioner are very serious.

Court further considered the contention of the Public Prosecutor that the petitioner had attempted to commit suicide inside the jail and releasing the petitioner at this stage would be dangerous.

Bench stated that the petitioner is involved in 6 murder cases and the modus operandi of the petitioner is almost the same in all the cases.

Therefore, considering the facts and circumstances, the petitioner is not entitled to bail under Section 439 CrPC.  [Jollyamma Joseph v. State of Kerala, 2020 SCC OnLine Ker 3265, decided on 14-08-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani J., granted bail to an accused in a money-laundering case involving a sum of more than INR 2000 crores. Upholding the legal principle of the presumption of innocence of an accused until proven guilty, the Court found that in the absence of compelling grounds and reasons, the under-trial accused could not be detained in judicial custody.

The applicant sought regular bail after being arrested in the complaint case arising from an Enforcement Case Information Report (ECIR). According to the Enforcement Directorate’s (ED) allegations, the applicant owns 50% shares in a company which in turn owns 50% of an RBI recognized non-banking financial company Religare Enterprises Ltd. (REL). It is alleged that the applicant misappropriated money, amounting to over INR 2036 crores, lent by REL to entities controlled or owned by the applicant.

The Court opined that the applicant was not in a position to tamper with evidence, since the allegedly offending transactions cannot be altered by virtue of their being reflected in several records, including those of regulatory bodies such as the RBI, SEBI, etc. and also because all records of such transactions had already been seized by the ED. Since the ED had confirmed that it would not interrogate the applicant while he was in judicial custody, it found the applicant’s detention unreasonable, especially as there was no foreseeable timeline within which the ED was to complete its investigations.

Bench held that the applicant had deep roots in society and was not a flight-risk, so “no purpose would be served by keeping him in judicial custody.” The nature of an offence should have a limited role in determining the merits of a bail application, and even though the applicant is accused of committing an offence whose financial implications are large in quantum, such losses cannot be compensated for by keeping the under-trial applicant in prolonged custody. It emphasized on the importance of time-bound investigations, stating that “criminal investigation is not a metaphorical fishing-rod handed to an investigating agency, to indulge its penchant for ‘fishing around’ for evidence.”

Highlighting the dire situation of undertrials in prisons, it reiterated Sanjay Chandra v. CBI’s (2012) 1 SCC 40 ruling that every man is innocent until duly tried and found guilty, and that it would be inappropriate to refuse bail to an undertrial simply to give him “a taste of imprisonment as a lesson.” It approved the bail application and directed the applicant to be released, subject to certain conditions laid down in the order. [Shivinder Mohan Singh v. Directorate of Enforcement, 2020 SCC OnLine Del 766 , decided on 23-07-2020]

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Jharkhand High Court: Rajesh Shankar J., held that the petitioner was in judicial custody for more than a year; hence he is inclined to enlarge the petitioner on bail.

The petitioner was accused under Section 376 of the Penal Code, 1860.

The counsel for the petitioner, Om Prakash Singh submitted that the bail application of the petitioner was earlier rejected by this Court vide order dated 25-07-2019 and the petitioner has renewed his prayer for regular bail primarily due to the reason that he is in judicial custody since 18-01-2019 and only 03 charge-sheet witnesses out of 11 have been examined in the trial. The victim of the case has already been examined in the trial as PW-1. Hence they prayed for regular bail on ground of length of judicial custody

The counsel for State, Ranjit Kumar opposed the prayer.

The Court held that the victim of the case has already been examined in the trial and that the petitioner was in judicial custody for more than a year, hence he is inclined to enlarge the petitioner on bail on furnishing bail bond of Rs 20,000 with two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge-III, Chatra subject to the condition that the petitioner shall co-operate in the trial and shall appear before the trial court on each and every date fixed in the trial till conclusion of the same.

In view of the above, the bail was granted. [Jaglal Bhuiyan v. State of Jharkhand, 2020 SCC OnLine Jhar 216, decided on 28-02-2020]

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Bombay High Court: A Division Bench of S.S. Shinde and N.B. Suryawanshi, JJ., dismissed a petition whereby the petitioners sought their release by invoking the writ of Habeas Corpus on the ground that their judicial custody was authorised beyond a period of 15 days he designated court, which is contrary to the mandate of Section 309(2) CrPC.

The petitioners were accused in a criminal case registered under various provisions of IPC and the MPID Act, 1999. The main ground pressed in to service by Subhash Jha and Harekrishna Mishra, Advocates for the petitioners, was that the proviso to Section 309(2) CrPC provides for remand of the accused of a term not extending 15 days at a time. In the present case, from time to time, the judicial custody of the petitioners was extended beyond 15 days, which according to them was in violation of Article 21 of the Constitution. Per contra, M.M. Deshmukh, APP for the State, opposed the writ petition.

Perusing Section 309(2) along with its first proviso, the High Court noted that the proviso to Section 309(2) CrPC carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under Section 309(2) CrPC for a term exceeding 15 days at a time.

However, applying the settled principles of interpretation of statutes, the Court went on to observe: “In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.” It was further stated: “…on plain reading of section 309(2) of CrPC and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of CrPC to put limitation on the power of the trial Court while exercising the powers under section 309(2) of CrPC”

Also, relying on Saurabh Kumar v. Koneila Jail, (2014) 13 SCC 436 and State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, the High Court reiterated that writ of Habeas Corpus is not maintainable against the judicial order remanding the accused into the custody and appropriate remedy is to seek bail.

The High Court, therefore, held that the petitioners were entitled to the writ of habeas corpus and their remedy lie elsewhere. Resultantly, the instant petition was dismissed. [Harshad Dinanath Bari v. State of Maharashtra, 2019 SCC OnLine Bom 5701, decided on 18-12-2019]

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Kerala High Court: Raja Vijayaraghavan V., J. allowed this application of bail filed under Section 439 of the Code of Criminal Procedure, 1973.

The petitioners of this application are the accused of Crime No. 81 of 2019. The crime was registered by the Excise Enforcement and Anti Narcotic Drugs Special Squad, Kollam under Sections 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 60(3) of the Abkari Act. The counsel for the applicants contended that it has already been 60 days from the time they were remanded to judicial custody on 12-10-2019 and still the final report has not been laid even after completing the investigation.

Section 20(b)(ii)(B) of the NDPS Act states that if anyone produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis and the quantity involved is lesser than commercial quantity but greater than small quantity then that person shall be punished with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.

After hearing to the counsel for the petitioner, C. Rajendran, and to the counsel for the respondent, Ramesh Chand, Public Prosecutor, the Court held that the applicants have the absolute right to be released on default bail. Hence, the Court granted bail. The applicants were to be released on bail when each of them executes a bond a Rs 1,00,000 with two solvent sureties each for the sum to the satisfaction of the court. Though the Court laid down some conditions:

  1. The applicant will have to appear before the Investigating Officer on every Saturday between 10.00 a.m. and 1.00 p.m. for a period of 2 months.
  2. They cannot intimidate/attempt to influence the witness, or tamper the evidence
  3. Shall not commit any similar offence.
  4. Surrender their passport before the court below or if they do not the same, they shall file an affidavit to the effect within 5 days of their release.
  5. In case of violation, the jurisdictional court will have the power to cancel their bail. [Shafeek v. State of Kerala, 2019 SCC OnLine Ker 5347, decided on 12-12-2019]
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Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]

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Madras High Court: N. Anand Venkatesh, J. dismissed a petition filed by Prisoners Right Forum against the order of the Chief Judicial Magistrate whereby he had dismissed a complaint filed in the matter of the death of a prisoner in judicial custody. It was held that the forum, being a third party who was neither a victim not an aggrieved person, had no locus standi to file the present petition.

The deceased, a prisoner, died in judicial custody in April, 2014. An FIR was registered, enquiry conducted, and criminal proceedings initiated against the respondent officials. However, ultimately, the Chief Metropolitan Magistrate came to the conclusion that no offence was established against the accused persons, and therefore he dismissed the complaint. The said order was challenged by the Forum in the present petition under Section 482 CrPC.

The High Court was of the opinion that the preliminary issue to be decided was as to the locus standi of the petitioner Forum to file the petition. M. Radhakrishnan, Advocate led arguments on behalf of the Forum. Per contra, the respondents were represented by C. Emilias, Additional General, assisted by M. Mohamed Tiyaz, APP; and Senior Advocate N.R. Elango; and A. Gokulakrishnan, Advocate; all of whom opposed the petition.

The Court noted that the term locus standi is commonly understood as the right or the capacity to bring an action or to appear in a Court. The march of law, more particularly by way of public interest litigations, has now allowed anyone from the society, not related to the cause of action to approach the Court seeking justice for those who cannot or who could not approach themselves or in cases which involves the public interest at large. However, it was held that such right cannot be extended in a criminal case to a third party who is not in any way related to the case. It was observed: “If this practice is permitted in a casual manner, a meddlesome bystander can easily decide to attack a person who has been held to be not guilty by a Subordinate Court, by initiating a frivolous proceeding and thereby cause irretrievable injury to the life and liberty of the accused person.” The only exception that has been created in this regard is by the Supreme Court which has held that third parties will have right, in very exceptional cases, to approach the Supreme Court under Article 136 of the Constitution of India. Reference was made to Amanullah v. State of Bihar, (2016) 6 SCC 699; National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599; Harsh Mandar v. Amit Anilchandra Shah, (2017) 13 SCC 420.

Holding that the petitioner had no locus standi to maintain the present petition, the Court dismissed the same.[Prisoners Right Forum v. State of T.N., 2019 SCC OnLine Mad 2476, decided on 22-07-2019]

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

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

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

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

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

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Raja Vijayaraghavan, J.,  decided a bail application filed under Section 239 of the CrPC wherein it granted bail to the accused because of the default of the prosecution in filing the charge sheet.

The applicant herein was the sixth accused and was remanded to judicial custody on 19.5.2018. He had been languishing in judicial custody for more than 60 days. The counsel on behalf of the applicant submitted that the applicant was entitled to be released on bail on the default of the prosecution in filing the charge sheet within the prescribed period, which was 60 days in the present case.

The High Court observed that more than 60 days had elapsed from the date of remand of the applicant. The final report had not been filed after completion of investigation. The Court held that the applicant had absolute right to be released on bail and it found no reason to refuse the same. The application was accordingly allowed.[Sanal v. State of Kerala,2018 SCC OnLine Ker 3010, dated 09-08-2018]

Case BriefsHigh Courts

Patna High Court: In a criminal appeal decided by a Single Judge Bench comprising of Vinod Kumar Sinha, J., the period of sentence of imprisonment inflicted upon the accused under Sections 392 and 411 of IPC along with Section 25(1)(1-B) of the Arms Act was reduced to the period of imprisonment already undergone by the accused.

The accused stood convicted by the trial court under the abovesaid sections along with other sections of the Arms Act and were sentenced to undergo rigorous imprisonment of five years. The said order of the trial court was challenged by the accused in the instant appeal. The High Court considered the record as well as submissions made on behalf of the parties and upheld the conviction of the accused under the sections mentioned stated above. However, the conviction of the accused under other sections of the Arms Act was set aside. Learned counsel for the accused prayed to reduce their sentence of imprisonment.

The High Court perused the record and found that the accused remained in custody for more than three years; the incident occurred in the year 2002 and as such the accused have faced rigors of trial for more than fifteen years. Considering these facts and circumstances, the Court was of the view that the sentence of imprisonment inflicted upon the accused should be reduced to the period of imprisonment already undergone by them.

The appeal was disposed with the aforesaid modification in conviction and sentence. [Ranjeet Kumar Singh v. State of Bihar, 2018 SCC OnLine Pat 449, decided on 19-03-2018]