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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]