Case BriefsHigh Courts

   

Bombay High Court: While granting bail to the Bhima Koregaon accused, Dr. Anand Teltumbde, the Division Bench comprising Milind N. Jadhav, A.S. Gadkari, JJ., held that NIA could not establish reasonable grounds for the Court to believe that the allegations and accusations against the accused are prima facie true. The Court observed,

“There is no material save and except calling upon us to presume that the word ‘brother Anand’ is a reference to the appellant and as such he is directly involved with the activities of CPI(M).”

The appellant, Dr. Anand Teltumbde was arraigned as accused No.10 in an FIR registered by National Investigation Agency (NIA) under Sections 120-B, 115, 121, 121-A, 124-A, 153, 201, 505(1)(b) and 34 of the Penal Code, 1860 (IPC) and under Sections 13, 16, 17, 18, 18-B, 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (UAPA) regarding Bhima Koregaon incident.

Pertinently, the appellant is a renowned scholar, writer, and civil rights activist who has authored 26 books published nationally and internationally and pioneered a theoretical critique on Neoliberal Globalization vis-a-vis Dalits and other oppressed masses. At the time of his arrest, he was working at the Goa Institute of Management, as a Senior Professor.

What Happened in Bhima Koregaon?

On 31-12-2017, Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called ‘Elgaar Parishad’ in Shaniwarwada, Pune to celebrate 200th anniversary of the historic battle of Bhima Koregaon on 01-01-2018. More than 200- 250 Social organisations joined the program. During the event, mobs bearing saffron flags attacked persons travelling to and returning from Shaniwarwada Pune which resulted in large-scale violence including arson, stone pelting and it even caused death of an innocent person near Bhima Koregaon, Pune.

Allegations against the Accused

NIA alleged that the appellant is the think tank of the banned activities of the Communist Party of India (Maoist), hereinafter CPI(M), and is intellectually and ideologically connected with CPI(M). A gist of specific charges against the appellant are as follows:

a. In 2012, the appellant had attended a meet organised by Revolutionary Democratic Front (RDF), a banned organisation, and vehemently espoused the cause of reinvention of Dalit Militancy as well revolutionary resurgence under the flag of CPI(M);

b. The appellant was the General Secretary of the Committee for Protection of Democratic Rights (CPDR) and a member of Anuradha Ghandy Memorial Committee, both front organisations of CPI(M);

c. He was one of the convenors of Elgar Parishad Program and was present at the venue;

d. He attended International Conferences under the guise of academic visits to Canada, Pakistan, USA, France etc. That he used to exchange literature on ideology, training, and work strategy of CPI(M) with International Communist Organisations.

e. That he is the real elder brother of wanted accused Milind Teltumbde, CCM and Secretary of Maharashtra – Madhya Pradesh – Chhattisgarh (MMC) Zone of CPI(M). That he met his brother during his urban area visits and shared literature of Maoist ideology collected by him during International Conferences;

f. He took efforts to release one Murugan, a CPI(M) cadre from jail as well as for release of G.N. Saibaba, another convicted accused in a CPI(M) related case.

Analysis of Evidence

NIA had provided five documents and three witnesses to buttress the charges levelled against the appellant. The Court has examined each document meticulously to reach the following findings:

1st document: This letter states that the Central Committee (CC) is pleased with the progress that (Comrade Anand) has made on the Dalit campaign and it has agreed to allocate him additional funds (10L yearly) to organise International Seminars and lectures on Dalit issues. That CC has sent funds for (Comrade Anand’s) upcoming Human Rights convention in Paris while calling upon coordination with friends in America and France and reiterates to keep the fire ablaze. NIA contended that the term ‘dear Comrade Anand’ has been used for the appellant which establishes that he is an active member of CPI(M). NIA further pressed that so far as Appellant’s visit to Paris and Budapest on 09-04-2018 is concerned, he was on leave, and expenses were not incurred by the Institute and hence it is to be deduced that the expenses were borne by CPI(M).

Opinion of the Court: After reading of aforesaid letter along with the letter dated 10-08-2020 issued by the Goa Institute of Management, the Court opined that prima facie, the appellant had travelled extensively from 11-07-2016 to 05-03-2020 while on leave and being out of office on his own expenses on at least 64 occasions. Submission of NIA that contents of 1st document prima facie invoke provisions of Section 15 of the UAP Act is not acceptable and palatable when the letter is read as it is unless there is any other material to corroborate and support such a theory. The Court noted that,

“It is seen that appellant is a man of intellectual prominence in the field of Dalit ideology/movement and merely because he is the elder brother of wanted accused Milind Teltumbde who had gone underground 30 years ago to espouse the cause of CPI(M) cannot be a sole ground to indict the Appellant and link him to the activities of CPI(M).”

2nd document: The second letter is addressed by Comrade M to Comrade Surendra, which refers to ‘Comrade Anand’. The letter which is typed on the letterhead of CPI(M), Central Committee, states that ‘Comrade Anand’ has made a few good suggestions.

Opinion of the Court: There is nothing more in the letter to suggest complicity of the appellant, provided taken at the highest that the word ‘Comrade Anand’ refers to him, which is vehemently denied by the appellant. Hence, the Court held on reading the letter prima facie it cannot be presumed that the appellant is actively involved in the work of the CIP(M).

3rd document: The letter relating to fact-finding team to gauge the truth about fake encounters in Gadchiroli which is addressed by one ‘R’ to ‘Comrade Prakash’, states that “Anand has agreed to co-ordinate the whole thing”. According to NIA “Anand” denotes the involvement of the appellant which squarely falls within the provisions of Section 15 of the UPA Act.

Opinion of the Court: Prima facie reading of the letter does not establish any case against the appellant unless there is other material to show his nexus to the alleged activity.

4th document: The name ‘Anand’ appears in the letter addressed by ‘Comrade M’ to ‘Comrade Rona’ also. The relevant portion reads thus: “.……. please speak with brother Anand, inform him to send reports through Comrade Manoj………” NIA emphasized that ‘brother Anand’ appearing in this letter addressed by ‘Comrade M’ (Milind Teltumbde, the wanted accused and younger brother of Appellant) clearly drives home the point that it is none other than Appellant.

Opinion of the Court: The Court opined that prima facie, reading of the letter, does not indicate any role of the appellant, especially when the letter has not been recovered and seized from him. The Court observed that even assuming at the highest that reference in this letter i.e., ‘brother Anand’ is to the appellant himself, the prosecution still has to show the nexus and link of the appellant with the present crime or any specific overt act. The Court expressed,

This letter refers to names of 17 persons in all, including “brother Anand”. Some names are also with their phone numbers. Not all of these 17 persons have been indicted in the present crime. If NIA’s argument is to be accepted, then the statement/sentence referring to some of the said names appears to be more serious.”

5th document: The last document referred to and relied upon by NIA is an “account statement” which bears the heading—”Accounts2k17 PARTY FUND RECEIVED IN LAST YEAR FROM C.C.” NIA has particularly emphasised on “Anand T. === R === 90 T from Surendra (Though Milind)” part of the document. According to NIA the name Anand T. is a reference to the appellant having received Rs.90,000 from Surendra (Surendra Gadling, Accused No.3) through Milind (wanted accused and younger brother of Appellant).

Opinion of the Court: Noting the fallacy in the argument of NIA, the Court expressed that if Anand T. is the appellant himself and he received Rs.90,000, even in that case it cannot be linked to the statement in the earlier letter dated 02-01-2018 since the account statement pertains to the year 2016 and or 2017. Further, the document is unsigned and has been recovered from the laptop of one of the co-accused. Hence, at this prima facie stage, the Court cannot presume that the appellant received Rs.90,000.

Additionally, the Court observed that one such seized document which contained the list of Central Committee Members of CPI(M) group along with their details and photographs for the year 2017, suggests that the appellant is not a member of this C.C. However, at Serial No.4 one Katkam Sudarshan @ Anand @ Mahesh @ Bhaskar appears as Central Committee and Polit Bureau Member of CPI(M). Hence, the Court opined that the reference to the name ‘Anand’ can also be to this member as argued by Appellant; and prima facie, such a probability cannot be ruled out, unless there is material shown to the contrary.

Findings and Conclusion

After appreciating the material on record as well as the statements of three key witness against the appellant, the Court held that prima facie, the prosecution was unable to establish that provisions of Sections 16 and 18 can be invoked at this stage against the appellant. Hence, the Court held that on reading the chargesheet and other material on record, prima facie, it could not be inferred that the appellant has involved himself in a ‘terrorist act’. Additionally, the Court remarked,

“In the present case the offence and crime related to the Bhima Koregaon incident resulted in the death of one person. On reading the draft charges and the chargesheet qua the Appellant, we prima facie find that NIA has not investigated or made any investigation in respect of this aspect. However, it is their case that the banned terrorist organization CPI(M) used the Elgar Parishad.”

Further, considering that the appellant has no criminal antecedents, and he has been behind bars for more than two years and half, the Court opined that a case for grant of bail has been made out. Hence, the impugned order of the Special Judge, Greater Bombay dismissing the bail application of the appellant has been set aside and the appellant was directed to be released on bail on the following conditions:

a. The appellant to execute a PR bond of Rs.1,00,000 with one or more solvent local sureties in the like amount.

b. He shall not tamper with the evidence of prosecution nor influence the prosecution witnesses;

c. He shall furnish his contact numbers, both mobile and landline, and permanent residential address, before his actual release from jail, to the Investigating Officer and the Special Court before which his case is pending;

d. He shall attend the concerned police station where he resides, initially for a period of one year, once in a fortnight i.e., on every 1st and 16th of each English Calendar month and thereafter on every first Monday of the month between 10:00 a.m. to 12:00 noon the till the conclusion of trial;

e. He shall not leave the jurisdiction of the State of Maharashtra and if he desires to travel within India, he shall seek prior leave and permission of the Trial Court;

f. He shall deposit his passport held by him before his actual release from jail, with the designated Special Court.

Pertinently, on the request of the prosecution to stay the operation and implementation of this order to enable NIA to challenge it before the Supreme Court, the Court had directed that the order granting bail to the appellant will remain stayed for a period of one week.

[Anand Teltumbde v. National Investigation Agency, 2022 SCC OnLine Bom 5174, decided on 18-11-2022]


Advocates who appeared in this case :

Mr. Mihir Desai, Senior Advocate i/by Ms. Devyani Kulkarni for Appellant;

Mr. Sandesh Patil a/w. Mr. Chintan Shah, Mr. Shrikant Sonakawade and Mr. Prithviraj Gole;

Advocate for Respondent No.1 – NIA;

Ms. J.S. Lohakare, APP for Respondent No.2 – State;

Mr. Pradip Bhale, Dy. S.P. NIA present;


*Kamini Sharma, Editorial Assistant has put this report together.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a public interest litigation concerning custodial torture on a 28-year-old woman in the police lockup, the division bench of Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. took suo motu notice of this grave and serious issue based on the newspaper report and observed that the victim was not formally arrested by police, but she was detained in police custody for a considerable period for the purpose of interrogation. Further, the medical reports clearly established that she was physically assaulted in custody, thus, directed the State to pay compensation to her.

The Court observed that from the facts and circumstances, merely based on a telephonic information received from the victim’s neighbour about her involvement in a theft case, police called her to the police station even without registering a case on the complaint received from the neighbour and without verifying the facts. Further, the medical reports clearly established that she was physically assaulted during interrogation in police custody.

The Court took note of the ruling in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, wherein the Court held that “the prison authority and the police would have the responsibility to ensure that the person in custody is not deprived of his right to life, even if his liberty is circumscribed by the fact that the person is in confinement”.

It also took note of the ruling in Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1, wherein it was held that “the police officers are under obligations to protect human rights of a person in custody and prevent all forms of atrocities to him/her”. It further referred to the decision in Ashwani Kumar v. Union of India, (2020) 13 SCC 585, wherein the Court reiterated that “a person detained in custody is entitled to live with human dignity and any form of torture would violate the right to life and is prohibited under Article 21 of the Constitution“.

Placing reliance on the decision in D.K. Basu v. State of W.B., (1997) 1 SCC 416, wherein the Court laid down the directions/guidelines with respect to rights of persons arrested/detained in police custody for interrogation; the Court has observed that the victim was not formally arrested by police but, undisputedly, she was detained in police custody for a considerable period for the purpose of interrogation. Thus, she was entitled to all the safeguards provided under the guidelines issued in the case of D.K. Basu (supra), but, apparently, she was deprived of those safeguards, and she was tortured and maltreated in police custody.

The Court viewed that the victim is entitled to monetary compensation for the wrongs done to her, thus, directed the State to pay a sum of Rs. 2,50,000/- to her.

[Court on its own motion v. State of Tripura, 2022 SCC OnLine Tri 635, decided on 21.09.2022]


Advocates who appeared in this case:

For Petitioner: Amicus Curiae A. Debbarma

For Respondent: Government Advocate D. Bhattacharya,

Advocate S. Saha

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus and calling for the entire records in connection with the detention order passed, and to set aside the same, the division bench of S.Vaidyanathan and A.D.Jagadish chandira, JJ. has observed that the protection guaranteed under Article 21 extends even to person who are undergoing imprisonment as a convict prisoner, and he does not lose his fundamental rights merely because he is convicted either as a convict prisoner or detained pursuant to a preventive detention order. Thus, the Court directed the State to pay a sum of Rs. 5,00,000/- as the detenue has been kept in illegal detention for 128 days.

The Court observed that as the order of detention passed against the detenue stands revoked as of now and the detenue has been released, there was no need to dwell on the validity and correctness of the detention order and the question to consider now is that, whether the detenue is entitled to any compensation and if so, the quantum of such compensation.

The Court observed that the sequence of events in the case reveals beyond any doubt that it is a classic case of bureaucratic lethargy and slumber, which has played a lot in depriving the personal liberty of a citizen guaranteed under Article 21 of the Constitution of India.

The Court took note of the Section 12(2) of the Tamil Nadu Act, 1982 (‘the Act’) and observed that as per the said section, when the advisory board opined and reported that there is no sufficient cause for the detention of the person, the State Government shall revoke the detention order and cause the person to be released forthwith, whereas, in this case, the petitioner’s wife was released after a period of 128 days.

The Court further observed that the personal liberty of a citizen has been very much guaranteed under Article 21 of the Constitution of India and the expression “Person” in the said provision is not to be confined only to citizens but, it extends to every person regardless of the circumstance in which a person is placed. Thus, it implies that the protection guaranteed under the above provision extends even to persons who are undergoing imprisonment as a convict prisoner, and he does not lose his fundamental rights merely because he is convicted either as a convict prisoner or detained pursuant to a preventive detention order. However, a person could be deprived of his life or personal liberty only in accordance with the procedure established by law and that procedure cannot be arbitrary, unfair, unreasonable one or it cannot be whimsical and fanciful.

The Court viewed that the terms “shall revoke” and “released forthwith” in Section 12(2) of the Act when read together express a strong assertion of the legislature in protecting the personal liberty as guaranteed under the Constitution and whether such intention have been properly appreciated by the respondents in the case is the question to be examined.

The Court noted that the advisory board has opined that there was no sufficient cause for detention and thereby the order of detention has been revoked by the Government, but the said order was not communicated to the detenue for a long time, further, the sequence of events speaks about the slumber on the part of the bureaucracy, which had taken away the personal liberty of the petitioner’s wife.

The Court took note of the ruling in Pramod Kumar Garg v. Union of India, 1994 SCC OnLine Del 346, wherein the Court held that “it is apparent, that the moment opinion of the advisory board is received that there is no sufficient cause for the detention of the detenu, the detaining authority shall revoke the detention order and cause the person to be released forthwith”.

The Court also took note of the decision in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, wherein the Court held that “this Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim, whose fundamental rights under Article 21 of the Constitution of India are flagrantly infringed“.

The Court further referred to the ruling in D.K. Basu v. State of W.B., (1997) 1 SCC 416 wherein the Court held that “grant of compensation in proceedings under Article 32 or 226 of the Constitution for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen“. It also took note of the decision in Bhola Kumhar v. State of Chhattisgarh, 2022 SCC OnLine SC 837, wherein the Court held that “when a person is detained beyond reasonable date it would be imprisonment or detention sans sanction of law and would thus not only violate Article 19(d) but also Article 21 of Constitution of India and thereby held such a person is entitled for compensation in terms of money“, and observed that the Court in the above case has without making any observation as to civil remedy, has passed an order granting compensation to be paid by the State in terms of money holding it vicariously liable for the act committed by its officers in the course of employment.

The Court observed that it is the duty of the Court to see that any individual who crosses the boundaries of law is dealt with appropriately, but it is also the foremost duty of the Courts to uphold the dignity of personal liberty. Thus, as the detenue has been kept in illegal detention for 128 days, the Court directed the State to pay a sum of Rs. 5,00,000/- to the detenue within 6 weeks from the date of receipt of copy of this order.

[Manokaran v. State of Tamil Nadu, 2022 SCC OnLine Mad 4697, decided on 21.09.2022]


Advocates who appeared in this case:

For Petitioner: Advocate K.A.S. Prabhu

For Respondents: State Public Prosecutor Mohamed Ali Jinnah

Additional Public Prosecutor M. Babu Muthumeeran

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant applications seeking to set aside the orders passed by the Special Judge (Designated Court for UAPA cases under NIA Act) Anantnag, granting bail to the respondents; the Ali Mohammad Magrey and Md. Akram Chowdhary, JJ., observed that offering of funeral prayers of a killed militant by the public at large, even if it was done at the instance of the respondents who are the elderly people of their village, cannot be construed to be anti-national activity of such a magnitude so as to deprive them of their personal liberty as guaranteed under Art. 21 of the Constitution.

Facts and Legal Trajectory of the Case: On 20.11.2021, Police Station Devsar received an information through reliable sources that Mudasir Jamal Wagay, who was an active militant, got killed during encounter with the security forces. After the news spread in the village, a person Mohammad Yousuf Ganai called forth the villagers to perform “Gaibana Namazi-Jinaza” (funeral prayers in absentia) for the slain militant.

Upon Yousouf Ganai’s call, the Imam of Masjid Sharif, Javid Ahmad Shah offered the prayers and during Jinaza the sentiments of the persons who were part of the said assembly, allegedly got incited and there were calls to continue struggle till freedom.

Based on this information, a case was registered at Police Station Devsar and the investigation was set in motion. During the investigation, ten accused persons including respondents were found involved in the case who were accordingly arrested for their involvement in the commission of offence under the provisions of Unlawful Activities (Prevention) Act, 1967.

The Special Judge of the Designated Court did not express any opinion as to the merits of the case and while keeping in mind the nature of accusations, severity of punishment, the larger mandate of Art. 21 and reformative theory of punishment, granted bail to the respondents.

Observations and Decision: Perusing the facts of the case, the Division Bench noted that the legislative policy under Section 43-D (5) of UA(P) Act is that no person accused of an offence punishable under Chapters IV and VI of the UAPA shall be released on bail, if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Both the Chapters deal with the accusation vis-a-vis terrorist activities.

The Bench referred to Union of India v. K.A. Najeeb, (2021) 3 SCC 713, wherein it was observed that unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA. Instead, Section 43­-D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well­ settled considerations like gravity of the offence, possibility of tampering with evidence etc.

The Court pointed out that personal liberty is the most precious right guaranteed under the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law.

It was further observed by the Court that personal liberty may be curtailed where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and adduce evidence in his defense.

With the above-stated observations, the Division Bench noted that nothing incriminating has been found against the respondents during investigations, thus the Designated Court was right in its observations made in the impugned order granting bail to the respondent and the order does not need to be interfered with, by the High Court. “No individual can be deprived of his fundamental right of liberty guaranteed under Art. 21 of Constitution”.

[Union Territory of J&K v. Javid Ahmad Shah, 2022 SCC OnLine J&K 714, decided on 01-09-2022]


Advocates who appeared in this case :

M.A.Chashoo, AAG, Advocate, for the Appellant;

None, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to an appeal filed to set aside the judgment and enlarge the appellant on bail, the division bench of S.Vaidyanathan and A.D.Jagadish Chandira, JJ. observed that no offence had actually taken place and no complaint has arisen from the so-called victim, but it is the case of the prosecution that merely on a suspicion of a police officer on duty who after seeing the appellant had enquired about him and on his confession statement the entire case of the prosecution had commenced and thereafter, keeping the statement of the appellant as a basis, the other links of the case of the prosecution, namely, the associates of the appellant in the alleged conspiracy had been fused.

The appellant was charged with offences under Ss.153-A(1)(b), 120-B, 201 of Penal Code, 1860 (IPC); S.7(1)(a) of Criminal Law Amendment Act,1932 (CLA); S. 25(1A) of Arms Act, 1959 and S.16 of Unlawful Activities (Prevention) Act, 1967 (UAPA), and was remanded to judicial custody on 08.03.2022 and is in incarceration for more than 100 days.

The Court took note of the provisions of the UAPA Act and observed that “when an offence falls within the provisions of Chapter IV of the Act, necessarily, while deciding an application for bail, the court has to take into consideration the proviso to Section 43D (5) of the Act and has to formulate an opinion as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true”.

The Court observed that initially, the prosecution had come out with allegations against the accused for the offences punishable under the provisions of IPC and CLA Act, later, the offence under the provisions of Arms Act got included and thereafter, the offence punishable under the provision of UAPA Act was introduced. It viewed that the provisions of UAPA Act have been included only in order to deny/delay the appellant from getting bail from the court and there is no other material to pin-point that the appellant and other accused had intended to commit the murder of the victim to create terror and fear among the public and people of other sections.

The Court further observed that “the State police has referred the case to be investigated by the National Investigation Agency (NIA), however, said proposal was rejected by NIA which speaks much about the case of the prosecution”. It relied on the judgement in National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Court laid down the aspects that need to be considered for deciding a bail application; and further took note of the ruling in Union of India v. K.A. Najeeb (2021) 3 SCC 713, wherein the court held that “ the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution and both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised”.

Moreover, as there was no complaint from any person and nobody was injured in this case, this case was merely registered based on suspicion and confession statement of the appellant; The Court held that “the allegations against the appellant do not fall within the definition of “Terrorist Act” and there are no reasonable grounds for believing that the accusation against the appellant is prima facie true”, hence, released the appellant on bail.

[Sadam Hussain v. State of Tamil Nadu, Criminal Appeal No.597 of 2022, decided on 26.8.2022]


Advocates who appeared in this case :

S.M.A.Jinnah, Advocate, for the Appellant;

Add. Public Prosecutor Babu Muthumeeran and Special Public Prosecutor (NIA) R.Karthikeyan, Advocate, for the Respondents.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Sushrut Arvind Dharmadhikari, J. allowed a petition which was filed seeking direction to the respondents to pay him the compensation for his illegal detention for almost four years in jail. 

 

Petitioner is a poor villager, an FIR was registered against him for the offence under Section 302 of the Penal Code, 1860 (IPC) and via judgment dated 14-03-2005 the petitioner was sentenced to rigorous imprisonment for life and fine. A criminal appeal was preferred by him aggrieved by the above conviction and sentence, Consequently, by the judgment dated 25-09-2006 Court modified the conviction and sentence of the petitioner opining that this was a case of culpable homicide not amounting to murder. Therefore, conviction of appellant under Section 302 of the IPC was set aside and he was convicted for the offence under Section 304 Part II IPC and sentenced to 5 years rigorous imprisonment and fine. 

The petitioner was to be released on 25-09-2009 but he was not released. Neither modified warrant, as required under Rule 315 of the Criminal Courts Rules and Orders was issued by the Court concerned for his release nor the jail authorities approached the Court in this regard. The petitioner was finally released after almost 3 years 11 months and 5 days of illegal detention on 02-06-2012. 

 

The counsel for the petitioner contended that the petitioner was , shattered by his prolonged  i11ega1 detention for no fault of his and it was submitted that there is no dispute or any doubt that the petitioner was detained illegally in prison for almost 3 years 11 months and 5 days even after his sentence was reduced.  

 

Counsel for the State opposed the prayer and contended that by virtue of Rule 315 (2) of the Criminal Courts Rules and Orders read with Rule 768 of the Jail Manual, issuance of super-session warrant/ release warrant upon reversal/modification of sentence in appeal is the responsibility of the Court to which the appellate judgment or order is certified under Section 425 of the Criminal Procedure Code, 1973. 

 

The Court consequently established that the petitioner remained in jail illegally for a period of 3 years 11 months 5 days which has resulted in violation of the fundamental right guaranteed under Article 21 of the Constitution of India i.e. protection of life and personal liberty. The Court also recalled the case of Pooran Singh v. State of M.P., 2009 SCC OnLine MP 176 wherein it was established that the defence of sovereign immunity is not available when the State or its officers, acting in the course of employment, infringe a person’s fundamental right of life and personal liberty as guaranteed by Article 21 of the Constitution of India and the State can be directed in a writ jurisdiction under Article 32 and 226 to repair the damage done to the victim by paying appropriate compensation.

 

The Court thus directed the State to pay him the compensation of Rs.3 lakhs within a period of 2 months keeping in mind the fact that the petitioner was kept in illegal detention for almost 4 years. The Court further directed the Registrar (Vigilance), Madhya Pradesh High Court, Jabalpur to immediately hold an inquiry and submit a report within a period of two months to the Registrar General as to why the modified warrant was not issued from the Court of First Additional Sessions Judge. 

[Inder Singh v. State of Madhya Pradesh, Writ Petition No. 13667 of 2013, decided on 21-07-2022] 


For petitioner: Arun Vishwakarma 

For respondent: Swaphil Ganguly, Praveen Hamdeo 


*Suchita Shukla, Editorial Assistant has reported this brief. 

Case BriefsSupreme Court

Supreme Court: In an interesting case the Vacation Bench comprising Dinesh Maheshwari and Krishna Murari, JJ., disapproved a strange bail condition imposed by the M.P. High Court. The High Court had directed the husband to surrender as a condition for pre-arrest bail of his wife.

The petitioner’s wife (applicant herein after) had approached the M.P. High Court with an application for pre-arrest bail apprehending her arrest in connection with a case registered against her husband’s family for offences punishable under Sections 304-B, 498-A, 34 of the Penal Code, 1860.

Considering that the applicant’s husband is posted at Mohana, District Gwalior which is a distant place from where the deceased resided last and the applicant has to take care of her children (two children aged 6 years and 3 years respectively), the High Court granted her pre-arrest bail with a direction to her husband to immediately surrender.

Aggrieved thereby, the petitioner, elder brother of the husband of the deceased, assailed the impugned order in the instant petition. The petitioner contended that the High Court had—while granting the prayer for pre-arrest bail to his wife— apart from the requirements of furnishing the bail bonds and surety, imposed further several conditions and then, before concluding the matter, observed as under:

“It is expected that husband of the applicant shall immediately surrender to the course of justice.”

The petitioner contended that such an observation of the High Court, practically forming a condition for grant of bail to his wife, has put all his rights in jeopardy and his plea for grant of pre-arrest bail is not being considered by the Sessions Judge because of such an observation.

Opining that the petitioner’s grievances were justified, the Court stated that it is inexplicable how the High Court can, while granting pre-arrest bail to the petitioner’s wife make such an observation that may operate against the interests of the petitioner; that too without extending him an opportunity to be heard. Considering the facts and circumstances of the case and the nature of accusations, the Court remarked,

“We are unable to find any logic in such a condition.”  

Hence, the Court disapproved of the condition imposed on the petitioner by the High Court.

Though the Court refrained to comment on the merits of the petitioner’s case for grant of pre-arrest bail, it held that the observations occurring in the impugned order cannot and shall not operate for being prejudicial to the interests of the petitioner.

Consequently, the Court directed that the petitioner’s bail plea shall be examined by the Court concerned on its own merits. Additionally, the Court added that since the instant order was passed without notice to the other side, the respondent-State will have the liberty to apply for a modification or for any other order, if necessary.

[Ajay Singh Rajpoot v. State of M.P., 2022 SCC OnLine SC 875, decided on 07-07-2022]


Appearance by:

For the Petitioner: Mr. Shishir Kumar Saxena, Adv., Mr. R.N. Pareek, Adv., Ms. Payal Swarup, Adv. and Mr. Praveen Swarup, AOR


*Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: With a view to bringing reform in practices relating to disposal of bail applications arising from the same case, the Division Bench of Ajay Rastogi and Vikram Nath, JJ., held that where more than one bail application has been filed by co-accused of offences arising from self-same FIR, all such applications shall be listed before the same court to avoid disparity.  

The petitioner had approached the Court under Article 32 of the Constitution with a complaint that arising from the self-same FIR, two accused persons had filed separate bail applications and the one which was filed later was listed before the Patna High Court and post-arrest bail was granted to the accused, but the petitioner who had filed the bail application earlier, his application was not listed and despite a request been made, his bail application could not be taken on board. The petitioner contended that he was still languishing in judicial custody in spite of approaching the Court earlier than his co-accused.  

Meanwhile, before the Court could decide the petition, the bail application filed by the petitioner was also listed before the High Court of Patna and he too was granted post-arrest bail. 

The Court opined that the matter could have been disposed of in the light of the later development, but considering that the practice being followed by the High Court needs to be revisited, the Court held that if more than one bail application is filed by co-accused persons arising from the self-same FIR, it has to be listed ordinarily before the same Court to avoid any disparity.  

Noting the Standing order No. 330/2019 issued by Delhi Police regarding guidelines for arrest keeping in view Section 41A of the CrPC, the Court stated,  

“We are not dilating on the issue any further, but we keep it open for the State Government to look into these guidelines and implement it with any amendment/modification, if required, for giving effect to the mandate of Section 41A of the CrPC.”  

In the light of the above, the Court directed the High Court to consider implementing abovementioned suggestions for better administration of justice and in the interest of the litigating people at large, particularly when the liberty of an individual is involved, which is sacrosanct.  

Consequently, the writ petition was disposed of.  

[Abhyanand Sharma v. State of Bihar, W.P. (Cr) No. 420 of 2021, decided on 10-05-2022]  


 Advocates who appeared in this case: 

For Petitioner(s): AORs Himanshu Shekhar and Sahil Tagotra, Advocates Abhay Prakash Sahay, Shoaib Alam, A.R. Takkar, Charitarth Palli, Ujjwal Singh,  

For Respondent(s): AORs Gaurav Agrawal, Neeraj Shekhar, and Santosh Kumar – I, Advocates Rishi K. Awasthi, Prashant Kumar  


*Kamini Sharma, Editorial Assistant has put this report together 

 

 

High Court Round UpLegal RoundUp

Allahabad High Court

Disability

In a case where an employee of Central Bank of India petitioned to be exempted from routine transfers due to permanent disability of wife, Rajesh Singh Chauhan, J. held that the transfer is an exigency/ incidence of service and no courts are ordinarily interfered with the transfer orders but if such transfer may be avoided for any specific compelling reason and that reason is unavoidable, the Competent Authority being model employer should consider such condition sympathetically. Read more

Right to Education

The Division Bench of Rajesh Singh Chauhan and Subhash Vidyarthi, JJ., dealt with a case where the admission of a class VIII student was rejected by the school authorities without proper information being given to the parents on time, so that such student could get his admission in any other institution inasmuch as to receive proper education is a Fundamental Right enshrined under Article 21-A of the Constitution of India. Read more

Manual Scavenging

The Division Bench of Manoj Kumar Gupta and Chandra Kumar Rai, JJ., took up suo motu cognizance and directed the authorities concerned to take concrete measures for implementation so that some change is discernible in the working conditions of the sanitary workers in line with Standard Operating Procedure (SOP) to be followed in cleaning sewers and septic tanks. Read more

Andhra Pradesh High Court

Habeas Corpus

A Division Bench of Tarlada Rajashekhar Rao and K Manmadha Rao, JJ., directed the State authorities to produce the detenu-wife before Court as couple is major and have agreed to live together. Read more

Bombay High Court

POCSO

The Division Bench of Prasanna B. Varale and S.M. Modak, JJ. dismissed an FIR lodged under Section 376 of the Penal Code, 1860, and Section 4 of the POCSO Act, observing that the conflict had been addressed and the girl and boy intended to marry. Read more

Personal Liberty

A.S. Chandurkar and Amit Borkar, JJ., stated that the right to travel abroad is spelled out in Article 21 of the Constitution and that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, do not implicitly confer such powers on the Debt Recovery Tribunal to restrain a person from travelling abroad. Read more

Extra-Marital Affair

The Division Bench of Sunil B. Shukre and G.A. Sanap, JJ., granted an application to quash an FIR filed under Section 306, 34 Penal Code. Read more

Advertisement/ Qualification

The petitioners contested a School Tribunal judgement ordering them to reinstate the respondent/employee. In overturning the Tribunal’s decision, the Bench of Rohit B. Deo, J. clarified that job advertisements are not limited to reserved positions. Under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, it is also obligatory to advertise the positions in the open category. Read more

Motor Vehicles Act, 1988

S.G. Mehare, J., authorised an appeal against the July 30, 2001 order of the Commissioner for Workmen’s Compensation and Judge Labour Court. Read more

Burden of Proof

The appeal against the appellant’s conviction for the offence is punishable under section 302 of the Penal Code, 1860, whereby he was sentenced to suffer R.I. for life and a fine of Rs. 5,000, was permitted by the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ. Read more

Copyright Infringement

RI Chagla J. awarded an ad-interim injunction in favour of the “Janhit Mein Jaari” film’s creators and ordered the defendants to take down infringing links right away. Read more

Hindu Marriage Act

Bharati Dangre, J. dismissed a writ petition brought by the petitioner-husband against maintenance order towards his daughter stating that an unmarried major Daughter is entitled for maintenance from her father and glossy life on Instagram do not prove independent and sufficient income to exempt petitioner’s responsibility/liability. Read more

Consent vis a vis Sexual Relationship

Bharati Dangre, J. rejected an anticipatory bail application which was filed apprehending arrest for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the Penal Code, 1860 and held that merely sharing friendly relationship with a girl does not permit a boy to take her for granted and construe it as her consent to establish physical relationship. Read more

Departmental Proceedings

The Division Bench of S.B. Shukre and G. A. Sanap, JJ. sets aside an FIR for the offences punishable under Sections 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act, 1988 in the matter of departmental proceedings being based on identical/similar charges as criminal proceedings cannot be proceeded with if accused was exonerated in departmental proceedings based on identical/similar charges. Read more

Calcutta High Court

Gratuity/ Pension

Amrita Sinha, J. dismissed a petition filed by an Assistant Teacher who retired on October 31, 2020, concerning the delayed payment of the gratuity and arrear pension amount. Read more

Dispute Bill

Sabyasachi Bhattacharyya, J. granted a petition directing CESC Ltd. to restore the petitioner’s electricity supply unconditionally. Read more

Peaceful Procession

Shampa Sarkar, J. heard a petition alleging that the Commissioner of Police, Kolkata, denied Utshi United Primary Teachers Welfare Association permission to march peacefully from Raja Subodh Mullick Square Park to Rani Rashmoni Avenue on June 11, 2022. Read more

Reasonable Opportunity

The Division Bench of Debangsu Basak and Bibhas Ranjan De, JJ. dismissed an appeal directed against the order dated 09-02-2022, holding that, despite the assessee receiving additional evidence regarding the quantum of tax liability after the conclusion of the order or refund, there was no material irregularity in the order of refund warranting interference under Article 226 of the Indian Constitution. Read more

Child Trafficking

Ananya Bandyopadhyay and Joymalya Bagchi, JJ., the division bench, denied a request for bail in a human trafficking case. The report was read in court, and it said that on June 14, 2022, psychological treatment was provided to trafficking victims. A request has been submitted for the lawful award of interim compensation. To provide the aforementioned witnesses with the security they need, measures were taken. Read more

Prostitution

A revisional application was filed for the quashing of the proceedings under Sections 3, 4, 5, 7, and 18 of the Immoral Traffic (Prevention) Act, 1956 (commonly referred to as the “I.T.(P) Act”) read with Section 120-B of the Penal Code, 1860,” and also for the setting aside of the order by which the Additional Chief Metropolitan Magistrate took cognizance against the current petitioner. This application was granted by Judge Ajoy Kumar Mukherjee. Read more

Victim Compensation Scheme

After hearing a petition, Moushumi Bhattacharya, J. gave instructions about the non-payment of victim compensation following a decision made by the Secretary of the District Legal Services Authority setting the compensation amount at Rs. 1,50,000/-. Read more

Arbitration

The Arbitral Tribunal’s award was affirmed by Shekhar B. Saraf, J., who also ruled that the award holder should be held liable for the full sum, plus interest and additional fees. Read more

Delhi High Court

Arbitration & Conciliation

While addressing the ineligibility of an arbitrator to be appointed, Vibhu Bhakru, J., elaborated on the expression ‘close family member’ and the likelihood of bias. Read more

Dishonour of Cheque

Asha Menon, J. refused to allow a petition filed under Section 482 CrPC seeking quashing of summoning order passed by the Metropolitan Magistrate, Patiala House Courts in a complaint filed by the respondents 1 and 2 against the petitioner under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. Read more

Income Tax Act

The Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ., expressed that, merely because there was a delay of one day in asking for an adjournment, the assessee living outside India cannot be denied his right to file an objection to Show Cause notice. The present petition had been filed challenging the order passed under Section 148 A (d) of the Income Tax Act, 1961, and the notice was passed under Section 148 of the Act. Read more

A Division Bench of Manmohan and Manmeet Pritam Singh Arora JJ. dismissed the petition and ordered the respondents to refund the amount adjusted more than 10% of the disputed tax demands for the Assessment Year 2017-18 to the petitioner. Read more

Arbitration

While hearing an application against an arbitral tribunal’s award, Vibhu Bakhru, J. ruled that the arbitral tribunal could not rewrite or examine the parties’ agreement. Read more

FATF/ Economic Security

The Division Bench of Mukta Gupta and Mini Pushkarna, JJ., stated that the simple smuggling of gold without any link to a danger to the country’s economic security or monetary stability is not a “terrorist crime” under the Unlawful Activities (Prevention) Act. Read more

Police Post

In a case where a police officer was injured after being attacked with an illegal weapon outside of the police station, Talwant Singh, J., stated that a police station is a place where people go to lodge complaints about disputes among themselves, not a place where public servants are supposed to be attacked. Read more

Trademark Infringement

Prathiba M. Singh, J. granted Colorbar Cosmetics Private Limited an ad interim ex parte injunction, restraining the Canada-based Faces Cosmetics India Private Limited from manufacturing, selling, and offering for sale cosmetics and other products under the trademark “Velvet matte.” Read more

Jyoti Singh, J. granted an ex-parte injunction and noted that a stricter approach is required in cases of medicinal preparations and products because any confusion between the respective medicinal products is likely to have a disastrous effect on public health. Read more

Dinesh Kumar Sharma J. granted an ex parte injunction to Voltas Limited restraining a website from using their registered trademark and logo VOLTAS and block and suspend the website. Read more

Matrimonial Offences

Swarana Kanta Sharma, J., stated that cases under Section 376 of the Penal Code, 1860 should not be quashed and should not be considered a crime against the society at large. However, in unusual circumstances, where the complainant states that her future depends on the quashing of the FIR and adds that the rape was not committed upon her, it would be in the interest of justice to quash the FIR. Read more

Illegality

Geetanjali Goel, J. upholds the discharge of Delhi CM and others in the Anshu Prakash assault case, finding no reason to interfere with the Trial Court’s impugned order and dismissing the petition as without merit. Read more

Adjudication

A Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ., dismissed the petition and ordered a new adjudication since the Assessing Officer did not examine any of the representations and contentions. Read more

Organ Donation

Yashwant Verma, J. dismissed the petition and directed the respondent hospital to process the petitioner’s application and request following the law. Read more

POCSO

A Division Bench of Mukta Gupta and Mini Pushkarna, JJ., maintained the assailed conviction decision, citing the accused’s terrible act of rape on a four-year-old child from his close family. Read more

Income Tax

Jyoti Singh and Anoop Kumar Mendiratta, JJ., of the Division Bench, struck aside notices addressed to a deceased assessee despite being informed of his death by his relatives. Read more

Injunction

Pratibha M Singh, J. issued directives to domain name registrars whose offices are located outside of India and whose details are not disclosed so that they do not avoid injunction orders issued by Indian courts. Read more

Compensation

Manoj Kumar Ohri J. dismissed the petition because the employer-employee relationship was established before the court by a witness and strict rules of evidence are not applicable in such cases. Read more

Controller of Patents

The applicant did not intend to abandon, the court should be lenient in its approach if it is convinced that the patent agent made a mistake and the applicant can demonstrate full diligence, said Pratibha M. Singh J., who also excused the delay in filing the applicant’s reply to the First Examination Reports. Read more

Foreign National Reservation

The refusal of admission by AIIMS and PGIMER was supported by Sanjeev Narula, J., because PGIMER did not promote seats for foreign nationals simply because it mentioned the requirements for admission as a foreign citizen in its prospectus. Read more

Mandamus / Judicial Review

Table tennis players Swastika Ghosh and Manush Shah, who had challenged the decision made by the Table Tennis Federation of India on the athletes who will represent India in the Commonwealth Games in 2022, were refused relief by Dinesh Kumar Sharma, J. Read more

Gujarat High Court

Wages

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Rape/Sodomy

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Family Law

The Division Bench of Vipul M. Pancholi and Rajendra M. Sareen, JJ., rejected a plea brought by the father under Article 226 of the Indian Constitution seeking custody of his daughter. Read more

Arms Act

The licence under the Arms Act of 1959 (“the Arms Act”) for self-defense was rejected by the District Magistrate, and the Additional Secretary Home Department of the State Government upheld the previous ruling in an appeal. The petitioner filed a challenge, which was accepted by Judge A.S. Supehia. Read more

Promotion

A petition asking for a directive to nullify and disregard the Seniority List of Multi-Purpose Health Workers was granted by Judge Biren Vaishnav. Read more

PPF

A.S. Supehia, J. allowed a writ petition directing Bank to deposit PPF amount deducted for settlement of liability that the amount of Public Provident Fund account shall not be liable to any attachment in respect of any debt or liability incurred by the account holder. Read more

Gauhati High Court

Anticipatory Bail

Sanjay Kumar Medhi, J. denied a petitioner’s request for bail under Section 438 of the Criminal Procedure Code, 1973 (CrPC), in a case that was filed under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Read more

Drug and Food Safety

According to Rumi Kumari Phookan J., only a food inspector can investigate offences under the Food Safety and Standards Act, 2006 (FSS Act), and Maharashtra Police lacks both jurisdiction and jurisdictional authority to do so. As a result, the court ordered Maharashtra Police to pay the petitioner Rs. 2,00000 as petition costs. Read more

Narcotic Drugs and Psychotropic Substances Act

While granting bail to the applicant herein, under Section 439 of the Criminal Procedure Code (CrPC) for a case registered under Narcotic Drugs and Psychotropic Substances Act, 1985, Ajit Borthakur, J. held that the provisions of Section 37 of the NDPS Act shall not be applicable if the service courier driver is unaware of what is being transported by him. Read more

Himachal Pradesh High Court

Arbitral Proceeding

In the case where it was argued before the Court that the Arbitration and Conciliation Act, 1996 does not provide for any remedy to challenge an arbitral order and was therefore contrary to the “public policy of India,” Satyen Vaidya J. observed that, “The term “public policy of India” carries within it innumerable facets. Read more

Bail/ Parole

The plea for a parole extension filed under Section 482 of the Criminal Procedure Code (the “CrPC”) was denied by Judge Vivek Singh Thakur because Article 226 of the Indian Constitution provides the appropriate remedy. Read more

Jammu & Kashmir and Ladakh High Court

Anticipatory Bail

While deliberating on an anticipatory bail application concerning an FIR registered in Neemuch, Madhya Pradesh, the Bench of Sanjay Dhar, J., considered whether this High Court has the jurisdiction to grant bail in a case that has been registered beyond its local limits of jurisdiction under Section 438, CrPC. Read more

Right to Life

While reviewing the information and concerns provided by the petitioners, the M.A. Chowdhary, J. bench made some important remarks regarding the voluntary marriage of two adults. The Court declared that Articles 19 and 21 of the Constitution properly recognise a couple’s right to get married. Read more

Kashmiri Pandits

The bench of Sindhu Sharma, J., dismissed the petition because the petitioners lacked any inalienable right to allotment of government housing when ruling on the instant petition filed by 3 retired State Bank of India employees who had retained their respective government accommodations and were unhappy with the rent being charged at a commercial rate. Read more

Jharkhand High Court

Qualification for promotion

Anubha Rawat Choudhary, J. held that the respondent had the necessary experience of guiding research at the Doctoral level as of the cut-off date in a case relating to qualification to be appointed as a professor at Vinoba Bhave University, even though the concerned research student did not receive her degree. Read more

Karnataka High Court

Rape

M Nagaprasanna, J., annulled the proceedings against the petitioners in Byadarahalli Police Station Crime No.87 of 2022, which was pending before the Chief Judicial Magistrate, Bangalore Rural District, Bangalore. Read more

Agricultural land compensation

A Division Bench of Alok Aradhe and J M Khazi, JJ., rejected the appeal and overturned the impugned verdict, ordering the appellants to determine and pay the compensation to the respondents. Read more

Protection of Witness

S. Sunil Dutt Yadav, J. listed a few causes of investigation delay, the primary causes of low conviction rate, the consequences of investigation delay, and guidelines for speedy investigation. Read more

Bigamy

M. Nagaprasanna, J. granted the petition in part and remarked that the quadrangle’s protagonists should resolve the issue among them rather than drag other people into the proceedings. Read more

Principles of Natural Justice

S.G. Pandit, J. dismissed the petition, leaving respondent-Railway authorities free to take action against the catering services after providing them with an opportunity under the law. Read more

Cruelty/ Divorce

The plea was partially granted by the division bench of S. Sunil Dutt Yadav and K.S. Hemalekha, JJ. The parties’ marriage was ended due to mental cruelty for the wife’s unfounded accusations against the husband. Read more

Domestic Violence

M. Nagaprasanna J. granted the petition and ordered that the application for maintenance be decided within two weeks after receiving a copy of this decision. Read more

Child sexual offence

The victim has now turned 18 years old, so the strictures under S. 33(5) of the Protection of Children from Sexual Offenses Act, 2012 (the “POCSO Act”) are no longer relevant. Therefore, M. Nagaprasanna, J. granted the petition filed to conduct an additional cross-examination of the child victim. Read more

Dowry Death

The FIR against the lady who had illicit connections with the complainant’s husband and was charged under Section 498-A of the Penal Code, 1860 was dismissed by Hemant Chandangoudar J. Read more

Dishonour of Cheque

M. Nagarprasanna J. allowed a petition filed under Section 482 of Criminal Procedure Code, 1973 (CrPC) and directed that interim compensation which would vary from 1% to 20% after recording necessary reasons be given as per the “conduct of the accused” for the applications filed under Section 143-A of the Negotiable Instruments Act, 1881 (NI Act). Read more

Kerala High Court

Habeas Corpus/ Special Marriage

A Division Bench of K Vinod Chandra and C Vijayachandran, JJ. dismissed the plea and denied the requested relief, concluding that the detainee maintained that he was not under any unlawful confinement. Read more

POCSO

Taking note of the alarming increase in the number of sexual offences committed against schoolchildren, Bechu Kurian Thomas, J., directed the Kerala Government and the Central Board of Secondary Education (CBSE) to include sessions/classes in the school curriculum on the provisions of the Protection of Children from Sexual Offenses Act, 2012. Read more

NTPC/ Discrimination

The decision by V.G. Arun, J., that NTPC’s notification for the recruitment of Assistant Law Officers is discriminatory and in violation of Article 16 of the Constitution because it restricts the selection process to only CLAT PG-2021 candidates comes as a significant relief to non-NLU law graduates looking for employment opportunities in PSUs. Read more

Cruelty/Desertion

A. Muhamed Mustaque and Sophy Thomas, JJ., who made up the Division Bench, ruled that cruelty must be judged from the viewpoint of a spouse, or how that spouse would interpret the actions of the other spouse, to be considered. Read more

Anticipatory Bail

Vijay Babu, a film producer and artist, was granted anticipatory bail by Bechu Kurian Thomas, J., in a high-profile rape case that sparked outrage in the film industry. The Court ruled that there is no legal prohibition against granting anticipatory bail to a person who is physically present overseas. Read more

Reproductive Rights

The Assisted Reproductive Technology (Regulation) Act of 2021 prohibits the sale of human gametes, zygotes, and embryos but does not forbid a couple from using their embryo to conceive a child. This is why V.G. Arun, J., allowed a couple to transfer their frozen embryo to another hospital for infertility treatment. Read more

Pre Arrest Bail

In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., denied pre arrest bail and held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public. Read more

Compulsory Licensing

While adjudicating a petition filed by a breast cancer patient seeking to afford life-saving medicines which otherwise cost more than twice her monthly income, V. G. Arun, J. directed Central Government to consider compulsory licensing of the breast cancer drug “Ribociclib”. Read more

Madhya Pradesh High Court

Rape

Anand Pathak, J. granted a petition filed under Section 482 of the Code of Criminal Procedure seeking the dismissal of an FIR filed against the petitioner and subsequent criminal proceedings for an offence under Sections 376 and 506 of the Penal Code, 1860. Read more

Bail/ Corruption

The applicant was arrested on February 3, 2022, for a crime punishable by Sections 409, 420, 467, 468, 471, 201, and 120-B of the Penal Code, 1860, as well as Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988. Anand Pathak, J. refused the applicant’s motion for bail. Read more

Arya Samaj

A petition was submitted to address and investigate several concerns regarding marriages solemnized in Arya Samaj Vivah Mandir Trust, and the Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ. accepted it. Read more

Motor Vehicle

While dismissing an appeal filed under Section 173(1) of the Motor Vehicles Act, 1988 , Vishal Dhagat, J. held that the present case is a case of misrepresentation on the part of legal representatives/driver/owner of vehicle in contracting with the appellant for purchase of policy in name of deceased owner as contract entered between the parties is not voidable. Read more

Madras High Court

Mental Illness

G R Swaminathan J. answered in negative to the moot consideration that can certifying authority insist a Child suffering from mental illness, who requires a disability certificate, to come to premises of institution for assessment. Read more

Educational certificate

While addressing the grievance of some qualified doctors, G.R. Swaminathan, J. stated that because an educational certificate is not a marketable commodity, no lien can be exercised under Section 171 of the Indian Contract Act, 1872. Read more

Income Tax Appellate Tribunal

G. Chandrasekharan, J. declined to quash prosecution against actor SJ Suryah as the order of the Income Tax Appellate Authority, cancelling the assessment orders was not on merits. Read more

Social Media Intermediaries

B. Pugalendhi, J., revoked the bail of a YouTuber who made disparaging statements about the former Chief Minister of Tamil Nadu. Read more

Documentary/Oral Evidence

Senthil Kumar Ramamoorthy, J., stated that a suit cannot be hurriedly determined at the request of a plaintiff unless the plaintiff convinces the court that the suit claim has been fully established. Read more

Income Tax

A Division Bench of R Mahadevan and Sathya Narayan Prasad, JJ. rejected the tax appeal because guarantee commission and royalty must be subtracted from company profit to calculate the deduction under Section 80 HHC of the Income Tax Act, 1961. Read more

Service Rules

S M Subramaniam, J. upheld the decision taken by Indian Banks Association to unilaterally withdraw the facility for State Bank of India officers to visit overseas countries as part of Leave Travel Concession ‘LTC’/ Home Travel Concession ‘HTC’. Read more

Meghalaya High Court

POCSO

W Diengdoh J. quashed a POCSO case opining that just holding the hands of the victim girl and complimenting them would not amount to sexual intent or sexual assault under POCSO. Read more

Rape

The appeal, which challenged the April 27, 2021 judgement of conviction finding the appellant guilty under Section 376(2) of the Penal Code, 1860, was decided by the Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. The main focus of the appeal was the 20 years of rigorous imprisonment and Rs. 50,000 fine that was imposed. Read more

Public Interest Litigation

A petition concerning the current health-care system was heard by the Division Bench of Sanjib Banerjee, CJ, and W. Diengdoh, J. Read more

Life Imprisonment

The Division Bench of Sanjib Banerjee, Chief Justice, and W. Diengdoh, J., dismissed the petition and set aside the conviction order, which was directed against a judgment of conviction under Section 302 of the Penal Code, 1860 and the order of punishment, which sentenced him to life in prison. Read more

Orissa High Court

Superannuation

S.K. Panigrahi, J., denied the petition, stating that “no plea for a change of date of birth after five years from the joining date will be considered.” Read more

Transgender Rights

A.K. Mohapatra, J., has been instructed to complete the trans-sexual woman’s application for a family pension as soon as feasible, ideally within six weeks after receiving a certified copy of the order. Read more

Administrative laches

S. K. Panigrahi, J., ordered the State to pay simple interest at the rate of 6 percent per year on postponed salary within 30 days of today. Read more

Guardian and Wards Act

The case was dismissed by a Division Bench consisting of SK Sahoo and M S Raman JJ., giving the petitioner the freedom to seek the proper remedy before the proper venue in line with the law. Read more

Central Information Commission

A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. Read more

Compensation

Arindam Sinha, J. criticised the State for not following the procedure and granted compensation to a woman who conceived even after being sterilised by the State. Read more

Patna High Court

Right to Sanitation

Sanitation is a private, individual matter that is intimately connected to human dignity. Additionally, cleanliness has a crucial public health component. According to a recent ruling by the Division Bench of Sanjay Karol CJ and S. Kumar J, the right to sanitation falls under the purview of Article 21 and as a result, the State, National Highway Authority of India, and Oil Marketing Companies have been instructed to build public restrooms and other conveniences along all of Bihar’s highways. Read more

Rape

While dealing with a case of rape, A M Badar, J. observed that mere non-offering of physical resistance by a rape survivor cannot amount to the consent given by a woman for sexual activity under Section 375 of the Indian Penal Code (‘IPC’). Read more

Punjab & Haryana High Court

Religious Beliefs

Karamajit Singh, J., directed the State of Punjab not to take “coercive steps” against Raveena Tandon, Farah Khan, Bharti Singh, Screen Abbas Aziz Dalal, and Frames Production in response to their petition seeking the quashing of an FIR filed against them for allegedly hurting religious sentiments during a Flipkart web show titled “Backbenchers.” Read more

NDPS Act

In a petition under section 439 CrPC for regular bail under sections 22, 25, 27-A, and 29 of the NDPS Act, Jasjit Singh Bedi, J., expanded the petitioner-accused on bail while repeating the observations made by various Courts, including the Supreme Court, on the requirement that section 42 of the NDPS Act be complied with by the relevant authority. Read more

Muslim Personal Law

After the petitioners were forced into marriage, a writ petition was filed to seek the protection of their life and liberty from family members. Jasjit Singh Bedi, J. instructed the Senior Superintendent of Police to determine the petitioners’ claims regarding the threat to their life and liberty after taking into account the petitioners’ capacity to enter into a legal marriage contract and attending to their concerns. Read more

Rajasthan High Court

Bailable Warrant

Dinesh Mehta, J. granted the petition and stated that while expediting the disposition of cases is important, so is adhering to the mandate of the law, including procedural law. Read more

Culpable Homicide

Farjand Ali, J. rejected the petitioner’s request for bail after finding that the investigating agency had overlooked several relevant pieces of evidence. The petitioner was accused of committing an honour killing. Read more

Police Protection

Sameer Jain J. granted police protection and directed the State authorities to charge an appropriate fee from the couple seeking police protection before the Court, if the income is found to be more than the taxable income under the Income Tax Act, 1961. Read more

Telangana High Court

Anticipatory Bail

Juvvadi Sridevi, J., granted anticipatory bail pending the conclusion of the inquiry and the submission of the final report. The Court remarked that the accused 2/petitioner 2 did not appear to have been served with a notice under Section 41-A CrPC, whereas the accused 1/petitioner 1 was simply provided with the notice. Read more

Prevention of Money Laundering

K. Lakshman, J. upheld the petitioner’s appeal against the Directorate of Enforcement’s (ED) request to extend the petitioner’s judicial custody so that the investigation could be finished, stating that a complaint filed without a complete investigation cannot be used to avoid the right to statutory bail under Section 167(2) CrPC. Read more

Maintenance under Section 125 CrPC

In a maintenance case, Sathish Reddy, J. stated that the wife’s earning capacity cannot be used to deny her maintenance. Read more

Commercial Courts Act

The appeal was allowed by the Division Bench of P. Naveen Rao and Sambasivarao Naidu, JJ., who overturned the impugned order’s stance that any disagreement arising from a contract involving real estate that is solely used for business or commerce and whose “specified value” exceeds one crore belongs in a commercial court alone. Read more

Tripura High Court

Harassment

While noting that there were no legitimate grounds to deny the employee gratuity and other retrial benefits, Arindam Lodh, J. directed the employer to release the employee’s gratuity, pension, and other retrial benefits. Read more


*Arunima Bose has put this report together.

Case BriefsSupreme Court

Supreme Court: The vacation bench of AS Bopanna and Vikram Nath, JJ has issued notice returnable in 3 weeks in the matter where one Mohd. Naseer, who has been in custody since 14.02.2019 for being charged under the Prize, Chits & Money Circulation Schemes (Banning) Act, 1978.

Prior to this, the Petitioner had been arrested on 20.07.2009 and was granted bail on the same date. He was then not arrested till 14.02.2019 even though the charge-sheet was filed on 09.12.2016. It has hence been argued before the Court that the same is against the law laid down by the Supreme Court in Siddharth v. State of UP, (2022) 1 SCC 676 and Aman Preet Singh v. CBI, 2021 SCC OnLine SC 941, wherein it was held that if the accused has not been arrested during the course of the investigation and has cooperated with the investigation then there is not requirement of arrest post filing of charge-sheet.

Further, the petitioner had applied for bail before the Orissa High Court and the order was reserved on 12.06.2020. It has been argued that he is confined in jail awaiting adjudication of the case since then. Notably, the Petitioner has already been detained for more than 3 years where the total period of incarceration in case of conviction is maximum 7 years.

“The Petitioner has already been in custody for more than 3 years post filing of charge-sheet, wherein the Trial against the Petitioner has already begun and there is hardly any possibility of early conclusion of the Trial.”

The petitioner, who suffers from a permanent disability of blindness by birth, has submitted before the Court that the prolonged detention is against the fundamental rights of the Petitioner under Article 21 of the Constitution of India.

[Mohd. Naseer v. Directorate of Enforcement Government of India, 2022 SCC OnLine SC 767, order dated 13.06.2022]


Counsels

For petitioner: Sr. Adv Siddharth Bhatnagar, AORs Swarnendu Chatterjee and Gaurav and Advocates Yashwardhan Singh, Himanshu N and Raman Yadav

Case BriefsHigh Courts

Bombay High Court: Expressing that the right to travel abroad has been spelt out from the expression “personal liberty” in Article 21 of the Constitution, A.S. Chandurkar and Amit Borkar, JJ., observed that, the provisions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, do not impliedly confer such powers on the Debt Recovery Tribunal to restrain a person from travelling abroad.

Issue


The instant petition raised an important question with regard to the interpretation of Article 21 of the Constitution of India as to whether the expression “personal liberty” occurring in the said Article includes the right to travel abroad?

Whether refusal to grant permission to travel abroad results in the infringement of Article 21 of the Constitution of India? 

Background 


The petitioner had challenged the order passed by the Debt Recovery Tribunal refusing to grant permission to travel abroad for a limited time to attend the marriage of the petitioner’s sister-in-law.

Analysis, Law and Decision


Article 21 of the Constitution of India

“21. No person shall be deprived of his life or personal liberty except according to procedure established by law.”

While stating that it is a well settled that the expression “personal liberty” includes right of a citizen to travel abroad and return to the home country without any impediment, direct or indirect. The expression “personal liberty” has not been used in the restricted sense of freedom from arrest and detention but had been used in a much wider sense.

The above-said right emanates from the freedom of a person and the right to travel abroad and return to the country without impediment, direct or indirect, is contained in the expression “personal liberty” occurring in Article 21 of the Constitution.

“…Law in this Article means the law enacted by a competent Legislature.”

 Further, the Bench added that, the mandate of Article 21 is that the deprivation of “personal liberty” has to be “according to procedure established by law.”

Elaborating further, the High Court observed that,

The right to travel abroad is right distinct and separate from the right of freedom of movement in a foreign country.

The right to travel abroad of a citizen of India was considered in the Supreme Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

Additionally, the Court referred to Sub-Section 12, 13(A), 17 and 18 of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and stated that the Tribunal is not conferred with specific power to restrain a person from leaving the country.

In Court’s opinion, Section 22 confers the procedural right to regulate proceedings before it.

“In the absence of a specific provision conferred on the Debt Recovery Tribunal by statute, the Debt Recovery Tribunal has no power to restrain a citizen from travelling abroad, particularly when the said right has been recognised as a facet of Article 21 of the Constitution of India.”

High Court added that the rights of respondent 1 will sufficiently protect the rights of respondent 1 to recover the amount of dues from the petitioner.

While concluding the matter, the Bench held that the order refusing permission to travel abroad has been made in contravention of the provisions of Article 21 of the Constitution and is violative of the right guaranteed to the petitioner under Article 21.

Further, the State had not made any law or provision in the said Act seeking to deprive or regulate the right of a person to travel abroad.

Hence, the order was set aside.

“…the purpose of depriving or regulating the right of a person to travel abroad, it is necessary to have a procedure established by law enacted by a competent Legislature in the said act or by way of independent legislation which is absent herein.”

In view of the above, the Debt Recovery Tribunal had no power to restrain a person from travelling abroad in the absence of specific powers to that effect. [Anurag v. Bank of India, 2022 SCC OnLine Bom 1160, decided on 7-6-2022]


Advocates before the Court:

Mr Akshay Naik a/w Mr D.V. Chauhan and Mr C.J. Dhruv, Advocates for Petitioner.

Mr A. T. Purohit, Advocate for Respondent No.1.

Mr D. Gupta, Advocate for Respondent No.2(Official Liquidator).

Case BriefsHigh Courts

Bombay High Court: Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

The present petition was filed for quashment of an FIR registered for the commission of an offence under Section 353 of the penal Code, 1860.

Petitioner’s Counsel submitted that now the crime was registered for the commission of an offence under Section 153-A read with 34 of the Penal Code, with Sections 37(1) and 135 of the Maharashtra Police Act.

Both the petitioners were said to be active in Social and Political Life.

Petitioners stated that they would be reciting religious verses i.e. Hanuman Chalisa in front of the personal residence of Uddhav Thackeray, who was the Chief Minister of the State of Maharashtra. The Police approached the petitioners and informed them that they should not indulge in any such activities and a Notice under Section 149 was hence issued.

In spite of the service of the notice, both the petitioners gave the statements in visual media due to which there was the apprehension of reaction in the society and the acts of the petitioners and statements resulted in a serious threat to law and order, as such action being initiated against the petitioners.

As per the report, the police officials proceeded over the effecting arrest of the petitioners, when the petitioners resisted the said act and deter the Police Officials from discharging their duties, the offence under Section 353 IPC was attracted.

Analysis and Decision

High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly,  not only breaching the personal liberty of another person but also encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order.

Further, observing that as the second F.I.R. was registered against the Petitioners attracting of Section 353 of the Penal Code, in case the State Government was desirous of initiating any action including the action against the Petitioners in pursuant to the F.I.R. No. 506 of 2022, the Officials of the State Government shall issue 72 hours’ notice to the Petitioners before taking such action.

In view of the above discussion, a petition was dismissed. [Navneet Ravi Rana v. State of Maharashtra, WP No. 1286 of 2022, decided on 25-4-2022]


Advocates before the Court:

Mr Rizwan Merchant a/w Mr Faiz Merchant a/w Mr Faisal F. Shaikh – Advocate for the Petitioner
Spl. PP Pradip P. Gharat a/w Ms M. H. Mhatre – APP for the Respondent- State

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.

“Object of bail is to secure the presence of the accused at the time of trial, object is this, neither punitive nor preventative, and a person who has not been convicted should only be kept in custody if there are reasons to believe that they might flee from justice or tamper with the evidence or threaten the witnesses.”

Petitioner sought regular bail in an FIR registered under Sections 406, 420, 409, 120B of the Penal Code, 1860.

Factual Matrix

An ex-servicemen filed a complaint stating, ‘Hello Taxi’ and its Directors/Officials and other unknown persons had committed cheating and fraud.  The complainant had received a message and an email from the said company stating that if he invested his money, they would give him a 200% return within 1 year. The Directors called the complainant and invited him to a place where they explained to him about the Company and their plans to expand on the lines of Uber/Ola.

After much insistence, the complainant invested Rs 9,00,000. Further, even the complainant’s friends invested rs 15 to 20 lakhs. It is stated that on the 10th of every month, installment would be sent to the account of the investors, however, he did not receive any instalments and on calling the company a clip was shown to the complainant that the Company’s accounts had been frozen.

Stating that the Complainant and many others had been defrauded of their money, the complaint was filed on the basis of which the FIR was registered.

Analysis, Law and Decision

High Court on perusal of the charge sheet noted that both the petitioners were involved in the multi-person scam involving more than Rs 200 Crores from the inception of the same and that both were instrumental in misleading the public into investing in the scheme with no intention of returning the money.

It was also noted that more 900 complaints have been made till date pertaining to the scam and the investigation revealed that the petitioner played an integral role, right from inducing the public to siphoning off of the cheated money.

It was added that the gravity of the offences was such that if the petitioners were subsequently convicted, they would be liable to be sentenced to undergo imprisonment for life.

Gravity of the Offence: Can it be the sole ground?

The Bench stated that gravity of the offence cannot be the sole ground to deny bail to the petitioners. Supreme Court’s decision in Sanjay Chandra v. CBI, (2012) 1 SCC 40, was referred.

Therefore, the magnitude of the offence cannot be the only criterion for denial of bail.

Object of Bail

Bench opined that if there is no apprehension of interference in the administration of justice in a criminal trial by an accused, then the Court should be circumspect while considering depriving the accused of their personal liberty.

Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused.

High Court noted that the petitioners were in custody for over a year now and observed that,

“Charge sheet as well as supplementary chargesheet have been filed, and all the evidence available is documentary in nature and in custody of the investigation agency. Whether or not the cheated money was entrusted to the petitioners is a matter of trial and cannot be taken into consideration at this juncture.”

Therefore, Court concluded that continued custody of the petitioner was no longer required and enlarged them on bail.

Conditions laid down for bail

  • Each petitioner shall furnish a personal bond in the sum of Rs 1,50,000 with two sureties of the like amount, one of them should be a relative of the petitioner, to the satisfaction of the trial court
  • Petitioners are directed to reside at their respective address till further orders.
  • Every Monday, Wednesday and Friday the petitioners are directed to report the Police Stations concerned
  • Petitioners should provide their mobile numbers to the investigating officer and keep the same operational at all times.
  • Petitioners shall not tamper with evidence or try to influence the witness
  • In case it is established that the petitioners have tried to influence the witnesses or tamper with the evidence, the bail granted to the petitioners shall stood cancelled.

In view of the above bail applications were disposed of.[Sunder Singh Bhati v. State, 2022 SCC OnLine Del 134, decided on 17-1-2022]


Advocates before the Court:

For the Petitioner: Pradeep Singh Rana, Ankit Rana, Abhishek Rana, Nitish Pande, Advocates

For the Respondent: Amit Chadha, APP for the State with SI Shiv Dev, P S EOW

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

An application was filed under Section 439(2) of Criminal Procedure Code, 1973 read with Section 482 CrPC for cancellation of the anticipatory bail granted to respondents 2 to 5 passed by the Patiala House Court for the offence under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 of the Penal Code, 1860.

Complainant had given a complaint against her husband, mother-in-law and brother-in-law for offences under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 IPC.

Apprehending arrest, respondents filed an application under Section 438 CrPC seeking a grant of anticipatory bail.

Additional Sessions Judge found that the grievance of the complainant, that the matter had not been investigated fairly or that the investigating agencies acted in connivance with the accused could be addressed by moving the Metropolitan Magistrate and it is for the Metropolitan Magistrate to order further investigation under Section 173(8) CrPC.

The above-said order had been assailed by the complainant.

Trial Court granted anticipatory bail to the accused after considering the statements of the accused. Status Report noted that the respondents had joined the investigation and were cooperative, both before and after being granted protection from arrest by the Trial Court.

Difference between: Rejection of application for Bail v. Cancellation of Bail

Rejection of application for Bail

Cancellation of Bail

An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the Court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused.

In the case of cancellation, the Court is called upon to extinguish the liberty that has been formerly granted.

When can a Court seize the liberty of an accused undertrial?

Stating that a Court must tread with the utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the Court, Bench explained when a Court can exercise its jurisdiction in seizing the liberty of an accused undertrial.

Supreme Court in the decisions of Delhi Admn. V. Sanjay Gandhi, (1978) 2 SCC 411 and Dolat Ram v. State of Haryana, (1995) 1 SCC 349, expounded the position in law vis a vis cancellation of bail.

The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.

Application for Cancellation of Bail and Grant of bail are different from each other, Bench added that High Court will not exercise its jurisdiction to interfere with an order of bail granted by Special Judge if there is no serious infirmity in it.

In the present matter, Court found the order of the ASJ to be well reasoned requiring no interference.

Lastly, the Court dismissed the petition noting that Court has not made any observation on the nature/manner of investigation, and if an application challenging the nature/manner of investigation is filed by the complainant, the Trial Court is requested to consider the same. [Charu Soneja v. State (NCT of Delhi), 2022 SCC OnLine Del 5, decided on 3-1-2022]


Advocates before the Court:

For the Petitioner: Mr K. K. Manan, Senior Advocate with Ms Uditi Bali and Ms Komal Vashist, Advocates

For the Respondent:  Ms Kusum Dhalla, APP for the State with SI Ravinder Kumar, PS Naraina Ms Kamlesh Mahajan, Advocate for R-2 to R-5

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application which was filed for grant of regular bail for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act, 1985”).

FIR stated that Sub-Inspector along with other police officials were present at Ataria for routine checking. The applicant was coming from Ataria with a bag. On suspicion, he was apprehended and 430 gram of charas was recovered from his bag.

Counsel for the applicant, Mr Anil Kumar submitted that the applicant had been implicated in this matter; he is a student; no contraband was recovered from his possession; the applicant had no criminal history; mandatory provisions of the Act, 1985 were not complied with.

A.G.A. for the State, Mr Pratiroop Pandey fairly conceded that the applicant had no criminal history but opposed the bail application.

The Court concluded that in terms of Section 2 (xxiii-a) and Section 2 (vii-a) of the Act, 1985, 100 gram of charas was small quantity and greater than one kg of charas was commercial quantity (Entry No.23).

Court further added that Refusal of bail is a restriction on the personal liberty of an individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the investigation is not punishment. The main purpose is manifestly to secure the attendance of the accused.

Court allowed the bail application holding that there was no reason to keep applicant behind the bars for an indefinite period.

[Harish Melkhani v. State of Uttarakhand, 2021 SCC OnLine Utt 1146, decided on 07-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J., allowed the petition and directed termination of pregnancy.

The instant petition was filed seeking termination of pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 (for short Act of 1971).

Counsel for the petitioner Ms. Aditi Singhvi submitted that the petitioner was subjected to rape and the case was registered under sections 376, 376 (2) by result of such rape she conceived and is forced to continue the pregnancy which would eventually constitute a grave injury to the mental health of the pregnant woman.

The Court observed that the amended Section 3 of the Act of 1971 show that the length of pregnancy can be terminated in opinion of registered medical practitioner formed in good faith that pregnancy would cause grave injury to physical and mental health of woman and where the length of pregnancy does not exceed twenty weeks. Explanation 2 the same is prescribed wherein it is stated that the pregnancy which is caused by rape would presume to cause grave injury to mental health of the pregnant woman. The fact of rape is also supported by the State that the victim was subjected to rape. The report of the District Medical Board shows that the opinion was formed that MPT can be safely done as the pregnancy is within a period of 20 weeks and the victim is mentally and physically fit for the medical termination of the pregnancy.

The Court relied on judgment Suchita Srivastava v. Chandigarh Admn, (2009) 9 SCC 1 wherein it was held

“a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”.

“22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

The Court directed “the petitioner shall be entitled to Medical termination of pregnancy. In order to carry out the pregnancy State shall form a panel of expert doctors at the District Hospital Durg as early as possible.”[ABC v. State of Chhattisgarh,  2021 SCC OnLine Chh 1728, decided on 25-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.



Appearance

For Respondent/ State :  Shri Alok Bakshi

Op EdsOP. ED.

If I were “death” I would be inevitable but I am not death and I fight death every day. How do I do that? Well, I go out on the road and escape moronic drivers running over people, at home I hope to survive falling roofs, accidental fires, etc. Adding to other factors, if I am not a male foetus I hope I am able to beat death even before I am born. I try and survive thoughts of self-harm and suicide. So, I survive death every day in a million ways. Interestingly, the Government wants me to live too even though it may seem like they do not care. The laws and the Constitution very categorically promote living happily, so much so that an attempt to suicide is punishable with imprisonment. One can say they are granting the death wish sending him/her to jail. Peter Cook said “One should realise suicide is a criminal offense, in less enlightened times they would have hung you for it.”  While we are talking about life, we are focused on human life here, though animals have rights too they cannot sue the offending party. So, they do not get to fight death the way humans do.

Life, a precious gift

In Hinduism life and death are the gift of God and no human being has the right to take away the said gift; in Islam, human dignity stems from the belief that man is a creation of God – the creation that God loves more than any other. There is no debate that life is the most precious thing that the human world can possess.

It is ironic that once one enters the world, one loses control over one’s life, the Government takes over in the name of the God of course. No one reserves the right to end any life even one’s own, the right reserves with God and the almighty State. Governments yield powers which even God does not presume, therefore, they have taken up the responsibility of doing God’s work and enabled themselves to end lives under the procedure established by law. Arnaud Almaric said “ask no questions. Just shoot them all, and let God sort them out”. Well, it is a little more complicated than that, at least for now. Our Constitution provides for the “Rule of Law” and protection of life and personal liberty.

Going to primitive times, the trials were bizarre. Guilty or innocent, history is replete with trials that ensured the death of the undertrial. The times have evolved and so did the trials and the sentencing. The death penalties were frequent in the early 18th and 19th centuries. However, over the period death penalties have not been the norm. The courts have relied on the facts that life and death are acts of the divine and the divine’s authority has been delegated to the courts of law to be only exercised in exceptional circumstances with utmost caution. Therefore, the first and foremost effort of the courts should be to continue the life till its natural end. This delegated authority should be exercised cautiously under extreme judicial checks. The Code of Criminal Procedure, 1973 makes it mandatory that “when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court”1. The High Court is duty-bound to ensure that only after concluding that no other punishment but for death will serve the ends of justice the death penalty shall be confirmed. This shows the seriousness and thoughtfulness that our legal system puts into a decision of death. Status quo ante in terms of life cannot be obtained, therefore, it is only fair that no such decisions are taken in haste.

Reformative, not retributive

It is never the endeavour of the State or the courts to take away life. The endeavour is to achieve an orderly society while protecting the rights and liberties of the citizens. The objective of the State, through laws and penalties, is to achieve deterrence, prevention, reformation and rehabilitation. Our penal system is reformative and not retributive. Wherever there seems a possibility of reformation, the courts may be inclined to not punish with a death sentence. We have witnessed some extremely gruesome crimes. Some were punished with death sentences, while a lot of them were given life sentences while a few may have walked out of jail with some punishment. Regardless of their outcomes the nation unanimously prayed for a death sentence in a number of these cases. But the judicious minds may not have concurred with the minds of ordinary citizens. After all, they deliver justice and not revenge. Francis Bacon2 said “revenge to be a kind of wild justice that offends the law and putteth the law out of office”. Many philosophers and jurists oppose capital punishment as they find death sentences to include an instinct of revenge which is barbarous. Capital punishment in modern jurisprudence will always be a matter of debate. Reformation and rehabilitation of a criminal is the primary object of punishment. The imposition of the death penalty nullifies that purpose. Retribution in the sense of vengeance is no longer an acceptable end of punishment. It is for these reasons noted jurists even opposed the hanging of those convicted in the infamous Nirbhaya case.3  Having said that, a Constitutional Bench of the Supreme Court4 had unanimously upheld the validity of capital punishment by reserving the death penalty. Law helps the element of retribution merge into the element of deterrence based on the philosophy of “gravest crime deserves the gravest punishment”. The Supreme Court held that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. Therefore, that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.5

Rarest of rare doctrine

Sentencing follows conviction, sentence is proportional to the degree of the crime. However, there is no straitjacket formula that can be applied in awarding punishment. Everything boils to the facts and circumstances of the case. Taking an example of Section 3026 of the Penal Code which states that “whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine”, shows that not all murders deserve a death sentence. Ordinarily, courts find life imprisonment to be sufficient, but the discretion lies with the judicial minds. The cases in which a death sentence can be given are a few with a peculiar set of facts being grave and gruesome thereby falling in the category of the rarest of rare crimes. The legislature in Section 354(3)7 mandates that in case of a death sentence the court must record special reasons which show that the sentence of life imprisonment shall not be a sufficient punishment.

Rarest of rare is an expression to convey the horrific and dastardly nature of the act. The actions which shake the conscience of human existence, which affect the very existence of our humanistic values. It is more to do with the perpetrator than the offense itself, when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The perpetrators of such acts cannot be considered to be capable of being reformed and pose a threat to society at large. Though debatable and unproven, a death sentence is considered a deterring force in the prevention of crime. The rationale given by the courts is that when a crime shocks the collective conscience of the community, sympathy in any form would be misplaced. It would shake the confidence of the public in the administration of the criminal justice system irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty.8 However, should a court take into account the desires of the community, because the community does not always look for legally valid solution and maybe blinded by hate and emotions.

Determining rarest of rare

The Supreme Court, over some time, has put several cases in the rarest of rare category. But, the power to judge a case to be in that category is discretionary. There are parameters to hold it, but those parameters are subjective. The Supreme Court stated that a court may look into aggravating and mitigating circumstances while imposing the death penalty in its discretionary power. The Supreme Court stated that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.9 This discretion may be arbitrary, while discretion and equity are the rightful prerogative of courts but in the matter of death, any discretion could lead to arbitrariness. What if something was considered rarest of rare a decade ago but has become not so rare owing to the decadent society. Would it be fair to let a man off a death sentence when someone had been hanged a few years ago with a unanimous verdict?

One of the observations in the infamous Nirbhaya case by the Supreme Court was where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing a crime in a diabolic manner, the accused should be shown no remorse and the death penalty should be awarded. However, in a recent case, the Supreme Court commuted the death sentence of a convict to life imprisonment whose 2-year-old niece fell prey to his savage lust and thereafter lost her life.10 This shows that how discretionary powers in matters of death sentence could be arbitrary. As the saying goes “Equity is as big as the Chancellor’s foot.” The Supreme Court has attempted to remove arbitrariness, yet the discretionary powers are wide. What constitutes the rarest of rare is not set in strict terms. What moved the society a decade ago may not affect the society to the same level as before. If capital punishment has to prevail, it must be under strict norms and set principles of law. One of the mitigating factors is the probability that the accused can be reformed and rehabilitated. If not, then the death sentence can be confirmed.

Conclusion

Articles 7211 and 16112 show that the framers of our Constitution had always intended it to be a part of our penal system. Therefore, capital punishments are not unconstitutional but they were aware of the seriousness and severity. It is for this reason, a remedy of clemency is provided enabling the executive of the State outside the purview of the judiciary. The judicial process is also carefully crafted in terms of the death penalty. The requirement of confirmation of a death penalty by the High Court is a step to ensure that there are no slips. However, the test of “the rarest of rare” is open to interpretation, which allows room for arbitrariness. The argument favour of capital punishment is that some people are beyond redemption and rehabilitation. But the biggest flaw in this argument is that one undermines the reformative capability of a human being. Buddhists believe anyone can attain enlightenment and the story of Angulimala is the prime example. Somewhere, it is the failure of the society to not tap into one’s highest potential, so we are punishing a soul for our failure? Dr Sarvapalli Radhakrishnan said “even the worst sinner has a future, even the greatest saint has had a past”. In the end, the courts and the Judges are doing God’s work as God created life. Will ending a life before its natural course be God’s work? But why let a life prosper who endangers the lives of several others. It is a simple calculation, more than one life is more important than one life. So, it is done in the name of the greater good. Abraham Lincoln said “my concern is not whether God is on our side; my greatest concern is to be on God’s side, for God is always right”. I guess we will never know if by allowing capital punishment we are being on God’s side or are just doing the easy thing.


Advocate, Delhi High Court.

1 S. 366, Code of Criminal Procedure, 1973

2 Francis Bacon, 1st Viscount St Alban also known as Lord Verulam, was an English philosopher and statesman who served as Attorney General and as Lord Chancellor of England. His works are seen as developing the scientific method and remained influential through the scientific revolution.

3 <https://www.thehindu.com/news/national/indira-jaising-urges-nirbhayas-mother-to-follow-sonia-gandhis-example/article>.

4 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20

5 Bachan Singh v. State of Punjab, (1980) 2 SCC 684

6 <http://www.scconline.com/DocumentLink/36kB36D7>.

7 When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. <http://www.scconline.com/DocumentLink/7S71Hz0t>.

8 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

9 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

10 Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596

11 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

12 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has held that it’s order dated 23.03.2020, wherein the Court had extended limitation period of appeals from high courts or tribunals on account of COVID-19 pandemic, cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure.

Setting aside the Madras High Court judgment, where it was had held that the Supreme Court order dated 23.03.2020 eclipsed all provisions prescribing period of limitation until further orders, including the time prescribed under Section 167(2) of the code of Criminal Procedure, the bench said,

“neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time under Section 167(2) CrPC nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.”

On 23.03.2020, the Court had extended the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The Court, in the present order explained that the said order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/ appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right.

“When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings.”

Stating that the scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person, the Court explained that without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.

Noticing that the law of limitation bars the remedy but not the right, the Court said that the Investigating Officer in the present case could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).

On High Court’s opinion that the lockdown announced by the Government is akin to proclamation of Emergency, the Court said,

“The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.”

It is pertinent to note that another bench of Madras High Court had, in Settu v. State, Crl.OP(MD)No. 5291 of 2020, already considered the judgment of this Court dated 23.03.2020 and noticing that personal liberty is too precious a fundamental right, it had held,

“The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of the respondent police, the direction of the Hon’ble Supreme Court which is intended to save and preserve rights would result in taking away the valuable right that had accrued to the accused herein.”

The single judge in the impugned judgment before the Court had called the above mentioned Madras High Court order uncharitable. On this the Court said that the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person. It, further, said that all Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram.

“A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment.”

[S. Kasi v. State, 2020 SCC OnLine SC 529 , decided on 19.06.2020]


Also read:

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection for the offences punishable under Section 376(2)(i)(n) of the Penal Code and Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The FIR was lodged by the father of the victim on 26-09-2018 with the allegations that his daughter told him about the mental and physical harassment given by the applicant/accused since 2014. The victim had mentioned about applicant had taken few photographs for which he was blackmailing and harassing her along with abusing her on the phone and forcing him to make physical relations with him. The counsel for the applicant, Vinod Sharma submitted that applicant was an innocent person; no date or month of the physical relations had been mentioned in the FIR; according to the medical report dated 27-09-2018, no sexual intercourse had been committed with the victim in last few days; no said photographs were produced by the prosecution; no rape or sexual intercourse had ever been committed by the applicant on the prosecutrix; in medical report dated 27.-09-2018, no sign of rape had been found and there was no swelling, no injury, no bleeding; the applicant has no criminal history; he was in custody since 27-09-2018; prosecution had not filed so far any reliable certificate of date of birth of the victim.

The Court while allowing the bail relied on the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 where the Supreme Court had observed that the personal liberty was a very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case and in the present case the attendance of the accused could be secured without having him to be put in custody. [Amit v. State of Uttarakhand, 2020 SCC OnLine Utt 121, decided on 03-03-2020]

Case BriefsForeign Courts

Supreme Court of United Kingdom:  A five-Judge bench comprising Lady Hale, Lord Kerr, Lord Wilson, Lord Black, Lord Lloyd Jones, JJ. disposed of this matter.

The facts involved a patient PJ, a 47-year-old who suffered from a mild borderline learning disability, accompanied by aggressive behavior and seriously irresponsible behavior. The Mental Health Act, 1983 was so amended that it allowed patients like him to be introduced in the community with a Community Treatment Order (CTO) issued by a Responsible Clinician (RC). PJ’s contention before the Mental Health Review Tribunal was that the arrangements under CTO amounted to an unlawful deprivation of liberty due to excessive monitoring and boundaries. The MHRT upheld the CTO stating that the need for CTO preceded any human rights issues. The Court of Appeals stated that the restriction of movement was such that it amounted to a violation of personal liberty, however, MHRT has no power to discharge the CTO, thus the appeal lies before the Supreme Court. The Court held the CTO to be in contravention of personal liberty since the RC has no power to impose such conditions which restrict movement. The appeal was allowed.[Welsh Ministers v. PJ, [2019] 2 WLR 82, decided on 17-12-2018]