Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J., dismissed the petition and approved the prayer for custodial interrogation.

The facts of the case are such that the daughter of the petitioner i.e. the victim left home for school and did not return. On him contacting school authorities he got to know that school was not open that day. He went to register a complaint at the police station under Section 363 Penal Code, 1860 i.e. IPC and investigation started. On investigation, it was found that her phone was being used on various locations and two numbers were contacted most frequently. The last location of the victim was Panipat after which the phone was switched off. The main fact that points to Nazim i.e the petitioner in the instant case being of significance is the fact that he spoke to Ibrahim who kept the victim with him as the petitioner was in Kerala. The victim was recovered and her statement was recorded after which a lot of additional facts and names came to the fore and thus Sections 366A, 370(4), 506 and 120B IPC were added. The Petitioner has approached this Court under Section 438 Criminal Procedure Code (i.e. Cr.P.C.), seeking anticipatory bail apprehending his arrest.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that there is no overt act on the part of the petitioner in leaving the house by the victim, rather victim had voluntarily left her house and when she reached Ambala, the petitioner had only helped her by providing shelter to her and victim was not sexually abused. It is also submitted that there is no past history of petitioner involving in the commission of the same nature or any other offence.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that petitioner is a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking. It was further submitted that accused are absconding and investigation is at the initial stage and non-cooperation of the accused persons, including petitioner, is hampering the investigation.

The Court observed that Police Officer/Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 CrPC. Arrest of an offender during investigation is duly prescribed in CrPC. Section 438 CrPC is an exception to general principle and at the time of exercising power under Section 438 CrPC, balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest accused amounts to interference in the investigation. It was also observed that nature, gravity and seriousness of offence, are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 CrPC.

The Court thus held “Considering entire facts and circumstances of the case and nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy, I find that prayer for custodial interrogation of the petitioner is justified and thus acceptable.” 

In view of the above, petition was dismissed.[Mohammad Nazim v. State of Himachal Pradesh, 2021 SCC OnLine HP 606, decided on 06-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has held that merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments. However, when the impugned FIR is nothing but an abuse of process of law and to harass the accused, the High Courts must quash the FIR by exercising the powers under Article 226 of the Constitution of India and 482 Cr.P.C., to secure the ends of justice.

As per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C.

Hence, the Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.

“As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.”

The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary

(i) to prevent an abuse of the process of any Court; or

(ii) otherwise to secure the ends of justice.

Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.

[Kapil Agarwal v. Sanjay Sharma, 2021 SCC OnLine SC 154, decided on 01.03.2021]


*Judgment by: Justice MR Shah

Appearances before the Court by:

For appellants: Senior Advocate K.V. Vishwanathan

For Respondent: Advocate M.C. Dhingra

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.

Background

On 27 August 2020, a Muslim woman lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019, alleging that in December 2019, her husband pronounced talaq three times at their house. Following this, he entered into a second marriage.

The Kerala High Court, on November 2, 2020, while declining to grant anticipatory bail observed:

“If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife when the matrimonial relationship with the de facto complainant is in existence.”

However, the order of the High Court contained no reason why the appellant, i.e. the mother-in-law of the complainant, was being denied anticipatory bail.

The first petitioner is the spouse of the complainant and second petitioner is the mother of the first petitioner. Supreme Court had, on December 3, 2020, refused to entertain the Special Leave Petition by the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

The Court was now called upon to decide whether the High Court was right in refusing to grant anticipatory bail to the appellant i.e. the mother-in-law of the complainant.

Analysis

Who is punishable for the offence of pronouncement of triple talaq?

The Muslim Women (Protection of Rights on Marriage) Bill 2019 was introduced in the Parliament to give effect to the ruling of this court in Shayara Bano v. Union of India, (2017) 9 SCC 1, and “to “liberate” Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men.”

The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment.

“Thus, on a preliminary analysis, it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man.”

Does Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC?

Under clause (c) of Section 7, Parliament has provided that no person who is accused of an offence punishable under the Act shall be released bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom the talaq is pronounced, is satisfied that there are reasonable grounds for granting bail.

The statutory text indicates that Section 7(c) does not impose an absolute bar to the grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced.

Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person.

“This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married Muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused.”

Further, the legislature has not expressly barred the application of Section 438 of CrPC. The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained certain other statutes which expressly exclude the provisions of Section 438 of the CrPC.

Hence, on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, it was held that there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman.

[Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, order dated 17.12.2020]


*Justice Dr. DY Chandrachud has penned this order. Read more about him here

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

For Second Respondent i.e. the complainant: Senior Advocate V. Chitambaresh, and advocate Harshad V. Hameed,

For State of Kerala: Advocate G. Prakash

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Gautam Chourdiya, JJ., observed that,

Application for anticipatory bail under Section 438 Criminal Procedure Code, 1973 should ordinarily be filed before the Sessions Court at the first instance. Such an application can be filed directly before the High Court when there exist exceptional, rare or unusual reasons.

Two bail applications under Section 438 of the Code of Criminal Procedure, 1973 were filed by the applicants before the High Court without availing the remedy before the Sessions Court.

Applicants counsel on 16-09-2020 placed reliance on the decision of this Court in Ratnesh Singh Chouhan v. State of Chhattisgarh, MCRCA No. 918 of 2019, decided 23-07-2019, to argue that the anticipatory bail applications can be filed directly before the High Court.

A plain reading of the provision of Section 438 CrPC necessitates an immediate conclusion that the jurisdiction conferred on the High Court and the Sessions Court for entertaining prayer for anticipatory bail is concurrent in nature.

Controversy as to whether the application would be maintainable before the High Court only after exhaustion of the remedy before the Sessions Court has been posed before the different High Courts on ‘n’ number of occasions.

It was observed that Allahabad High Court in two different cases rendered its opinions as follows:

Harendra Singh v. State of U.P., 2019 SCC OnLine All 4571: It was held that the bail application filed under Section 438 of the CrPC is not maintainable before the High Court without exhausting remedy before the Sessions Court.

Vinod Kumar v. State of U.P., 2019 SCC OnLine All 4821: In this decision, it was held that such application can be filed directly before the High Court with a rider that strong, cogent compelling reasons and special circumstances must necessarily be found to exist in justification of the High Court being approached first and without the avenue as available before the Sessions Court being exhausted.

Bombay High Court in its decision of Mohanlal Nandram Choudhari v. State of Maharahstra,2007 (4) MhLJ 9held that the choice of choosing the Court, whether Sessions Court or High Court for moving an application under Section 438 CrPC cannot be left to be decided by the accused.

Catena of Judgments follow the common thread that albeit Section 438 CrPC confers concurrent jurisdiction on the High Court and the Sessions Court, an application should ordinarily be filed before the Session Court at the first instance and not directly before the High Court.

Adding to the above it was observed that for filing an application directly before the High Court the applicant has to demonstrate and satisfy the High Court that there exists exceptional, rare or unusual reasons for the applicant to approach the High Court directly.

Bench on perusal of the merits of the bail applications found that there were no exceptional circumstances in the cases at hand which would entitle them to move the anticipatory bail applications directly before the High Court.

Since the Court held that the bail applications are not maintainable directly before the High Court, no interim protection could be continued however the Sessions Court was given a direction to decide the anticipatory bail applications at the earliest as and when the applicants move before the Sessions Court. [Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]

Case BriefsHigh Courts

Kerala High Court: V.G. Arun J., while dismissing the present appeal clarified on the applicability of Section 438 Criminal Procedure Code, 1973 in an offence under SC/ST (POA) Act.

 Brief Facts

Appellants are the accused of offences punishable under Sections 341, 294(b) and 506(i) read with Section 34 of the Penal Code, 1860 and Sections 3(i)(s) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act; ‘SC/ST (PoA) Act’. The prosecution allegation is that on 24-07-2020, the appellants illegally restrained the de facto complainant; a lady belonging to Scheduled Caste community and abused her by calling her caste name. The anticipatory bail application filed before the Special Court was rejected, finding that from the FIS, FIR and other materials, a prima facie case was made out against the accused. The Special Judge further referred to the bar under Section 18A(2) of the SC/ST (PoA) Act to hold the application under Section 438 CrPC to be not maintainable. 

Contentions

Counsel for the appellants, C.K. Mohanan, contended that the allegations in the complaint are false and was made at the instigation of the de facto complainant’s employer, who is a political leader. It was further contended that even if the allegations are accepted in their entirety, no serious offence so as to deny anticipatory bail to the appellants is made out.

Special Public Prosecutor, Ambika Devi opposed the prayer for pre-arrest bail and submitted that a hapless lady was illegally restrained, abused, intimidated and insulted in public by calling her caste name and that such acts can, by no stretch of imagination, be termed as petty offences for the purpose of the SC/ST (POA) Act, 1989. The rigor of Section 18 and 18A(2) of the Act was highlighted with the aid of the recent decision of the Supreme Court in Prithvi Raj Chauhan v. Union of India, (2020) 4 SCC 727. It was further pointed out that the Special Judge, after perusing the relevant records have concluded that there exist a prima facie material to attract the alleged offences and that there is no reason for deviation of the present Court as such.

Decision

Concurring with the findings of the lower Court, the Court held, “Anticipatory bail can be granted for offences under the Act only in the event of no prima facie case being made out. The Supreme Court has alerted the courts to be cautious while exercising such power.”[Mohandas C. v. Sub Inspector of Police, 2020 SCC OnLine Ker 4783, decided on 28-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., considering the peculiar facts of the present case, allows anticipatory bail to a proclaimed offender, imposing several conditions.

 Brief Facts

On the allegations made by a girl, aged 15 years, against the petitioner of having coitus with her at the end of May 2013, by entering her home and also committing rape on her in the forest on 30-06-2013, when she was returning from school, the police registered FIR dated 19-07-2013, under Sections 376, 506 of the Penal Code, 1860, and Section 4 of Protection of Children from Sexual Offences Act, 2012, disclosing cognizable and non-bailable offences.

The police conducted the investigation, took the victim for her medical examination, got her statement recorded under S. 164 CrPC, but failed to nab the accused. Subsequently, the police filed a charge sheet without arresting the accused. After taking cognizance of the offence, the Court issued Non-bailable Warrants (NBW) and upon its non-execution, allowed the application of the prosecution and proceeded against the accused under Section 82 CrPC, declaring the petitioner as a proclaimed offender. It is to be noted that the contents of the bail petition and the status report do not reveal any criminal history.

Counsel for the petitioner

Abhilasha Kaundal, Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Further, the conduct of the accused applicant must be taken into account as much as, being declared a proclaimed offender, the petitioner voluntarily approached this Court by filing a petition for anticipatory bail. Accused explains that he and the victim were in love, and to make out an exceptional case, further states that on noticing that the girl had an affair with one Jyoti Prakash, he became melancholic and left for a distant place, far away from her. Accused further contends that due to the Lockdown of the COVID-19 pandemic, he was forced to return home and got information that an FIR was lodged against him, and that he is a proclaimed offender.

Counsel for the respondent

While opposing the bail, Nand Lal Thakur, Additional Advocate General contended that an absconder whom the Court has declared as a proclaimed offender has no legal rights to file an application under Section 438 CrPC.

Opinion of the Amicus

Ashok Tyagi, Amicus Curiae carved out a distinction in the pronouncements of Supreme Court and states that this Court has the jurisdiction to grant anticipatory bail, in peculiar facts, even to a proclaimed offender.

 Observations

The Court, in addition to its decision, cited the following cases;

  • Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, on the position of anticipatory bail against a proclaimed offender; “Para 10. (…)Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.”
  • State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, reiterated the rationale of the aforementioned case.
  • Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42, A three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires a change in fact or situation. 
  • Dataram Singh v. State of U.P., (2018) 3 SCC 22, “…grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions.”
  • Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, A Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions on the grant of bail.

Decision

In the light of the precedent cited and the facts of the case, the Court allowed the bail application remarking, “Pre-trial incarceration needs justification depending upon the offense’s heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.” Moreover, the Court enumerated a list of conditions that the applicant must abide by, during the course of bail.[Mahender Kumar v. State of Himachal Pradesh, 2020 SCC OnLine HP 2119, decided on 26-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. granted anticipatory bail to the petitioners and observed that the Court is under constitutional obligation to safeguard the interests of the victim, the accused, the society and the State while granting anticipatory bail.

The factual matrix of the present case is as follows:

The complainant Angesh Vimal, ASTEO NPB, Baddi, on receiving secret information about a  truck transporting illicit liquor stopped the truck in Baddi area which was bound from Panchukala to Mandi and nabbed the driver Mohinder Singh, conducted inquiries and it was revealed that the truck contained eggs but on further search, huge quantity of liquor of brand Una No. 1 was recovered. The Complainant then informed Suresh Thakur, ACSTENPB, Baddi and the police who reached at the spot within few minutes who on seizure and unloading recovered 835 boxes of illicit liquor without any permit. He revealed that contractor Kamal Kishore who is the owner of the liquor had got these boxes loaded at Panchkula and was escorting this truck in his XUV vehicle. Kamal Kishore was investigated and arrested and the truck was found to be of Manoj Kumar who was in the business of illicit trafficking of liquor and has vends in Ghumarwin. He further revealed that he has purchased liquor from Naushad Alam, and his associate from Delhi, Kulwinder was arrested who revealed that Naushad Alam works in a liquor factory near Kala Amb. Later, police on bringing Kulwinder from Delhi to Baddi came to know that Naushad Alam works in Himachal Spirit Company as Manager.

The petitioner Mohammad Junaid was apprehending arrest and hence the instant petition under Section 438 CrPC.

The present case is represented by counsel Javed Khan for the petitioners and Rita Goswami and Nand Lal Thakur with Yudhbir Singh Thakur for the respondents.

The Court relied on the Judgments Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 and held that custodial investigation of the petitioner/accused is not going to serve any purpose. Few factors and parameters can be taken into consideration while dealing with the anticipatory bail and no inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. The question of whether to grant bail or not depends on its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”

In view of the above facts, arguments and observations, the prayer was granted.[Mohammad Junaid v. State of H.P., 2020 SCC OnLine HP 296, decided on 28-02-2020]

Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J. allowed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

The applicant here is the accused in Crime No. 1158 of 2019, for offences punishable under Sections 418 and 420 of the Penal Code which was registered at Muhamma police station, and then the FIR was forwarded to SHO for investigation than to the Judicial First Class Magistrate.

The facts of the case are that the de facto complainant is the Managing Director of the Company-Brothers Coir Mills Pvt. Ltd., registered under the Companies Act, 2013, engaged in the business of manufacturing and exporting of coir products. The brother of the de facto complainant, John Jose, is one of the Director Board Member of the company. The accused worked as Senior Accountant of the company from 01-03-2017 to 31-08-2019.

The counsel for the respondent, B. Jayasurya, public prosecutor, contended that while the accused worked as a Senior Accountant of the company, he misappropriated the company funds in his own name. The total amount that he misappropriated was Rs 17,05,856. Hence, on this basis, the counsel contended that the accused should not be granted anticipatory bail. The counsel for the respondent hence was in the favour that there is a need for the custodial interrogation of the accused and recovery of the money.

The learned counsel for the petitioner, C.K. Sajeev, contended that for proper payments of the TDS amount due from the Company and to prevent hacking account from internet, the misappropriated amount was paid from the account opened in the name of the Director, namely, John Jose, who is the brother of the de facto complainant. The amount was transferred from the Current Account of the Company which was maintained with the South  Indian Bank Ltd. to the Current Account maintained and operated by the Board in the SME branch of the State Bank of India.

Section 148 of the Penal Code states that in case the accused cheats with the knowledge that he is likely to cause wrongful loss to a person whose interest is the transaction to which the cheating relates, he is bounded to be punished. The prosecution is bound to prove a legal contract.

Section 420 provides that in case where the accused cheats and dishonestly induces the person deceived to deliver any property to any person, to make or destroy or alter, whole or any part of a valuable security, which is signed or sealed and is capable of being converted into valuable security shall be punished as per Section 420.

The Court after perusing the documents came to the conclusion that there was some dispute between the Board of the Directors of the company and the petitioner, therefore, initiated the prosecution for no reason. The Court hence allowed the anticipatory bail with following directions:

  1. the petitioner will be released on bail in the event of arrest by executing a personal bond of Rs 50,000 along with two solvent sureties each for the amount to the satisfaction of the arresting officer.
  2. the petitioner will have to appear before the Investigating Officer every Monda between 10 a.m. and 1 p.m. for a period of 3 months or till the charge sheet is filed, whichever earlier.
  3. the petitioner should not in any manner intimidate or influence the prosecution witnesses
  4. in case of violation, it is open to the Court having jurisdiction over the case to cancel his bail without any further orders from the Court.[Balaji A.S. v State of Kerala, 2019 SCC OnLine Ker 6057, decided on 27-12-2019]
Case BriefsHigh Courts

Kerala High Court: B. Sudheendra Kumar, J. dismissed the anticipatory bail application of a person who was charged with offences of breach of trust, cheating and dishonestly inducing delivery of property and criminal conspiracy under the Penal Code, 1860 and also for computer-related offences under the Information Technology Act, 2000.

The petitioner herein was accused 4 according to the registered crime. There were 5 accused out of which the 1st to 3rd accused were candidates for the post of Civil Police officer and the petitioner along with accused 5 was charged for supplying them with answers in the written examination conducted by the Kerala Public Service Commission with their respective mobile numbers. A preliminary enquiry was conducted and thereafter the crime was registered.

Counsel for the petitioner Latheesh Sebastian contended that the prosecution could not find any evidence as to how the petitioner got the question papers and answers and hence, pleaded his innocence. He also contended that the custodial investigation of the petitioner unnecessary and thus filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

V. Sreeja, the learned public prosecutor opposed the application and contended that they could find the messages that were sent from the petitioner’s mobile to the accused’s 1 and 3. However, they could not find as to who supplied the question papers and the custodial investigation of the petitioner was necessary in order to find this.

High Court after observing the materials opined that the answers were supplied to the accused’s 1 and 3 from the mobile phones of the petitioner. Accused 5 who supplied the question papers were known only to the petitioner and custodial investigation was necessary to find this information. Thus, the Court further dismissed the application for anticipatory bail and directed the petitioner to surrender himself before the investigation officer for subsequent investigation.[Safeer. D v. State of Kerala, 2019 SCC OnLine Ker 2796, decided on 30-08-2019]

Case BriefsHigh Courts

Bombay High Court: S.S Shinde, J. dismissed a criminal application filed against the order of a Judicial Magistrate thereby issuing process against the applicant for an offence punishable under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881.

The complainant-respondent had alleged that he advanced a loan of Rs 30 lakhs to the applicant, for the repayment of which, the applicant had issued a cheque in his name. However, on presenting the cheque for encashment, it was returned unpaid due to insufficiency of funds. Pursuant thereto, after complying with codal formalities, the complainant filed a complaint against the applicant for the commission of an offence under Section 138 of NI Act. Consequently, the Magistrate issued a process. Aggrieved thereby, the applicant filed the present application under Section 438 CrPC.

The applicant, represented by S.V. Marwadi, Advocate, inter alia, contended that the complaint was filed after the statutory period of limitation has ended. Per contra, S.V. Marwadi, Advocate representing the complainant contended otherwise and supported the impugned order.

The High Court was of the view that to find out whether the complaint filed by the complainant was within the period of limitation or otherwise, appreciation of documents was necessary. Prima Facie, it appeared that the complaint was within limitation, and therefore it could not be concluded at the threshold that the complaint was not maintainable. Similarly, it was held that the other contentions made on behalf of the applicant also required to be appreciated at the trial. In such view of the matter, the Court held that the present application was liable to be dismissed. Orders were made accordingly. [Amit Digvijay Singh v. Gokuldas Jagannath Bhutada, 2019 SCC OnLine Bom 1350, decided on 19-07-2019]

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 BriefsHigh Courts

Patna High Court: A Full Bench of Hemant Kumar Srivastava, Aditya Kumar Trivedi and Ashutosh Kumar, JJ. refrained from adjudicating on the validity of Section 76(2) of the Bihar Prohibition and Excise Act, 2016.

In the present case, the question for consideration was whether the provisions of Section 438 Code of Criminal Procedure, 1973 continue to apply in spite of the bar created under Section 76(2) of the Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438 CrPC for anticipatory bail was maintainable. A Single Judge Bench had ruled that anticipatory bail applications cannot be entertained for offences under the purview of the Act. However, another Single Judge Bench in Manish Kumar v. State of Bihar,  Cr. Misc. No. 21578 of 2017, held that the previous judgment was per incuriam as Section 76(2) of the Act of 2016 ran repugnant to Section 438 CrPC and, therefore, violative of Article 254 of Constitution of India and referred the matter to Division Bench. The Division Bench was of the view that the matter was already under consideration in the Supreme Court and to decide on the matter would amount to judicial overreach. The case was then referred to this Full Bench due to the conflict in judgments given by the prior Benches.

The Court opined that a Single Judge Bench could not overrule the judgment given by another Single Judge Bench, and the Judge in Manish Kumar case was not right in declaring the judgment given by another Single Judge Bench per incuriam.

The Full Bench was unanimous in the opinion that till the matter was still under consideration in the Apex Court which would include the justification of a State Legislature in providing a complete bar to the grant of anticipatory bail to accused persons of offences under the Act, anticipatory bail petitions shall not be maintainable; unless from the facts of the case, it would prima facie appear that none of the ingredients of the offences under the Act of 2016 are made out for attracting the bar of Section 76 (2) of the Act. For coming to the aforesaid conclusion as to whether the offence can be said to be made out of the facts of the case, no detailed enquiry was to be made.

The Full Bench, hence, approved the view of the Division Bench in Manish Kumar case that it was not right to decide the matter till the matter was still pending in the Supreme Court and refrained from adjudicating into the matter.[Ram Vinay Yadav v. State of Bihar, Criminal Appeal (SJ) No. 431 of 2019, decided on 17-05-2019]

Hot Off The PressNews

In a recent press release, State of Uttar Pradesh announced the re-insertion of the provision of “Anticipatory Bail” in the State which was removed at the time of “emergency”.

The Amendment was approved by the President on 01-06-2019 and has been brought into force with effect from 06-06-2019.

As per the Press Note, the provision of Anticipatory Bail was omitted by the Criminal Procedure Code (Uttar Pradesh Amendment) Act, 1976.

Several writ petitions were filed to re-introduce the same. A Committee was constituted under Principal Secretary, Home Department, Government of Uttar Pradesh and the Committee had forwarded its suggestion to re-introduce Section 438 CrPC.

Hence, the said Amendment was approved by the President on 01-06-2019 and has been brought into force with effect from 06-06-2019 through a gazette notification.


[Picture Credits: uphome.gov.in]

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]

Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. dismissed a bail application filed by an individual under Section 438 CrPC, for being involved in acts of vandalism during hartal called by a political party.

Facts of the case were that a political party had declared a hartal in Kerala. The uncle of de facto complainant opened his shop despite the call for hartal. Defacto complainant went to the shop in the morning. Petitioner along with other persons abused him and caused damage to the movables in the shop. When the defacto complainant intervened, petitioner hit him on the head injuring his right eye. A case was registered against petitioner for offences punishable under Sections 143, 147, 294(b), 308, 323, 324 and 427 read with Section 149 of the Penal Code, 1860. Apprehending arrest, petitioner approached this court seeking anticipatory bail.

The Court noted that the aforesaid criminal acts were done by the petitioner under the cover of hartal called by a political party. Petitioner and his group’s act was nothing but sheer vandalism, under the guise of hartal. Call for hartal by any political party only gives the right to the members of that political party to withdraw themselves from their work as a protest. They may also persuade their fellow workers to withdraw from their work. But that does not empower them to commit criminal acts, much less, any act intended to interfere in the exercise of the fundamental right of any person to move freely anywhere in India and to carry on his trade or business anywhere in India. Reliance was placed on Full Bench decision of this Court in George Kurian v. State of Kerala, 2004 SCC OnLine Ker 42 where it was held that nobody can be compelled to participate in hartal and general strike.

Further, the Court also relied on the decision of the Supreme Court in Kodungallur Film Society v. Union of India, (2018) 10 SCC 713 where it was held that any mob violence and crime by self-appointed keepers of public morality, terrorizing common man without legal sanction and causing loss of life and destruction of property, should be dealt with seriously. It was opined that bail applications filed by persons charged with such offence should be dealt with circumspection.

In view of the above, anticipatory bail was rejected.[Vinod. P v. State of Kerala, 2019 SCC OnLine Ker 1012, Order dated 20-02-2019]

Case BriefsHigh Courts

Bombay High Court: K.K. Sonawane, J., while reversing the judgment passed by Additional Sessions Judge, allowed pre-arrest bail applications of appellants filed under Section 438 CrPC.

The appellants were accused of assaulting the complainant and abusing him using filthy language while referring to his caste “Adiwasi”. An FIR was lodged and a criminal case was registered under Sections 324, 504, 506 read with Section 34 IPC and under Section 3 (1)(r)(s) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Apprehending arrest by Police, the appellants rushed to the court of Additional Sessions Judge for the relief of anticipatory bail under Section 438 CrPC. However, he rejected all the applications. This order was the subject matter of present appeals.

S.K. Chavan and R.J. Nirmal, Advocates representing the appellants submitted that they were students taking education in Agricultural College who had no concern with the alleged crime and were falsely implicated. Per contra, D.S. Jape, Assistant Public Prosecutor appearing for the State submitted that Section 18-A of SC/ST Act puts an embargo on the Court for exercising powers under Section 438 CrPC.

On perusing the FIR, the High Court was of the view that prima facie, ingredients of Section 3(1)(r)(s) did not match with factual score of the present case. Relying on its earlier decisions, the Court observed, “in spite of bar under Section 18 of the Act of 1989, for invocation of powers under Section 438 of the CrPC, it is still open to this Court to find out by looking to the FIR of the case itself is as to whether prima facie case is made out by the complainant against appellants.” Opining that incriminating circumstances to show that “intentional insult” or “intimidation with intent to humiliate” the complainant within public view on the part of appellants were lacking in this case, the High Court held it to be a fit case where anticipatory bail may be granted to them. Hence, the impugned order was quashed and the appeals were allowed. [Krishna v. State of Maharashtra, 2019 SCC OnLine Bom 341, decided on 27-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. declined to exercise jurisdiction under Section 482 CrPC to quash an FIR registered against the petitioner.

The petitioner was facing criminal prosecution under Section 135 of the Electricity Act, 2003. The petitioner who was represented by V.K. Sharma, Advocate sought quashing of FIR on the basis of payment of Rs 1,60,000 to the power distribution company. The prime contention was that the dispute being of civil liability, therefore the ruling of Supreme Court in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 would not apply.

The High Court reproduced the relevant portion of board principles governing the exercise of extraordinary power and jurisdiction of the Court under Section 482 CrPC as observed in Parbatbhai case. As far as the present case concerned, the Court observed that “Theft of electrical energy is menace which the society suffers at great cost to itself and to the State. It is a serious offence which affects the financial and economic well being of the State having implications which lie beyond the domain of a mere dispute between private disputants”. Opining that such offence cannot be termed to be private in nature, the Court held that exercising jurisdiction under Section 482, in this case, would be a misplaced sympathy. Consequently, the application was dismissed. [Mukesh Chand v. State (NCT of Delhi), 2018 SCC OnLine Del 13031, dated 10-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of P.N. Deshmukh and Swapna Joshi, JJ. partly allowed an application filed under Section 482 CrPC to quash and set aside FIR registered against the applications under Section 498-A read with Section 34 IPC.

Eleven applications, in this case, included the husband, father-in-law and other relatives of the husband of the non-applicant wife. She had alleged that she was harassed by the applicants in as much as she was abused by them. Specific allegations were levelled against the husband, father-in-law and two others that she was repeatedly asked by her husband to establish physical relations with the other three. The applicants contended that no offence was made out against them even if the allegations in FIR were accepted at face value.

On a bare perusal of FIR, the High Court noted that the wife had made serious allegations against her husband, father-in-law and two others. However, the FIR did not reveal any specific allegation against other relatives particularly her mother-in-law and sisters-in-law. Relying on the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Court held that continuation of proceedings against applicants except for the husband, father-in-law and two others would be an abuse of process of law. Therefore, the FIR in regard to such other relatives was directed to be quashed. [Chandrahas Jagatnarayan Choube v. State of Maharashtra,2018 SCC OnLine Bom 5574, decided on 30-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sureshwar Thakur, J. allowed a bail application owing to the vague and unclear FIR.

The petitioner has requested for the grant of anticipatory bail under Section 438 CrPC wherein he has been accused of offences punishable under Sections 376 and 506 IPC.

The prosecutrix has alleged forced sexual intercourse being subjected to her by the applicant. But what has to be taken into consideration was the date of the incident which was 2016 also she was unclear about the date and month of the act. Plus from the contents of the FIR, the whole narration of the incidence does not seem forced but rather vague and nebulous. The Court also considered the fact that she was married but didn’t disclose the matter to her husband which again acquires an aura of falsity.

Accordingly, due to the weak testimony of the prosecutrix along with the fact that the applicant showed the fullest cooperation in the investigation, the bail application stood allowed. [Madan Lal v. State of Himachal Pradesh,2018 SCC OnLine HP 1702, decided on 28-11-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. stayed the arrest of accused clergymen, while deferring the hearing of the special leave petition filed by Father Sony Varghese, Father of Malankara Church, who is one of the accused in the latest infamous Church sex scandal in Kerala.

The matter arises from the decision of the Kerala High Court which refused to grant anticipatory bail to the accused in a criminal case registered against them for sexually exploiting the survivor. The accused were booked under Sections 376, 354, 354A, 506(1) of IPC. The applicants before the High Court were clergymen of the Malankara Orthodox Syrian Church. The survivor was a married woman who made allegations of gross sexual impropriety against the applicants. It was alleged that Accused 1 sexually abused her since 1999 on the false pretext of marrying her, which continued even after marriage of the accused as well as the survivor. Further, allegations against Accused 2, Vicar of a nearby Church, were that he too sexually exploited the survivor on more than one occasion. The survivor had confessed about her relationship with Accused 1 before the Church and Accused 2 threatened her to oblige with sexual favours or he will tell everything to her husband. It was alleged that she was made comply with the exploitative sexual demands by the accused under threat.

The accused had filed an application under Section 438 CrPC before the High Court which was refused holding that considering the gravity of allegations and possibility of the accused influencing the witness and investigation, it was not a fit case to grant anticipatory bail. The High Court went on to observe that the accused acted like predators.

The Hon’ble Bench of the Supreme Court has directed the matter to be listed on 19-7-2018. [Sony Varghese v. State of Kerala, SLP (Crl.) No. 5686 of 2018, dated 17-07-2018]