Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, Surya Kant* and Anirudhha Bose, JJ  has refused to interfere with the bail granted by Kerala High Court to KA Najeeb arrested under the Unlawful Activities (Prevention) Act, 1967 but has imposed the condition that Najeeb shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. He shall also refrain from participating in any activity which might enrage communal sentiments.

“In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith.”

Why was Najeeb arrested?

One Professor TJ Joseph while framing the Malayalam question paper for the second semester B.Com. examination at the Newman College, Thodupuzha, had included a question which was considered objectionable against a particular religion by certain sections of society.

On 04.07.2010, Najeeb along with some other members of Popular Front of India (PFI) had chopped¬off the professor’s right palm with choppers, knives, and a small axe. Country-made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim. As per records, over the course of investigation it emerged that the attack was part of a larger conspiracy involving meticulous pre-planning, numerous failed attempts and use of dangerous weapons.

Najeeb was arrested on 10.04.2015 and a chargesheet was re-filed by the National Investigation Agency against him, pursuant to which he is now facing trial.

Analysis

When can bail be cancelled?

At the outset, the Court clarified that there is a vivid distinction between the parameters to be applied while considering a bail application, vis-à-vis those applicable while deciding a petition for its cancellation.

“Bail once granted by the trial Court, could   be   cancelled   by   the   same   Court   only   in   case   of   new circumstances/evidence, failing which, it would be necessary to approach the Higher Court exercising appellate jurisdiction.”

Why did the High Court grant bail?

The High Court in the instant case had not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43-D(5) of UAPA are alien to him. It instead had exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43-D (5) of UAPA.

“… gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail.[1]

Consideration by the Supreme Court

  • Najeeb has been in jail for much more than five years.
  • There are 276 witnesses left to be examined.
  • Charges have been framed only on 27.11.2020.
  • Two opportunities were given to the NIA who has shown no inclination to screen its endless list of witnesses.
  • Of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years’ rigorous imprisonment. Hence, it can be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark.

“Given that two-third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.”

Further, the presence of statutory restrictions like Section 43-D (5) of UAPA  per-se  does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.

“Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43¬D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

The Court also reiterated that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter.

“Owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.”

Further, the Court also noticed that Section 43­D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. 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 43­D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well­settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc.

Though the Court noted that the charges levelled against the respondent are grave and a serious threat to societal harmony, however, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail.  Hence, the Court upheld the decision of the High Court attempting to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of the Constitution have been well protected.

[Union of India v. KA Najeeb, 2021 SCC OnLine SC 50, decided on 01.02.2021]


*Justice Surya Kant has penned this judgment 

[1] Shaheen Welfare Association v. Union of India, (1996) 2 SCC 616

Case BriefsSupreme Court

Supreme Court: The 2-judge bench of AM Khanwilkar and Sanjiv Khanna, JJ has refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation.

The Court, however, accepted the prayer for transfer of all pending FIRs in relation to and arising out of the telecast/episode dated 15th June 2020 to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered and also asked the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.

Background

On 15th June, 2020, Devgan had hosted a debate on his show ‘Aar Paar’ on News18 India on the Places of Worship (Special Provisions) Act, 1991 which, while excluding Ayodhya, prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947. Some Hindu priest organisations had challenged vires of this Act before the Supreme Court, and reportedly a Muslim organization had filed a petition opposing the challenge.

The petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”. Translated in English the words spoken would read – “Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed,” imputing that ‘the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.’

Devgan later tweeted an apology along with a clarification that he has faith in Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also gone on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship. Expressing regret, he said that the attributed words were uttered inadvertently and by mistake; in fact, he wanted to refer to Alauddin Khilji and not Gareeb Nawaz Khwaja Moinuddin Chishti.

Here’s what he tweeted:

Analysis

On refusal to quash the FIRs

Rejecting the contention that criminal proceedings arising from the impugned FIRs ought to be quashed as these FIRs were registered in places where no ‘cause of action’ arose, the Court held that Section 179 of the Criminal Code provides that an offence is triable at the place where an act is done or its consequence ensues.

“The debate-show hosted by the petitioner was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India and were affected by the utterances of the petitioner; thus, the consequence of the words of the petitioner ensued in different places, including the places of registration of the impugned FIRs.”

After going through the relevant portions of the transcript of the debate anchored by the petitioner, the Court noticed that it was apparent that Devgan was an equal co-participant, rather than a mere host. The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be evaluated before the court can form an opinion on whether an offence is made out. The evaluative judgment on these aspects would be based upon facts, which have to be inquired into and ascertained by police investigation. ‘Variable content’, ‘intent’ and the ‘harm/impact’ factors, as asserted on behalf of the informants and the State, are factually disputed by the petitioner. In fact, the petitioner relies upon his apology, which as per the respondents/informants is an indication or implied acceptance of his acts of commission.

The Court, hence, concluded that it would not be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects.

Directing that no coercive steps for arrest of the petitioner need be taken by the police during investigation, the Court said that

“In case and if charge-sheet is filed, the court would examine the question of grant of bail without being influenced by these directions as well as any findings of fact recorded in this judgment.”

On transferring and clubbing all FIRs with the first FIR registered at P.S. Dargah, Ajmer, Rajasthan

In Babubhai v. State of Gujarat, (2010) 12 SCC 254 the test to determine sameness of the FIRs has been elucidated as when the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction. If the answer to the question is affirmative, then the second FIR need not be proceeded with.

Further, in T.T. Antony v. State of Kerala, (2001) 6 SCC 181 it was held that the subsequent FIRs would be treated as statements under Section 162 CrPC.

Relying on this the Court directed that all the subsequent FIRs be transferred to PS Dargah, Ajmer and the statement of the complaint/informant forming the basis of the transferred FIRs would be considered as statement under Section 162 of the Criminal Code and be proceeded with.

Justifying it’s decision, the Court said,

“This would be fair and just to the other complainants at whose behest the other FIRs were caused to be registered, for they would be in a position to file a protest petition in case a closure/final report is filed by the police. Upon filing of such protest petition, the magistrate would be obliged to consider their contention(s), and may even reject the closure/final report and take cognizance of the offence and issue summons to the accused. Otherwise, such complainants would face difficulty in contesting the closure report before the Magistrate, despite and even if there is enough material to make out a case of commission of an offence.”

It was further explained that Section 186 CrPC relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of FIR but before charge-sheet is submitted to the Magistrate.

“In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused.”

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]


*Justice Sanjiv Khanna has penned this judgment

Also read: Freedom & rights cannot armour those who promote & incite violence| 15 notable excerpts on ‘hate speech’ from Supreme Court’s verdict in Amish Devgan case

Case BriefsSupreme Court

Supreme Court: In the matter relating to alleged sacrilege of the holy book, Shri Guru Granth Sahibji in different places in Punjab,the single judge bench of Hrishikesh Roy, J has refused to transfer the Trial of criminal cases pending before the Courts at Bhatinda, Moga and Faridkot districts to competent Court in Delhi or to any nearby State, out of Punjab.

The transfer was sought on the ground that the case has generated deep anguish and bitterness amongst a particular religious group, who form majority of the population in the State of Punjab and therefore the accused who are members of the Dera Sacha Sauda sect, are facing bias and prejudice and are unlikely to get a fair trial in the face of strong presumption of culpability.

The Court, however, said,

“From the available material, this Court cannot reasonably conclude that the situation in Punjab is not conducive for a fair trial for the petitioners. The few instances mentioned by the petitioners’ counsel may suggest heightened feelings amongst different groups but they do not in my estimation, call for transfer of proceedings to another State.”

The Court, however, directed the State to make all arrangement to ensure safe conduct of proceedings at the trial courts and also provide adequate security to the petitioners and their associates as might be warranted from the security perspective.


Incidents in support of the contention that the accused were unlikely to get a fair trial in Punjab


  • the murder of the accused Mohinder Pal Singh Bittoo on 22.06.2019 inside the Nabha Central jail, showed the threat to the lives of other co-accused in the hands of the radical elements in the State.
  • public appeals have been made to socially boycott the accused and also to those dealing with them, such as lawyers, doctors and taxi drivers and these developments would indicate the serious difficulties faced by the accused in conducting their defence.
  • a forced statement under Section 164 CrPC was obtained from the petitioner which suggests that in Punjab, an unbiased prosecution cannot be ensured.
  • mass gathering in the court premises where these cases are listed on the given dates, shows the threat to the life of the accused since adequate arrangement and security has not been provided by the State.

Why the Supreme Court refused to transfer the trial


Explaining when can a trial be transferred from one Court to another, the Court said that the Court must be fully satisfied about existence of such factors which would make it impossible to conduct a fair trial. General allegation of surcharged atmosphere is not however sufficient.

“The apprehension of not getting a fair and impartial trial cannot be founded on certain grievances or convenience of the accused but the reasons have to be more compelling than that. No universal Rules can however be laid down for deciding transfer petitions and each one has to be decided in the backdrop of that case alone.”

Further, powers under Section 406 CrPC must be exercised sparingly and only in deserving cases when fair and impartial trial uninfluenced by external factors, is not at all possible. If the Courts are able to function uninfluenced by public sentiment, shifting of trial would not be warranted.

The transfer of trial from one state to another would inevitably reflect on the credibility of the State’s judiciary. Except for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked.”

For coming to the conclusion that the present bunch of cases do not fall under such exceptional categories and hence, cannot be transferred, the Court kept in mind the following considerations:

  • The petitioners have not moved out and continue to reside in the usual place of residence in the State and doing their work/business in a routine manner.
  • No specific instance of prejudice was brought to the Court’s notice on account of social boycott call or appeal to the Medical professionals or taxi operators, to deny co-operation.
  • No complaint was lodged before the court or to the authorities about any threat or intimidation.
  • While there is a specific instance of one of the defence lawyer disassociating himself from the case on personal ground, the two regular lawyers Mr. K.S. Brar and Mr. R.K. Rana continue to defend the accused since January, 2019 without any break or difficulty. This would suggest that petitioners defence is not being compromised in Punjab and they are receiving adequate legal assistance.
  • The matter emanates from the State of Punjab and the accused, the witnesses and the prosecutors are all from the State. If the trial is shifted out, all of them will face difficulties.
  • The State’s pleading shows that those accused who have a threat implication have been provided personal security by the district police and laborate arrangements have been made on orders of the State’s DGP and on the trial date, additional force are deployed in the concerned Courts, to ensure safety of the petitioners and all other stakeholders.
  • As the sacrilege incidents occurred in 2015, with passage of time, the atmosphere is expected to have mellowed down considerably. It has been more than 2 years since the petitioners were arrayed as accused in the cases. During this long period, no complaint has been made by the petitioners of any threat to their security or to their associates.
  • The petitioners who reside in different districts in Punjab are doing their work or business in a routine manner, without any inhibition.
  • Insofar as the death of the accused Bittoo in Nabha jail, the projection of the State is that he was murdered by jail inmates undergoing life imprisonment in some other cases and for this incident FIR under Section 302, 34, 120B IPC is registered in PS Sadar, Nabha, chargesheet has been filed and trial has commenced. Hence, at this stage it cannot be said if this incident has any link with the other cases or it is a standalone event.
  • The trial it at the stage of final arguments. The other five cases are at the stage of evidence or charge stage. It will therefore not be fair to the prosecution, the State and the witnesses who are yet to testify, to shift the proceeding without compelling reasons as it will inevitably delay the trial. One must also remember that convenience of all parties should be looked at and not just the party which is seeking transfer.

[Jatinderveer Arora v. State of Punjab, 2020 SCC OnLine SC 952, decided on 25.11.2020]


For Petitioners: Senior Advocate Ranjit Kumar

For Respondent: Senior Advocate Harin P Raval

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ, allowed an appeal pertaining to an FIR filed against the petitioner’s in regard to a song named “Manikya Malaraya Poovi” been picturised in a manner that offends the sentiments of a particular community.

The present petition was filed by the actor, producer and director of the movie “Oru Adaar Love” in regard to a prayer being placed saying that no FIR should be entertained or any criminal complaint under Section 200 IPC for the picturization of the song “Manikya Malaraya Poovi”.

The contention as submitted before the Court by the petitioners was that the song is a traditional Muslim song of Kerala and they cannot be made liable for the same. The allegation in regard to the song was that it offends the sentiments of a particular community and that is the reason an FIR against it was filed under Section 295A. Further, it was submitted that the issue is not the song, it is the manner in which it has been picturized.

The bench while giving due consideration to the submissions of the parties along with the facts of the case, concluded its decision for the appeal by stating that on referring to Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, it is clear that the above-stated Section 295 A IPC would not get attracted in the present matter. Further, the Court stated that solely because of the ‘wink’ picturization in the song would not amount to attempting to insult the religion or religious beliefs of a class of citizens and certainly the petitioners had no calculated intention to do the same. Therefore, the appeal was allowed with direction of no further FIRs to be entertained for the stated matter. [Priya Prakash Varrier v. State of Telangana, 2018 SCC OnLine SC 1289, Order dated 31-08-2018]

Hot Off The PressNews

Supreme Court: The 3-judge Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ came to the rescue of actress Priya Prakash Varrier, who shot into limelight after her ‘wink’ video went viral, by staying criminal proceedings against her in some states on the grounds that a song from her Malayalam film “Oru Adaar Love” allegedly hurt religious sentiments of the Muslim community. The Bench also granted similar relief to the director of the movie .

Besides staying the existing criminal proceedings, the bench also restrained all state governments from registering any further FIRs against the actress and the director with regard to the promotional video.

The 18-year-old Priya Prakash Varrier had sought protection from an FIR lodged on complaints alleging that the lyrics of the song ‘Manikya Malaraya Poovi’ from the movie was “offensive” and had “violated the religious sentiment of a particular community.

The plea said the claims that it hurt religious sentiments of the Muslim community are

“without any basis and what is hard to fathom is that a song which has been in existence for the past 40 years, which was written, sung and cherished by the Muslim community in Kerala is now being treated as an insult to the Prophet and his wife…. It is submitted that a song, which …. has been cherished by more than one crore Muslim population of Kerala, cannot suddenly offend the religious sentiments of the Muslim community”

Source: PTI

Case BriefsSupreme Court

Supreme Court: Quashing the complaint filed against Mahendra Singh Dhoni for allegedly hurting the religious sentiments of people when an image of him being portrayed as Lord Vishnu was published in a magazine with a caption “God of Big Deals”, the Court said that Section 295A IPC does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens.

Explaining further, the 3-judge bench of Dipak Misra, A.M.Khanwilkar and M.M. Shantanagouda, JJ said that insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.

The Court also cautioned the Magistrates who have been conferred with the power of taking cognizance and issuing summons and said that they are required to carefully scrutinize whether the allegations made in the complaint proceeding meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and further whether the accused is really required to be summoned. [Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, 2017 SCC OnLine SC 450, decided on 20.04.2017]