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:]

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]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sandeep Sharma, J. allowed a petition filed under Section 438 CrPC holding that freedom of an individual cannot be curtailed for an indefinite period without there being a finding of guilt.

The petitioner was accused of having disproportionate assets for which an FIR was registered. The petitioner, who was  Managing Director of H.P. State Forest Development Corpn. Ltd. apprehended arrest in the case which was registered under Sections 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 read with Section 120-B IPC. He prayed for grant of anticipatory bail.

The High Court perused the record and noted that the bail petitioner had already joined the investigation and was fully cooperating; the guilt of the petitioner, if any, was yet to be proved. The Court relied on Dataram v. State of U.P.,(2018) 3 SCC 22 wherein it was held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. The Court reiterated that object of bail is to secure the attendance of the accused in the trial, an object of bail is neither punitive not preventive. Considering the facts noted above, the Court found it a fit case to exercise jurisdiction in favour of the petitioner. Accordingly, the petition was allowed and the petitioner was enlarged on anticipatory bail. [Chandra Shekhar Singh v. State of H.P.,  2018 SCC OnLine HP 857, dated 06-07-2018]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal petition filed under Section 438 of CrPC, a Single Judge Bench of Rathnakala, J. granted bail to the petitioner in view of the affidavit filed by the victim/complainant in which she stated that the petitioner has agreed to marry her.

The petitioner and his brother were arraigned as co-accused in the FIR in a criminal case for the offences punishable under Sections 376, 504, 506 read with Section 34 of IPC. The allegation was that the 1st accused persuaded the victim to consume alcohol and then in her intoxicated condition, forcibly had sexual intercourse with her and videographed the incident.

When the case was called, the complainant filed an affidavit which stated that considering her future she had come to certain terms with the accused and his family. The accused had agreed to marry her. Hence, she prayed that the accused be granted bail. Learned counsel for the petitioner identified that victim/complainant.

In view of the affidavit filed by the complainant, the Court held that there was no impediment to grant the bail to the petitioner and accordingly the petition was allowed and bail granted to the petitioner subject to the conditions imposed. The petitioner was directed not to threaten the complainant and her family. [Rahul Kumar v. State of Karnataka, 2017 SCC OnLine Kar 1809, decided on  August 16, 2017]

Case BriefsHigh Courts

Karnataka High Court: The High Court granted anticipatory bail to the Ex-Chief Minister of Karnataka, Sri H.D. Kumaraswamy (petitioner) in a criminal case registered for offences punishable under Sections 420, 465, 467, 468, 409, 201 read with Section 120 (B) of IPC, etc.

The petitioner was arrayed as the third respondent in the F.I.R. registered in connection to the above mentioned offences. The case related to the concocting of documents/permits as if issued by the Ministry of Environment and Forest, GOI to lift the iron ore mined between 1965 to 1985. The allegation against the petitioner was that he pressurized the second accused to issue permission to shift the said mineral, knowing fully well that no forest clearance certificate was taken by the first accused.

Learned counsel for the petitioner submitted that the same allegations were subject-matter of another criminal case in which he was already granted bail. While the Special Public Prosecutor submitted that during the relevant period, the petitioner was the Minister for Industries and Commerce under which the Department of Mines and Geology was functioning, thus he was directly involved in the subsequent offence.

The Court perused the submissions and the case diary and found that the alleged incident was ten years old; the financial transaction that took place was all available in the records, the subject matter of the present case was same as that of the case referred to above. The petitioner apprehended that if for any reason he is arrested, that will mar his further career. He also undertook to co-operate with the investigating officer.

In light of the above, the Court held that, there was no impediment to grant anticipatory bail to the petitioner. Accordingly, the petition was allowed and the petitioner was granted anticipatory bail subject to the conditions imposed. [Sri. H.D. Kumaraswamy v. State of Karnataka, 2017 SCC OnLine Kar 1806, dated August 10, 2017]

Case BriefsSupreme Court

Supreme Court: Dealing with a pivotal question as to whether the High Court while refusing to exercise inherent powers under Section 482 of the CrPC to interfere in an application for quashment of the investigation, can restrain the investigating agency not to arrest the accused persons during the course of investigation, the Court said that this kind of order is really inappropriate and unseemly and has no sanction in law.

Stating that such direction “amounts” to an order granting anticipatory bail under Section 438 CrPC, albeit without satisfaction of the conditions of the said provision, the bench of Dipak Misra and Amitava Roy, JJ said that the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed.

It was held that the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 CrPC, exercise judicial restraint. The Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation.  The Courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay. [State of Telangana v. Habib Abdullah Jeelani, 2017 SCC OnLine SC 23, decided on 06.01.2017]


Case BriefsHigh Courts

Bombay High Court: In a case pertaining to custodial death, where proclamations under Section 82 of CrPC, 1973 were issued by the investigating agency to the accused during the pendency of their applications seeking pre-arrest bail, the Bench of Sadhana S. Jadhav, J. held that the proclamation issued against the present applicants shall not be acted upon during the pendency of the hearing of these applications. The Court observed that in fact, when the applications under Section 438 of the Code of Criminal Procedure, 1973 are pending before any court of law, it cannot be said that the accused are absconding. It only means that the accused are evading arrest to take their applications under Section 438 CrPC to its logical end.

The Court observed that  “the deceased had died in the custody of the police. The guardians of law have committed a heinous offence which shocks the conscience of the society, which believes the police to be the guardian of their life and liberty.”

The counsel for the applicants submitted that the applicants had left the police chowki on completion of their duty hours after handing over the custody of the deceased to the A.P.I. They were unaware of the incident that happened subsequently. They assured to cooperate with the investigating agency to the best of their capacity. Initially, there were proclamations issued against present applicants and therefore, this Court had not granted ad-interim relief. However, after proper inquiry into all evidences, the Court opined that the applicants herein deserved ad-interim relief as they had undertaken to cooperate with the investigating agency to the best of their capacity. [Nitin Chandrrkant Kadam v.  State of Maharashtra, 2016 SCC OnLine Bom 9850, order dated 30.11.2016]