Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma , J., allowed the bail petition stating that object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial.

The present petition has been filed under Section 439 Criminal Procedure Code, 1973 for grant of regular bail. The facts of the case are that victim prosecutrix, aged 26 years old, were working in a company since 2017, and in 2018 met the bail petitioner and became good friends. In year 2019, she attended bail petitioners marriage where he expressed that he is not happy with the marriage and wants to marry her, attempts of which she rejected. The bail petitioner allegedly sexually assaulted her twice and impregnated after which when she asked him to get married he refused and advised her to terminate the pregnancy. Hence she filed an FIR against him wherein investigation is complete and the trial is pending.

Arvind Sharma, Additional Advocate General with Kunal Thakur, Deputy Advocate General argued that the crime is a grave one  and the bail petitioner does not deserve any leniency. They further argued that the medical report submitted clearly proves that the bail petitioner is the biological father of the foetus in the womb and hence is charged with Section 376 of Penal Code, 1860

Advocate Rakesh Kumar Doga is representing the petitioner side.

The Court relied on the judgment titled Dataram Singh v. State of U.P., (2018) 3 SCC 22 and Prasanta Kumar Sarkar v. Ashis Chaterjee, (2010) 14 SCC 496 and 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 and that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception.

In view of the above mentioned arguments and observations the bail was granted. [Ritesh v. State of Himachal Pradesh, 2020 SCC OnLine HP 585 , decided on 27-05-2020]

Case BriefsCOVID 19High Courts

Gauhati High Court: Ajai Lamba, CJ. while considering a bail application of Akhil Gogoi who was in custody on the allegations of conspiring and committing acts with intent to facilitate design to wage war against the State by means of using passage of Citizenship Amendment bill in Parliament as a cause, held that,

“no actionable evidence or material has been pointed out which would conclude that applicant and other accused waged war against the State.

Present proceedings took place in a virtual court in view of the COVID-19 outbreak.

Akhil Gogoi had filed the present application for bail under Section 439 CrPC, 1973 under Section 120(B)/122/123/143/147/148/149/150/152/ 153/326/333/353 of Penal Code, 1860.

It has been alleged that accused persons used Citizenship Amendment Bill as an opportunity to abet, incite unlawful assemblies with deadly weapons at various placed and abetted extreme violence.

They all connived, engaged and promoted the engagement of persons to become members of unlawful assembly at various placed in Assam. It was a full-fledged conspiracy secretly hatched by the accused along with some other unknown persons.

Adding to the above allegations, it has been alleged that in pursuance to unlawful common abject to assault and voluntarily cause grievous hurt to public servants by deadly weapons and inflammable substances likely to cause death, conspiracy was hatched.

Accused himself admitted that he took part in the protest rallies. It has been brought out that by taking part in these rallies he instigated common citizens, which is an act of criminal design to wage war against the State.

People were provoked which created enmity between various communities on the ground of religion, race, residence, etc., which is prejudicial to maintenance of harmony — waging war against the State.

High Court

Court noted that attention of the Court towards any actionable evidence or material that would indicate waging of war against the State has not be drawn.

Adding to the above, bench asked the question as to under what circumstance Investigating Agency concluded that such protest against the Bill would constitute waging war against the State?

To above position, Court stated that nothing has been pointed with regard to such protests to conclude as an attempt by the applicant and other accused to wage war against the State.

Bench held that such actions and incidents had taken place virtually all over the country and in view of that further custody of applicant shall not serve any purpose in law or any purpose of investigation.

Thus, applicant be released on bail to the satisfaction of Chief Judicial Magistrate and in case at any point during investigation or trial intimidates or influences or approaches any witness of the incidents, prosecution would be at liberty to seek cancellation of bail. [Akhil Gogoi v. State of Assam,  2020 SCC OnLine Gau 1092 , decided on 26-03-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. granted regular bail to the petitioner who is facing charges levelled against him under Sections 323, 324, 325, 341, 201 & 307 read with Section 34 of the Penal Code, 1860.

The present petitioner is represented by counsel Sanjeev Bhushan and Narinder Sharma. While counsel Narender Guleria, Bhupinder Thakur represented the respondents.

The victim Sativan Yadla was the Manager of the hotel where the accused was working. A few days before the date of occurrence, i.e., 28-11-2019, the victim had terminated the services of the accused. On this, the accused was annoyed and assaulted him, which led to the registration of FIR dated 28-11-2019.

Due to the young age of the accused, i.e., 22 years of age and it being his first offence, the Court deemed fit to grant bail on grounds such as the investigation is almost at the final stages of completion, the petitioner/accused is in judicial custody since 29-11-2019, has no criminal history and is a permanent resident of the address mentioned in the memo of the parties.

The Court further asked petitioner/accused to furnish a bail bond in the sum of Rs 10,000 with 2 sureties and other details as regards to his identity deeming other conditions as accepted for ascertaining his identity and securing his presence, as and when demanded by the authorities concerned for an efficient investigation and a fair trial.

In view of the above, the petition is allowed and bail granted. [Parteek v. State of H.P., 2020 SCC OnLine HP 245, decided on 24-02-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., allowed a bail petition of an accused who was under arrest due to an FIR registered under Sections 452 and 376 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’).

The FIR stated that the mother of the victim mentioned that she stayed in her matrimonial home with two of her children, a son aged 13 years and a daughter aged 14 years and her daughter was deaf from childhood and couldn’t even walk on her own. On 8-10-2019 at 7:30 p.m., she was going to attend the wedding in the village when she noticed the accused petitioner standing near the door of her house, on which she asked him the purpose to which he left the place. Later, she locked the house after placing her daughter inside and left to attend the wedding. When she returned at around 10.30 p.m. she found the locks to be broken and the blanket on her daughter removed along with bloodstains on her salwar. She suspected the accused petitioner and requested a medical examination after which he was arrested on filing the FIR. The doctor who had conducted the medical examination had said that there was no sign of any physical violence over the body and also mentioned that she was not menstruating and there was no external injury however the possibility of sexual intercourse could not be ruled out. The report from Forensic Science Laboratory did not deduct semen on clothes of the victim, vaginal swab and quilt cover.

On the other hand, the petitioner had specifically mentioned that the mother of the victim had been purchasing daily needs and ration items from him, on credit but despite requests, she did not pay and that he was not involved with the alleged offence. The petitioner had filed a petition under Section 439 Criminal Procedure Code, before Special Judge but it was dismissed thus the instant petition arose.

High Court while allowing the petition explained that the doctor did not find even a single trace of sexual assault nor the Laboratory deducted any semen from the vaginal swab and the mother’s allegation is also based on mere suspicion thus the petitioner is entitled to receive bail. [Bhup Singh v. State of H.P., 2020 SCC OnLine HP 147, decided on 24-01-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Suvra Ghosh, JJ., while denouncing the conduct of lawyers who had called a strike, directed and that prompt steps shall be taken against the offenders obstructing Judges, police personnel or public servants from discharging their dues.

The Court was considering an application for bail under Section 439 CrPC. The Court was informed that due to lawyer’s strike, police personnel were unable to enter the Court premises and produce the original case diary.

The High Court, in its order, cited observations of the Supreme Court in:

(i) Harish Uppal v. Union of India, (2003) 2 SCC 45, wherein the Constitution Bench has held that lawyers have no right to go on a strike or call for bandh or even a token strike. Only in rarest of rare cases where the dignity, integrity and independence of the Bar and/or the bench are at stake and a protest abstention from work not more than a day may be entertained and to do so, the President of the Bar must consult and seeks permission from the Chief Justice or the District Judge in the matter.

(ii) Hussain v. Union of India, (2017) 5 SCC 702, wherein the Court recognised that frequent strikes, abstention from work by lawyers or frequent suspension of court work after condolence references are one of the prime reasons for the delay in disposal of criminal cases.

(iii) Krishankant Tamrakar v. State of M.P., (2018) 17 SCC 27, wherein it was reiterated that every resolution to strike and abstain from work is per se contempt and necessary mechanism to enforce the mandate of the Court needs to be put in place till proper legislation to remedy the situation is enacted.

In the instant case, noted the High Court, the striking lawyers not only brought the administration of justice to a standstill but also, in a flagrant manner, obstructed the police personnel from discharging their official duty.

The Court directed the Superintendent of Police, Paschim Medinipur, to enquire into the matter and take necessary steps so that police personnel, litigants, lawyers and all stakeholders in the administration of justice are permitted to enter the Court premises and discharge their duties. It was further ordered that any obstruction to Judges, police personnel or other public servants in that regard would amount to cognizable offence and prompt steps shall be taken against the offences.

The matter is now listed to be heard on 08-01-2020, on which date, the Superintendent of Police shall submit his report before the Court. [Aijul Gharami v. State of W.B., 2019 SCC OnLine Cal 5529, decided on 23-12-2019]

Legislation UpdatesNotifications

Section 439 of the Code of Criminal Procedure, 1973 stood amended by the Criminal Law (Amendment) Act, 2018 (No. 22 of 2018) w.e.f. 21-04-2018 vide which, amongst others, it has been mandated that the presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of
Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code and that the High Court or the Court of Session shall, before granting bail, give notice of such application to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

The relevant provisions of “The Criminal Law (Amendment) Act, 2018” in this respect are reproduced herein below:-

“23. In Section 439 of the Code of Criminal Procedure-

(a) In sub-section (1), after the first proviso, the following proviso shall be inserted, namely:-

“Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-Section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.”

(b) After sub-section (1), the following sub-section shall be inserted, namely:-

“(1-A) The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860).”

In order to ensure better and effective compliance of the above provisions, Hon’ble the Chief Justice has been pleased to direct as under:-

(a) Before granting bail to a person who is accused of an offence triable under sub-Section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code, the High Court or the Court of Session shall give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application; and

(b) The Courts shall ensure that the Investigating Officer has, in writing as per Annexure A, communicated to the informant or any person authorized by her that her presence is obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code. Annexure A shall be filed by the I.O. along with the Reply / Status Report to such bail application and the Courts shall make all endeavour to ensure the presence of the informant or any person authorized by her.

These directions shall come into force with immediate effect.

[Practice Direction issued dt. 24-09-2019]

Delhi High Court

Case BriefsHigh Courts

Madhya Pradesh High Court: S.A. Dharmadhikari, J. granted bail under Section 439 CrPC, where the applicant was charged for ‘Deliberate and malicious act intended to outrage religious feelings of any class by insulting its religion’ under Section 295-A Penal Code, 1860.

The applicant was arrested on the allegations that he uploaded filthy language on social media, specifically facebook in the name of God. It was argued by the counsel for the applicant, R.K. Dubey that such was a false and frivolous case registered against the applicant. Further, it was submitted that the applicant was very young, just about 22 years old and had been in custody for a long time. The counsel stated that the investigation was pending and the charge sheet was not filed yet. But the long period of detention in the custody may spoil the career of the applicant as the trial may take some time. The counsel assured the Court that there was no possibility that the applicant will abscond or will tamper any material evidence if he was released on bail.

On the contrary, the public prosecutor, Sanjeev Mishra, opposed the bail application that such was a serious offence and could have caused a ruckus in the society and had outraged the religious feeling of the public at large.

The Court revalued the arguments of both the parties and deemed it to be a fit case for bail. Bail was granted by the Court subject to conditions.[Fezal Khan v. State of M.P., 2019 SCC OnLine MP 1461, decided on 05-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. dealt with a bail application where the petitioner sought bail for the offence under Section 14 of the State Security Act and thereby granted the said bail to the externed petitioner.

The first bail application was filed under Section 439 CrPC by the petitioner who was externed by the District Magistrate under the State Security Act. The petitioner was found within the prohibited area of Dewas and was subsequently arrested. The learned counsel for the petitioner, Hitesh Sharma submitted that the offences had been tried by the court and the petitioner was ready to abide by the conditions.

The counsel for the State, Akshat Pahadia, submitted that there were several cases against the petitioner and therefore he was externed for a period of one year.

The Court observed that an investigation was over and the offences attracted the penalty of three years. It was further observed by the Court the fact that early conclusion of the trial was a bleak possibility and prolonged pre-trial detention being an anathema to the concept of liberty and the material placed on record did not disclose the possibility of the petitioner fleeing from justice, the Court was though inclined to extend benefit of bail to the petitioner but with certain stringent conditions in view of nature of offence. Hence, the bail was granted.[Jakir v. State of M.P., 2019 SCC OnLine MP 1286, decided on 26-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J. directed release of the applicant on bail with sureties in the instant application filed under Section 439 of CrPC. 

V.K. Saxena, counsel for the applicant submitted that it was the second application on behalf of the applicant, where it was requested to release him on bail, as the applicant was in the custody since 3 months. The contention narrated by the counsel was, that an FIR was lodged against the applicant for offence under Sections 27, 29, 50 of the Wildlife (Protection) Act, 1972, the charges were for the entry in a restricted area of Sanctuary and causing destruction. It was further stated by the counsel that the applicant was only the driver of the vehicle which was seized by the police officers and neither the owner nor his accomplices were arrested for the said offences. It was pleaded by the petitioner that due to his detention in the judicial custody, his family was facing financial distress;  he further submitted that any other stringent conditions may be imposed over him but his confinement was not justified on the part of his family. 

Learned counsel for the respondent-State opposed the prayer and prayed for dismissal of the application because the offence had been committed against the motherland.

The Court considered the tender age of the applicant and observed that he had no criminal antecedents and granted bail to the applicant with conditions and sureties. [Vivek v. State of M.P., 2019 SCC OnLine MP 1069, decided on 30-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Ajay Tewari, J., passed an order to release the petitioner on regular bail on the ground that no evidence was made against the petitioner except for the statement of the cohort.

The application was filed under Section 439 CrPC for regular bail in the case registered under Sections 21 and 29 of NDPS Act, 1985.

The facts of the case were that information was received by the police regarding the purchase of the 4 kilograms of heroine and links with Pakistani smugglers who had called for heavy quantity of opium and had kept the same beyond the barbed wires. After a few days of investigation, Kuldeep Singh who possessed consignment was arrested and on his statement about the present petitioner being cohort, petitioner was arrested. The bail application of the petitioner was rejected on the ground that investigation was still pending and police were yet to collect evidence about the petitioner. Hence, the present application to invoke the special power of the High Court to grant regular bail was made.

Amarjit Kaur Khurana, DAG, Punjab submitted that no recovery of the heroine was made from the petitioner and that no evidence had been gathered. It was also submitted that the petitioner was in the custody for nine months, for which a custody certificate was placed on record.

Considering the submission, the High Court granted the bail on the ground that the petitioner had already served nine months in the custody and the trial was not likely to be concluded in the near future.[Gurchait Singh v. State of Punjab, 2019 SCC OnLine P&H 564, decided on 16-05-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: A Bench of Prashant Kumar Mishra, Acting C.J. and Vimla Singh Kapoor, J. has held that “the grant of bail to a juvenile is required to be dealt with under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and not under Sections 437 or 439 CrPC.”

Faced with application filed under Section 439 by a juvenile for grant of bail, the Single Judge, while differing from the view taken by coordinate benches in Mohan v. State of Chhattisgarh, 2015 SCC OnLine Chh 126 and Subhash Kumar v. State of Chhattisgarh, (MCrC No. 5651 of 2014, dated 28-11-2014), referred the following question for a decision by the present bench of two Judges: “Whether in view of non-obstante clause contained in Section 12 of the JJ Act, 2015, provisions under Section 437 and 439 of CrPC are applicable for being invoked for grant of bail by a child in conflict with law as defined under the JJ Act, 2015?”

While the view in Mohan and Subhash Kumar was that despite the provisions contained in Section 12 of the JJ Act, the bail application under Section 439 CrPC is maintainable before the Sessions Court and the High Court, the correctness of the view was doubted by the Single Judge in the present case.

Discussing the relevant provisions of the JJ Act and CrPC, the High Court noted that by use of the term “otherwise” in Section 8(2) of JJ Act, the jurisdiction under Section 439 CrPC would not be attracted which is otherwise excluded by use of the term “notwithstanding anything contained in the CrPC or in any other law for the time being in force”, as occurring in Section 12(1) of the JJ Act.

Further, under the statutory scheme of the JJ Act, a comprehensive provision has been made as to how a child in conflict with law has to be dealt with when he is apprehended and not released on bail. The said provisions are contained under sub-sections (2), (3) and (4) of Section 12. The provisions pari materia to this are not available under Section 439 CrPC. In the absence of such provision either in case of denial of bail or even when the bail is allowed under Section 439 CrPC, but the conditions of bail are not satisfied, the juvenile would be deprived of his statutory right under Section 12(2), (3) & (4) of the JJ Act.

In sum, it was held: “Section 12 of the JJ Act having included ‘notwithstanding anything contained in the Code or in any other law for the time being in force’, the provisions as contained in the Code in respect of grant of bail under Sections 437 and 439 have to be excluded and shall not apply while considering the juvenile’s right to be enlarged on bail for which a specific provision has been made under Section 12.”

While answering the reference as above, the bail application was dismissed. [Tejram Nagrachi v. State of Chhattisgarh, 2019 SCC OnLine Chh 24, Order dated 5-4-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Mishra, J., dismissed an application filed under Section 439 CrPC for a successive bail to release the petitioner. The earlier bail petition was rejected considering the nature and gravity of accusations and stage of trial in a case involving tender fixing. Mr Asok Mohanty, Senior Counsel for the petitioner submitted that after rejection of bail, six witnesses had already been examined and none of them had implicated the accused-petitioner. It was further submitted that if the statements under Section 161 CrPC were seen, the non-disclosure of the complicity of accused-petitioner in the Court would be a pre-trial punishment. Also, another co-accused person had already been released on bail. Additional Standing Counsel, Mr S. Dash opposed the bail stating that certain witnesses were declared hostile and the threat perception to the witnesses could not be ruled out. Further, the present petitioner could not have been said to be in a similar footing as the co-accused person who was released on bail had no criminal antecedent.

The Court held that substantive evidence of some witnesses recorded in the court during trial cannot be the basis to maintain a successive bail petition when other evidence by prosecution is to be brought. Added to that, the present petitioner did not stand in a similar footing as the co-accused person who has already been released on bail. The Court, considering the gravity of allegations, accusations and threat perception which were still available to the witnesses, rejected the application. [Batu v. State Of Odisha, 2019 SCC OnLine Ori 124, Order dated 14-03-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ. while allowing an appeal, set aside the impugned order of the Gujarat High Court which clearly violated the settled principles of criminal law jurisprudence and statutory prescriptions.

The brief facts of the case were that, an FIR was lodged against Respondent 2 under Sections 376(2)(f) and 376(2)(i) IPC and Sections 4, 5(c)(f)(m), 6, 8, 9(c)(f)(m) and 10 of  the POCSO Act, by the appellant who was the grandmother of the victim. In the present case, the victim was a minor aged 7 years. Respondent 2 was apprehended and charge sheet was filed for the same following which the bail application filed by Respondent 2 was granted by the High Court.

The main issue as pointed out to the Court was that the High Court’s order was in clear violation of the settled principles of criminal law jurisprudence and statutory prescriptions.

The reasons pointed out for the above was that the High Court had directed accused as well as the appellant along with the parents of the victim to undergo scientific tests viz., lie detector, brain mapping, and Narco Analysis. Further, the learned Judge of the High Court had in its order revealed the identity of the “victim”.

The Supreme Court on noting the facts and circumstances of the present case along with highlighting the importance of Section 439 CrPC, 1973 as the guiding principle of adjudicating a bail application, stated that, the High Court in ordering the tests as mentioned above was in contraventions to the principles of criminal law jurisprudence but also violates statutory requirements. The Court highlighted the fact that the matter was converted into a mini-trial by the High Court due to mentioning of the tests.

Further, relying on the decision of State of Punjab v. Ramdev Singh, (2004) 1 SCC 421 in regard to Section 228-A IPC, the Apex Court talked about the ‘identity of the victim’. Sections 33(7) and 23 of the POCSO Act were also mentioned pertaining to the protection of the identity of the victim. Court disapproved the manner in which the High Court adjudicated the bail application and accordingly quashed the High Court order.[Sangitaben Shaileshbhai Datanta v. State of Gujarat,  2018 SCC OnLine SC 2300, dated 29-10-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Budihal R.B., J., decided a criminal petition filed under Section 439 of CrPC, wherein bail was denied to the petitioner-accused in light of the fact that evidence of complainant witnesses was yet to be recorded.

The petitioner was co-accused in a criminal case registered under Sections 143, 144, 147, 148, 120(B) and 302 read with Section 149 of IPC. The petitioner had approached the Court for bail on an earlier occasion, however, his prayer was not granted. Subsequently, other co-accused were released on bail. The petitioner, in the changed circumstances, filed the instant petition praying to be enlarged on bail on grounds of parity. Learned High Court Government Pleader submitted that the weapon used in the alleged crime was recovered at the instance of the petitioner and hence, his case was not to be considered in parity of the other accused.

The High Court perused the record as well as submissions made on behalf of the parties, and found that the Court, in its earlier order referred to above, considered the entire merit of the case and rejected the bail petition. However, liberty was given to the petitioner to file fresh bail petition after recording of evidence of complainant witnesses. It was an undisputed fact that the evidence of the said witnesses was yet to be recorded. Therefore, the Court was of the opinion that it was not a fit case to exercise judicial discretion in favor of the petitioner-accused. Accordingly, bail was denied and petition was dismissed. [Philips alias Puli v. State, Crl. Petition No. 8243 of 2017, order dated 25.01.2018]