Legislation UpdatesNotifications

Allahabad High Court issued a notice requesting learned counsels to refer to the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 (UP Act 04/2019) U.P. Government Notification no. 1058(2)/LXIX-V-1-19-1(KA)-20-2018 dated 06-06-2019 for grant of Anticipatory Bail under Section 438 CrPC to person apprehending arrest.

Following is the direction of the High Court in regard to the filing of an application for Anticipatory Bail:

(1) The application must bear Court fee of Rs. 5/- as prescribed for application.

(2) The application must be supported by an affidavit of the person apprehending arrest.

(3) The Second paragraph of the affidavit filed in support of the application must contain the reason to believe that deponent
apprehending arrest on accusation of a non-bailable offence with particulars i.e. Case Crime Number, Police Station, and Section(s) under which arrest is apprehended, if the same is known to the deponent.

(4) The third paragraph of the affidavit filed in support of the application must contain that apprehended accusation does
not fall under the offences provided under sub-section (6) of the Section 438 CrPC.

(5) The fourth paragraph of the affidavit filed in support of the application must contain that the deponent has not filed any previous application under Section 438 CrPC before this Hon’ble Court either at Allahabad or Lucknow or before any other High Court in India, pertaining to the same subject matter.

(6) The fifth paragraph of the affidavit filed in support of the application must contain information as to whether any application under Section 438 CrPC has been moved before the Court of Sessions having Jurisdiction and the status/result of that application and must be substantiated with relevant documents.

[Notice dt. 01-07-2019]

Allahabad High Court

Further Reading:

Breaking | Provision of “Anticipatory Bail” once again incorporated in the State of Uttar Pradesh

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., while disposing of a writ petition related to Section 498-A IPC, modified the directions concerning registration of FIR, arrest and bail under the said section as given in a recent judgment in Rajesh Sharma v. State of U.P.2017 SCC OnLine SC 821.

The writ petition, under Article 32 of the Constitution, was filed seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels. That apart, prayer was made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC. It is worthy to note here that during the pendency of the instant petition, the judgment was pronounced in Rajesh Sharma. During the course of proceedings, learned Amicus Curiae submitted that the said decision requires reconsideration.

The Supreme Court, in order to adjudicate on the petition, perused scheme and object of Section 498-A as well as guidelines laid down in D.K. Basu v. State of W.B., (1997) 1 SCC 416 and also Lalita Kumari v. State of U.P, (2014) 2 SCC 1 wherein the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. On perusal of directions in Rajesh Sharma, the Court found that it directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, in Court’s view, were beyond the Code and the same did not really flow from any provision of the Code. It was stated that there could be no denial that there has to be just, fair and reasonable working of a provision. The legislature, in its wisdom, has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. In the aforesaid analysis, the Court declared the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, it is appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar v. State of U.P., (1994) 4 SCC 260; D.K. Basu; Lalita Kumari and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. It was thought appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by the Court relating to arrest. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole was not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the directions given by the Court. Direction No. 19(iii) was modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 CrPC and the High Court, keeping in view the law laid down in Gian Singh v. State of Punjab, (2012) 10 SCC 303 , shall dispose of the same. The petition was accordingly disposed of. [Social Action Forum for Manav Adhikar v. Union of India,2018 SCC OnLine SC 1501, decided on 14-09-2018]

Law School NewsOthers

The gestation period in legal education is longer than any other professional programs in India. The reason being the vastness of the subject to be studied theoretically and equal amount of time required for acquiring the practical skills required post qualification. Though Moot Courts, Mock Trials and Client Counseling activities have played a major role in imparting the theoretical content in practice, however, the simulation of these quasi academic activities do not completely evolve the skills required for practice.

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Case BriefsHigh Courts

Madhya Pradesh High Court: While disposing off the present appeal wherein the appellant was charged under Section 3(2)(va) and 3(1)(d) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Bench of J.P. Gupta, J., reiterated the recent Supreme Court decision in Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 323, holding that a police officer, who intends to arrest a person, who is not a government servant and is accused of the offence punishable under the 1989 Act, such arrest should be made with prior approval of the S.S.P concerned, only after recording the reasons of arrest in writing.

As per the facts, the appellant was the owner of the bus on which the complainant was working as a Driver. It was alleged that when the complainant demanded arrears of salary, he was abused publicly by referring to his caste. The Complainant belongs to the Scheduled Tribe community. The appellant’s counsel Harshwardhan Singh Rajput refuted the allegations and prayed before the Court to issue directions in sync with the guidelines laid down in the aforementioned Supreme Court judgment.

On perusal of the facts, the Court observed that there is no evidence to show that the FIR against the appellant was filed with malafide intentions, therefore the appellant is not entitled to get anticipatory bail. The Court however also noted that the nature of the offence is not very severe and prima facie, the appellant’s arrest is not warranted for the purpose of investigation and his presence may be secured during trial by directing him to appear before the Magistrate/Court concerned in case of filing of the charge-sheet. Furthermore the Court stated that an accused, who is not entitled to get the benefit of anticipatory bail, cannot be denied the protection available under the law with regard to unjustified and unwarranted arrest, as before arresting an accused, it is the duty of the police officer to examine and record the reasons of arrest in writing subject to scrutiny of the Magistrate/Court. [Ajeet Jain v. State of Madhya Pradesh,2018 SCC OnLine MP 327, decided on 04-04-2018]