Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside an anticipatory bail order on the ground that pre-requisites for issuing such an order were not satisfied.

In the present case, the High Court of Lahore granted anticipatory bail to one Muhammad Akram who was required in a criminal case registered under Section 489-F of Pakistan Penal Code, 1860 upon failure of a bank cheque issued by him towards re-payment of loan. The learned judge confirmed ad-interim bail on the ground that respondent did not ‘misuse’ ad interim bail and that he was going to be released on post-arrest bail if at all, remitted into custody.

The Court opined that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trumped-up charges through abuse of process of law. Therefore, a person seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide.

Reliance was placed on Hidayat Ullah Khan v. Crown, 1948 SCC OnLine Lah 20 wherein it was held that, anticipatory bail is granted to protect innocent beings from abuse of process of law, therefore a petitioner who sought anticipatory bail should have been able to demonstrate that intended arrest was with malafide intentions or abuse of process of law, wherein Court must not hesitate to rescue innocent. But in the case at hand, these situations were missing.

Thus, the impugned order was set aside as it was not in accordance with settled judicial principles and anticipatory bail granted to the private respondent was set aside.[Rana Abdul Khaliq v. State, 2019 SCC OnLine Pak SC 6, decided on 13-05-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. allowed anticipatory bail application of a person accused of posting obscene remarks on the Facebook page of a woman who was a member of a political party.

Applicant herein and a male member of CPI(M) party were part of a television debate on the correctness or otherwise of Supreme Court’s judgment on the right of women devotees of menstrual age to enter and worship in the Sabarimala Temple (Indian Young Lawyers Assn. v. Union of India, 2018 SCC OnLine SC 1690) wherein the member of CPI(M) strongly took a stand in favour of the said judgment. Being of the opinion that traditions must be followed and women must not be permitted to enter Sabarimala, applicant was agitated by the stand taken by CPI(M)’s member and he made certain posts on Facebook page of the said member’s wife [who is also a member of CPI-M, a media person and also an Assistant Professor of Law] describing her husband in highly abusive language and also made disparaging remarks regarding faith and religion. He also sent obscene messages to the lady with the intention to insult her womanhood and reputation and to cause her mental distress. The lady filed a case against him under Section 509 of the Penal Code, 1860, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act, 2011. Hence, the present application for pre-arrest bail.

Learned counsel appearing for the applicant, Mr. Siraj Karoly, submitted that offences under Section 509 IPC and Section 120(o) of the Kerala Police Act are bailable offences. Further, the nature of the factual allegations raised in FIR did not disclose an offence under Section 67 of IT Act. Whereas, the learned Public Prosecutor appearing on behalf of the State contended that the impugned publication on complainant’s Facebook page would be covered under Section 67 of IT Act.

The Court observed that even if the words are extremely unparliamentary, unprintable and abusive in nature, so long as the words in question are not one capable of arousing sexual thoughts in the minds of the hearers and does not involve lascivious elements arousing sexual thoughts or feelings or the words do not have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, it cannot be brought within the broad contours of the penal provisions as contained in Sections 294 and 292 of the Penal Code corresponding to Section 67 of the Information Technology Act, 2000.

The Court noted that presumably, the accused-applicant had made such comments as he was a Hindu and complainant’s husband was a Muslim. It also expressed lament at the increasing intolerance, for views/ opinions of other people, in the society and remarked that perhaps the same was a result of increasing addictive use of social media.

However, confining itself to the application at hand, it held that custodial interrogation of the applicant was not warranted in the facts and circumstances of the case, and thus granted anticipatory bail to the applicant.[Sreekumar V. v. State of Kerala, 2019 SCC OnLine Ker 1305, Order dated 03-04-2019]

Case BriefsHigh Courts

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

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

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

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

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

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