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 

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a significant case, the Division Bench of Indira Banerjee and J.K. Maheshwari, JJ., upheld pre-arrest bail of actor-producer Vijay Babu who was alleged to have committed rape of an actress.

The Court, however, modified the bail condition that the accused can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022, and directed that the accused may be interrogated as and when necessary, even after 03-07-2022.

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Pertinently, by the impugned order, Single Judge of the Kerala High Court had granted pre-arrest bail to the accused by holding that there is no restriction in law that pre-arrest bail cannot be granted to a person sitting abroad; which was doubted by a co-equal Bench of the High Court. Consequently, the question as to whether pre-arrest bail can be granted to a person sitting abroad was referred to a larger Bench. Though the Supreme Court did not refer to the aforementioned question, it has upheld the grant of pre-arrest bail to the accused.

After considering the pleadings and other materials on record, the Court declined to interfere with the impugned order. The Court stated,

“We are also not inclined to interfere with the conditions imposed in the impugned order for grant of pre-arrest bail, except sub-paragraph (2) of paragraph 27 of the impugned order which reads as under:

(2) The petitioner can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation.”

Hence, the Court modified the bail condition by deleting the words “for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive)” and held that the accused may be interrogated as and when necessary, even after 03-07-2022.

The accused was directed to comply with all other conditions imposed by the High Court as also the conditions for grant of pre-arrest bail enumerated in Section 438(2) of the CrPC. Bail conditions affirmed by the Court are as follows:

  1. The accused shall not leave the State of Kerala without prior permission of the jurisdictional Court;
  2. shall appear before the Investigating Officer as and when called;
  3. shall not contact or interact with the victim or any of the witnesses;
  4. shall not indulge in any form of attack on the victim or her family through social media or any other mode;
  5. shall not harass, defame, denigrate or ridicule the petitioner or members of her family in any manner whatsoever or publish or post any comments, writing, picture, etc. in relation to the incident on social media or otherwise;
  6. shall not commit any other offence while on bail
  7. shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police officer;
  8. if the impounded passport of the accused is returned or if he is issued with a fresh passport, he shall immediately surrender the same to the Investigating Officer.

[x v. Vijay Babu, 2022 SCC OnLine SC 805, decided on 06-07-2022]


Advocates who appeared in this case :

Mr. Arjun Singh Bhati, AOR, Mr. C. K. Sasi, AOR, Advocate, for the Petitioner;

Mr. Siddharth Luthra, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Sweena Nair, Adv., Mr. Lakshay Saini, Adv., Ms. Anasuya Choudhury, Adv. and Mr. Angaj Gautam, Advocates, for the Respondent(s).


Also Read

Kerala High Court grants anticipatory bail to cine artist & producer Vijay Babu in a rape case

Kerala High Court| Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide


*Kamini Sharma, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

  Kerala High Court: While adjudicating a question of law as to whether pre-arrest bail can be granted to an accused while he is sitting abroad, P.V. Kunhikrishnan, J., doubted the findings of Single Judge in Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158. Answering the question of law in negative the Court stated, 

“If an accused in a case leaves India after knowing that a case with grievous offences is registered against him and files a bail application before the High Court while sitting abroad, he is not entitled to an order not to arrest especially when there is no such power under Section 438 CrPC.”  

Factual Backdrop 

The petitioner was alleged to have committed offences punishable under Sections 11 and 12 of the Protection of Children from Sexual Offence Act, 2012 (POCSO), Section 3 of the Indecent Representation of Women (Prohibition) Act, 1986, Sections 354A, 354D, 292A, 290, 507, 503, 465, 466, 500, 509 Penal Code, 1860 and Sections 67, 66(A) and 66(E) of the Information Technology Act, 2000. Fearing her arrest, the petitioner had approached the Court with an application for pre-arrest bail.  

When the bail application came up for consideration before the Court, the Court noted that the petitioner was in Kuwait when the bail application was filed. Therefore, the Court held that the pre-arrest bail application was not maintainable in the light of the judgment of Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928 

However, before the order rejecting bail application could be delivered, the Single Judge of the Kerala High Court granted pre-arrest bail to a similarly placed accused in Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158 

Noticeably, in Shafi S.M.’s case (supra), it had been held that a person sitting in another country cannot file an application under Section 438 of the CrPC apprehending his/her arrest.  

The Contrary Decision of Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158  

But in Vijay Babu’s case (supra) the Single Judge distinguished the Shafi’s case (supra) by holding the following:   

“…merely because the petitioner is outside the country, the same by itself cannot deprive him of his right to have his application for anticipatory bail considered by this Court. The decision referred to in Souda Beevi v. S.I., 2011 SCC OnLine Ker 4242, can be said to be impliedly overruled and decision in S.M.Shaffi’s case (supra) did not take notice of the judgment in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and therefore, could be regarded as judgment sub silentio.” 

On the other hand, all that those two decisions say is that, at least before the final hearing, the Court must be convinced that the applicant is within the jurisdiction of the Court so that the conditions if any imposed, could be effectively enforced.  

Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.” 

Observations & Opinion of the Court 

Doubting the aforementioned interpretation, the Court stated, 

“I am in respectful disagreement with the above observation of the learned Judge. When in Shafi’s case (supra) this Court clearly stated that an application under Section 438 CrPC cannot be filed before this Court by an accused sitting in a foreign country, the learned Single Judge ought not have decided the matter without referring the same to the Division Bench.” 

The Court opined that the direction not to entertain a bail application in a situation where the accused filed a bail application sitting in a foreign country and that also absconding after the registration of the case against him and further openly challenging the law of the land, with the knowledge of the registration of the case against him is not against the dictum laid down in Sushla Aggarwal’s case (Supra) 

Further, the Court expressed that a person sitting abroad need not be invited to the country by a court of law invoking the powers of interim bail under section 438 CrPC and that it is the duty of the prosecuting agency to book such a person.  

Question of Law Referred to Larger Bench  

Since a different view has been taken in Vijay Babu’s case (supra), the Court framed the following questions of law and requested the Registry to refer the same to the Chief Justice for adjudication by a larger Bench:  

  1. “If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a nonbailable offence against him, and thereafter if he file bail application under Section 438 CrPC, whether the bail court should entertain such a bail application?  
  2. When an accused went abroad, after knowing that he is an accused in a nonbailable offence, and thereafter filing a bail application before this Court, whether he is entitled interim bail as per Section 438(1) CrPC?  
  3. Whether the bail court has jurisdiction to pass orders restraining the Police in arresting accused without passing interim bail orders as per Section 438(1) CrPC?”  

Conclusion  

With regard to the case at hand, the Court observed that the petitioner was in the Country. Since this bail application was adjourned for consideration by a Division Bench, the Court opined an interim bail could be granted to the petitioner till the disposal of the bail application. The Court remarked,  

“Petitioner is a woman. It is true that the allegation against the petitioner is serious. The bail application is to be heard in detail. But there is no allegation in this case that the petitioner left India after knowing about the registration of this case. Moreover, ADGP also has not seriously opposed granting interim bail to the petitioner.”  

 Therefore, the Court granted interim bail to the petitioner with the direction that in the event of arrest, the petitioner shall be released on bail on executing a bond of Rs.25,000 with two solvent sureties for the like sum. Additionally, the Court clarified that the Investigating officer is free to interrogate the petitioner for the purpose of investigation.  

[Anu Mathew v. State of Kerala, 2022 SCC OnLine Ker 3372, decided on 27-06-2022] 


Appearance by: 

For the Petitioner: M/S E.D. George and Linu G. Nath, Advocates  

For the Respondent: Public Prosecutor  


Kamini Sharma, Editorial Assistant has put this report together

 

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., 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.

Apprehending his arrest in a non-bailable case, the petitioner had approached the Court for pre-arrest bail.

The Petitioner was alleged to have wrongfully restrained a doctor, the de-facto complainant herein, and threatened her while she was on her way from the doctor’s room to the casualty of the hospital, thereby causing obstruction to her official duty and committing the offences under Sections 341, 353 and 506 of the Penal Code, 1860 and Sections 3 and 4(1) of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 (‘Healthcare Act').

Assailing the allegations, the petitioner contended that he had met with an accident on 10-04-2022 and due to persistent pain, was advised to obtain an X-ray report of his spine. However, despite waiting for more than 1½ hours, his X-ray was not taken, and unmindful of his condition, the de-facto complainant reacted in a hostile manner and threatened not to treat him. Later, he came to know that a complaint was filed against him, resulting in the registration of the present crime.

To ascertain the apprehension of offence against the petitioner, the Court relied on the definition of the word ‘violence’ under Section 2(e) of the Healthcare Act, which reads as below:

“Section 2(e) “violence” means activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions.”

Thus, the Court opined that every harm, intimidation, obstruction or hindrance to a healthcare service person, in discharge of duty is treated as violence. Noticing that Section 4(4) of the Healthcare Act, violence against healthcare service persons is made non-bailable, the Court held that the salutary objective behind the Healthcare Act and the wide meaning ascribed to the word violence, cannot be ignored while considering an application for pre-arrest bail.

The Court remarked,

“The statute regards even an obstruction or hindrance if committed on a healthcare person as a grave offence. Thus, it cannot be held that absence of an assault on the doctor entails a person accused of an offence under the Healthcare Act to be released on pre-arrest bail.”

Considering the wide definition of the term ‘violence’, nestled under the umbrella of a non-bailable offence, the Court held that granting pre-arrest bail to an accused who is alleged to have committed an offence under the Healthcare Act would be incongruous to the legislative mandate.

A physician with trepidation, a surgeon with trembling hands and a disquiet nurse can lead to the wrong diagnosis, failed surgeries and improper nursing care. Life of several patients could fall into peril. Consequently, the public at large can become prejudiced.”

Therefore, the Court denied granting pre-arrest bail to the petitioner. However, the Court added that if the petitioner surrenders himself before the Investigating Officer within seven days, the officer shall subject him to interrogation and if after interrogation petitioner is arrested, the Investigating Officer shall produce him before the jurisdictional Magistrate immediately, and if any application for bail is preferred, the same shall be considered by the Magistrate in accordance with the law.

[Arun P. v. State of Kerala, Bail Appli. No. 3186 of 2022, decided on 20-06-2022]


Advocates who appeared in this case :

R. Sreehari, Advocate, for the Petitioner;

Noushad K.A., Public Prosecutor, for the State of Kerala.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158, decided on 22-06-2022]


Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Shircy V. J., dismissed a bail application wherein a man committed rape with a woman and misappropriated her money after putting her under threat.

An application for pre-arrest bail was filed, wherein the petitioner was accused of offences punishable under Sections 376, 406, 323 and 506(i) of the Penal Code, 1860.

Prosecution alleged that a petitioner who was the neighbour of the de facto complainant and friend of the husband of de facto complainant had trespassed into her residential house and committed rape on her and thereafter he threatened her not to divulge the same and committed the very same offence on certain days and he had also taken her ATM card and withdrawn money from her account sent by her husband who was working abroad and misappropriated the same.

By putting her under threat, he misappropriated an amount of Rs 15 lakhs.

Analysis, Law and Decision

High Court noted that the petitioner who is a neighbour and a friend of the husband of the defacto complainant exploited the situation and misappropriated her money and also subjected to rape after putting her under threat.

Bench stated that the investigating agency has to go deep into the allegations levelled against the petitioner. Hence, if the pre-arrest bail was granted, it would definitely affect the investigation of the case adversely and he would also get a chance to abscond and influence the witness of the prosecution.

Therefore, pre-arrest was declined. [Sujeesh v. State of Kerala, 2021 SCC OnLine Ker 9605, decided on 1-3-2021]


Advocates before the Court:

For the Petitioner: Sri Rajan Varghese K., Advocate

For the Respondent: By Public Prosecutor

Case BriefsSupreme Court

Supreme Court: In a breather to SK Supiyan, West Bengal Chief Minister Mamta Banerjee’s Election Agent in the Vidhan Sabha Elections held in 2021, the bench of L Nageswara Rao and Abhay S. Oka, JJ has granted him anticipatory bail in the Nandigram murder case but has directed him to fully cooperate with CBI for investigation and to remain present for investigation as and when called upon by the investigating officer. The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.

One Debabrata Maity sustained injuries on 3rd May 2021 in an alleged incident of mob attack. He succumbed to injuries on 13th May 2021.

Senior Advocate Kapil Sibal urged on behalf of Supiyan that CBI tried to implicate him for political reasons as he was the election agent of the Chief Minister of West Bengal in the Vidhan Sabha Elections held in 2021. It was submitted that most of the witnesses are workers of the Bharatiya Janata Party and that as per media reports Suvendu Adhikari, who is a leader of BJP who contested election against the Chief Minister, in statements made by him in October 2021, stated that Supiyan would be named by the investigating agency and will be arrested.

Aman Lekhi, Additional Solicitor General of India, on the other hand urged that this is a case of a serious offence punishable under Section 302 of IPC and therefore, custodial interrogation of Supiyan is necessary. Relying upon statements of the witnesses recorded under Section 164 of CrPC, he urged that looking into the seriousness of the allegations, Supiyan does not deserve the protection of pre-arrest bail.

The Supreme Court took note of the crucial fact that though two charge sheets have been filed on 5th October 2021 and 9th January 2022, Supiyan has not been named as an accused therein. While CBI is relying upon statements of 5 witnesses recorded under Section 164 of CrPC, the statements of the first two witnesses were recorded on 7th September 2021 and 11th November 2021 respectively but the appellant was not named in both the charge sheets filed thereafter. Though the statement of Shri Manoj Kumar Bera was recorded on 18th November 2021, he was not cited as a witness in the first two charge sheets. The statements of the other two witnesses have been belatedly recorded on 24th January 2022.

Hence, considering the peculiar facts of the case, the Court held that Supiyan deserved to be granted anticipatory bail.

[SK Supiyan v. CBI, 2022 SCC OnLine SC 164, decided on 09.02.2022]


*Judgment by: Justice Abhay S. Oka


Counsels

For appellant: Senior Advocate Kapil Sibal

For CBI: Additional Solicitor General of India Aman Lekhi

For complainant: Senior Advocate P.S. Patwalia

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected an application filed for seeking pre-arrest bail whereby the petitioner was apprehending arrest registered under Sections 353,333,307 and 384 read with Section 34 IPC.

In the FIR dated 12-08-2021 informant alleged that he was going to his office for performing duty. Accused along with his associates stood on his way and attacked him with an iron rod. The accused gave several blows on his forehead with the said iron rod. Besides physically assaulting him, accused also destroyed his official papers and robbed him of a sum of Rs 7000/-.

Counsel for the applicant submitted that it would emerge from the injury report that the informant received simple injury. Counsel, therefore, submitted that the allegations of the informant that the accused gave repeated blows with an iron rod on his fore head was entirely false because had it been so, he would have received grievous injuries.

Counsel for the respondent submitted that the accused attacked the informant deliberately with deadly weapon when he was in the discharge of his official duty. He further submitted that the informant and the neighbouring people who witnessed the occurrence had consistently supported the allegations. It was contended that arrest and detention of the accused was necessary to ascertain the motive of the crime and book his associates because the FIR itself would show that the accused was being accompanied by his associates while committing the said offence.

The Court noted that from the injury report of the informant that after the alleged assault, he was treated in Gomati District hospital where doctor found swelling injuries on his neck, fore arm and other parts of his body and cut injuries were also found on his forehead and left elbow which supports the allegation that blows were inflicted by the accused on those parts of his body.

The Court was of the view that allegations against the accused were serious and sufficient incriminating materials supporting those allegations were available on record. Pre arrest bail of the accused at this stage is likely to impair a fair investigation.

The Court rejecting the application held that it would not be appropriate to grant pre-arrest bail to the accused.[Pran Krishna Das v. State of Tripura, 2021 SCC OnLine Tri 468, decided on 15-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Shircy V., J., rejected the bail application of a doctor and his family accused of dowry demand and cruelty against his wife within seven months of marriage. Calling ‘matrimonial homes the most dangerous place to live’ due to harassment, abuse and torture, the Bench remarked that the number of cases of attack towards married women in our country is alarming, though stringent laws are there and the same has to be stopped for ever.

Apprehending arrest in connection with offences punishable under Sections 294(b), 341, 323, 324, 325, 498(A) r/w 34, the applicant had approached the Court to seek pre-arrest bail. The facts of the case were such that the applicant had been married to the defacto complainant. The complainant contended that she was gifted with gold ornaments, a car, money, as well landed property by her parents; but she was subjected to physical and mental torture as the applicants were demanding more money.

The complainant contended that even her mother-in-law had assaulted her while she was residing in her matrimonial home. When the physical and mental torture became unbearable she contacted her parents so as to return to her paternal house. However, it was the case of the complainant that when her father and brother had come to her matrimonial house to take her, the applicants had wrongfully restrained and assaulted them. Moreover, the complainant was also attacked and sustained fracture when she intervened to rescue them. Her father had sustained severe injuries on his head and spinal cord. Her brother also sustained fracture in the brutal attack.

The applicant argued before the Court that he was a doctor who joined Government service only on 03-05-2021 and that he had been falsely implicated in the case at the instance of the defacto complainant as she wants to shift her residence and to set up a separate residence for herself and her husband-applicant 1.

After pursuing the medical records of the complainant as well as of her father and brother, the Bench stated that all these documents would reveal that they had sustained physical assault and serious injuries from the hands of the applicants. Noticing that the complainant was also a young doctor was manhandled by the applicants within seven months of her marriage and the allegations levelled against the applicants were grave and serious in nature, the Bench stated,

“Harassment, abuse and torture both mental and physical towards married ladies are increasing day by day in our country to pressurize them to bring more wealth to the family of the bridegroom to improve their financial situation. Though so many cases are being registered against husbands and in laws there is no change in the attitude of the society towards married women and family members.”

Hence, the Bench opined that if anticipatory bail is granted to such wrong doers definitely, that will give a ‘wrong message’ to society. The Court stated,

Even though the applicant 1 is a doctor just started his service in the Government sector and is engaged with Covid duties, I do not think that this is a fit case in which pre-arrest bail can be granted to him.”

In the light of the above, and considering the fact that prima facie, the applicant’s brother and parents also joined to commit the alleged offences, the Bench held that they did not deserve pre-arrest bail as requested. Accordingly, the bail application was rejected with the liberty to the applicants to surrender before the jurisdictional Magistrate and seek regular bail.[Sijo Rajan R v. State Of Kerala, 2021 SCC OnLine Ker 2920, decided on 14-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicants: Adv. K.Saneesh Kumar

For the Complainants: Advs. Thomas J.Anakkallunkal and Maria Paul

For the State: P.P. Ajith Murali

Kerala High Court
Case BriefsCOVID 19High Courts

Kerala High Court: K.Haripal, J., granted bail to the Police Officer accused of manhandling a doctor and subjecting him to violence. The Bench, though, stated,

“It is quite unfortunate that in spite of attending the duties in most diligent manner, they (doctors) have to suffer such indignation which go to the extent of suffering physical and verbal assault.”

 Background

The facts of the case were such that an FIR was registered under Sections 341, 294(b), 323, 332 read with 34 of the Penal Code,1860 and Sections 3 and 4 of the Kerala Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012, against the petitioner-a civil Police officer for man handling a doctor.  The case of the complainant doctor- Dr. Rahul Mathew was that he had been on night duty on  13-05-2021, when at about 04.15 A.M., a lady by name Laly was taken to the casualty for treatment. As it was reported that she was tested covid positive and was undergoing quarantine, though the complainant had rushed to the patient even without being in PPE kit; taking into consideration the urgency of the matter, but unfortunately, by the time he reached to the patient, she had died.

Alleging that there was delay in attending the deceased, the petitioner-son of the deceased abused the complainant and tried to manhandle him. Later, at about 7.30 A.M., two persons entered the complainant’s room, abused him, caught hold of his neck and slapped him. The complainant contended that the patient had died due to Covid complications. Even though her oxygen level was low, she was not taken to hospital on time.

On the other hand, the case of the petitioner was that the entire incident had happened due to the shock of death of his mother, that his mother did not get prompt medical attention when she was taken to hospital in a breathless condition. It was submitted by the petitioner that even after 10 to 15 minutes of their reaching the hospital, attention was not given; finally only with the help of an acquaintances, who was working as a helper in the hospital, the deceased was given oxygen; and by the time the doctor and nurses came, his mother had died.

Findings of the Court

Opining that, though the incident had happened in an emotionally charged stage, still the action of the petitioners could not be justified, the Bench stated,

“Even if they had a case that there was negligence on the part of the medical officer and hospital staff, that cannot be addressed by showing muscle power and manhandling the doctor in charge.”

The Bench stated that the version of the complainant indicated that on realising the seriousness of the situation, he had rushed to the place where the patient was brought even risking his own life without wearing a PPE kit. Thereafter, he suffered indignation and also physical assault.

“The petitioner is not an ordinary person but is part of the police department, a uniformed force, is expected to show utmost discipline. But he was taking law into his hands and was thrashing the medical officer in his room.” 

Considering the above mentioned, the Bench remarked that, “We cannot forget the sacrifices and devotion to the duty exhibited by the medical officers and health staff especially during the trying times when the pandemic condition was at its peak. The worsening situation could be bridled in our State only because of the devoted discharge of duties in a most religious manner by the medical staff. The huge pressure of work in a Government hospital is seen to be believed.”

However, noticing that the petitioner was a Civil Police Officer on probation, who was already under suspension due to his conduct and that the prosecution had no contention that he may flee from justice and will not make himself available for investigation and Trial, if found necessary; the Bench granted pre-arrest bail to the petitioner on condition to execute bond for Rs.50,000.[Abhilash Chandran v. State of Kerala, 2021 SCC OnLine Ker 2649, decided on 25-06-2021]


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance before the Court by:

For the petitioner: Sr. Adv. P.Vijaya Bhanu, Adv. Nirmal V Nair, Adv. P.M.Rafiq, Adv. Manu Tom and Adv.  Sruthy N. Bhat

For the respondents: PP Santosh Peter and Adv. P. Sreekumar

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay J., rejected a bail application which was filed in the matter of an FIR registered under Sections 377 and 506 of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO hereunder) for committing sexual assault on the son of the informant.

The mother of the victim lodged the written ejahar alleging that the accused who was a private tutor of her son, a boy aged 9 years, used to give private tuition to her son regularly in the house of the accused of the last 3 months. When the informant found her son reluctant to go to his said private tutor and she also noticed that her son was not feeling well she asked him as to what happened to him. In reply, he told his mother that he was feeling pain in his rectum because his private tutor inserted his genital organ into his rectum at the time of his taking tuition from him. Knowing this, mother of the victim had immediately taken her son to the hospital where injuries were found in his rectum.

Apprehending arrest, the accused had approached this court for pre-arrest bail.

The Court after perusing all the records observed that the victim became very upset after the occurrence and after the medical tests when they came to know about the occurrence the accused private tutor also left his home. The Court further observed that same statement had been given by her husband and one of the neighbours who came to know about the occurrence from the parents of the victim. The 9 years old victim had also unfolded the entire incidence before the Judicial Magistrate who recorded his statement under Section 164(5) CrPC. About the medical evidence it was found that the IO had already approached the medical officer to record his findings in the medical report and such report was awaited.

The Court while rejecting the bail application found that materials available on record had made out a strong prima facie case against the accused petitioner and in view of the above, this court was of the view that this was not a fit case in which the accused may be given the benefit of custodial immunity by granting pre-arrest bail.[Indrajit Ghosh v. State of Tripura, 2021 SCC OnLine Tri 112, decided on 26-02-2021]


Suchita Shukla, Editorial Assistant ahs put this story together.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: H.S. Madaan, J., while hearing the instant petition seeking pre-arrest bail, expressed concern regarding plight of farmers, “If some middle man successfully usurps the price of crops and is allowed to go scot-free, that shall result in perversity of the justice and would amount to great injustice to the affected complainant/farmers.”

 In the instant case both the petitioners were husband and wife and stakeholders in the commission agency business. An FIR was lodged against them under Ss. 420, 120-B, 406 IPC, alleging that they purchased Kharif (rice crop) and in spite of receiving the amount from the Government, the same had not been paid to the  farmers concerned according to J forms. It was alleged in the complaint that the petitioner-accused had used the money for their own purposes and had paid only Rs. 28 lakhs out of total amount of Rs.70 lakhs, whereas remaining amount was misappropriated by the petitioner-accused by committing fraud of about 87 lakhs, which included payments for earlier crops as well as for Kharif crop. It was also alleged that the petitioner-accused own big properties which had been created with the money belonging to innocent farmers. Further, it was alleged that the petitioner-accused had also committed fraud at Khanna about 30 years ago and a criminal case was registered against him at that time.

Noticing grave and serious allegations against both the petitioner-accused of having misappropriated the money payable to the complainants, the Bench expressed that there was no plausible and satisfactory explanation as to why the petitioner-accused had not made payment to the complainants after receiving the price of crops sold by them to the Government through commission agency. The Bench exclaimed, “The Court cannot lose sight of the fact that hard earned money running into lakhs of rupees belonging to the complaint/farmers has been usurped by the petitioners, who are stated to have created huge properties by use of this money.” While relying on the judgment of the Supreme Court in the State v. Anil Sharma, (1997) 7 SCC 187,  the Bench said, “Custodial interrogation of the petitioners is definitely required to find the necessary details of the criminal acts committed by them and for the purpose of recovery of money. In case custodial interrogation of the petitioners is denied to the investigating agency that would leave many loose ends and gaps in the investigation affecting the investigation being carried out adversely.”

It was held that both the petitioner-accused were liable to pay dues of the farmers, as leniency and misplaced sympathy could not be shown to the petitioner-accused by granting concession of pre-arrest bail to them and ignoring the plight of the farmers, who had worked hard and had put in a lot of efforts in the agricultural operation hoping to get reward by having good crops and then to earn their livelihood by sale of such crops. Therefore, the petition was dismissed and request for pre-arrest bail was rejected. [Darshna Rani v. State of Punjab, 2021 SCC OnLine P&H 189, decided on 25-01-2021]


Kamini Sharma, Editorial Assistant has put this story together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., allowed pre-arrest bail to the applicant accused of raping a women whom he allegedly met on facebook.

Accused preferred a pre-arrest bail application for offence punishable under Section 376(1) of the Penal Code, 1860.

Petitioner and informant were in a relationship for 1.5 years and petitioner had promised to marry the informant.

When informant had reached Kozikhode for purchasing some clothes for their marriage, she was taken to a lodge, where both petitioner and informant stayed together and informant was subjected to penetrative sexual abuse.

Petitioner also took some pictures of the informant and threatened with the same to obtain a sum of Rs 40,000 and gold chain.

Decision

Bench noted that according to the de facto complainant, she was in a relationship with the petitioner.

Court relied on the Supreme Court case of Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra [2019 (1) KHC 403] wherein it was held that there is a distinction between rape and consensual sex.

Bench stated in the present matter that the question to be considered is:

Whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust?

“…former is not rape but the latter will fall within the ambit of cheating and deception.”

Distinction between mere breach of a promise and not fulfilling a false promise

Further Court also observed that,

if the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, then such consent cannot be said to be given under a misconception of fact.

Thus, in view of the above, Court’s opinion was that the custodial interrogation of the petitioner was not necessitous for an effective investigation.

Hence, the present application was allowed with certain conditions. [Shanil v. State of Kerala, 2020 SCC OnLine Ker 2625 , decided on 06-07-2020]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Harsimran Singh Sethi, J., held that, that once an offence takes place from the a mobile phone number, then the registered owner of the number has to explain as to how the said number was used for the commission of the offence.

Present petition was filed for grant of pre-arrest bail with regard to FIR under Section 420 Penal Code, 1860 read with Section 34 IPC and Section 66 of IT Act, 2000.

Petitioner’s counsel, Padamkant Dwivedi, submitted that the petitioner had been unnecessarily roped in the above-mentioned FIR and the allegation alleged against him were totally incorrect and false.

Deputy Advocate General, Ajay Pal Singh Gill, filed a status report of the investigation wherein it had been mentioned that the number from which fake call was received, it was registered in the name of the petitioner.

Bench stated that once the mobile phone which has been used in the commission of the offence is registered in the name of the petitioner and the said number had been issued after bio-metric verification of KYC of the petitioner, it is the petitioner who has to explain as to how the said number was used for the commission of the offence.

Once the recovery of the phone is to be effected, the custodial interrogation of the petitioner is necessary so as to find out as to whether petitioner is also involved in any other cases of the similar nature or not.

Court found no ground to allow the petitioner the benefit of pre-arrest bail. [Shubham Singh v. State of Punjab, 2020 SCC OnLine P&H 702, decided on 03-06-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Shircy V, J. granted pre-arrest bail to the petitioners considering no criminal antecedents having been reported against the petitioners.

In the present case, the prosecution has alleged that the accused persons had wrongfully restrained the complainant, abused him and attacked him with a wooden log and caused injuries to him. It was also alleged that a blow to the head was aimed at him but was averted by the complainant which otherwise would have caused his death. 

The learned counsel representing the petitioners, P. Vijaya Bhanu submitted that the petitioners are innocent and thereby requested pre-arrest bail.

The Public Prosecutor, Sreeja V submitted that the first petitioner has already been granted regular bail and the allegation against these petitioners is that they have joined with the first accused to inflict injuries on the defacto complainant.

The Court upon perusal of the facts and circumstances of the case granted pre-arrest bail to the petitioners considering there was no previous criminal background of the petitioners. [Vishnu v. State of Kerala, 2020 SCC OnLine Ker 343, decided on 28-01-2020]

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]

Kerala High Court
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]

Kerala High Court
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]