Case BriefsHigh Courts

   

Allahabad high Court: In a second anticipatory bail application for offences under Sections 363, 366, 376 of the Penal Code, 1860 (‘IPC’) and 3 or 4 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), Suresh Kumar Gupta, J. said that Section 439 Code of Criminal procedure, 1973 (‘CrPC’) relates to Constitutional right of the accused whereas Section 438 CrPC to his statutory right. Thus, it was held that the second and successive anticipatory bail application is not maintainable.

The issue in this case was whether second anticipatory bail application is maintainable or not in this matter?

The Court said that there is no substantial difference between anticipatory bail under Section 438 CrPC and regular bail under Section 439 CrPC, as regards the appreciation of the case as to whether bail is to be granted. The only distinction is that under Section 438, the person who approaches the Court apprehends that he may be arrested without any basis whereas under Section 439, such person approaches the Court after his arrest

The Court further said that, evidently the power to grant anticipatory bail does not flow from Article 21 of the Constitution of India, but it has been conferred by the Statute enacted by the Parliament, whereas provisions contained in Section 439 flow from Article 21 of the Constitution. Thus, if bail application under Section 439 of the accused is dismissed once, he can move second and successive bail application on the ground of substantial change in factual situation between the earlier bail application and the subsequent one, but filing of second and successive bail applications based on new arguments and new twists on the same facts cannot be encouraged.

The Court also stated that speedy trial is a Constitutional right of the accused provided to him by Article 21 of the Constitution, thus, if the first application of the accused who is in custody is dismissed on merits and the trial is delayed, the accused has a right to make second bail application on the ground of delayed trial. The provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused.

Thus, the Court held that the second and successive anticipatory bail application is not maintainable, as every aspect has been dealt with by the coordinate bench of this Court in the first anticipatory bail application. Further, the applicant has already challenged the summoning order to face trial under Section 319 CrPC by means of application under Section 482 CrPC which was disposed of by this Court with a direction to the applicant to seek remedy of regular bail.

Thus, it was held that this is not a fit case for anticipatory bail and is hereby rejected. However, it is provided that if the applicant appears before the Trial court and applies for bail, then his bail application shall be considered and decided as per the law propounded by the Supreme Court.

[Raj Bahadur Singh v. State of UP, 2022 SCC OnLine All 759, decided on 15-11-2022]


Advocates who appeared in this case :

Counsel for Applicant:- Advocate Rajeev Giri,Raj Kumar Singh;

Advocate Sheshadri Trivedi;

Counsel for Opposite Party:- Government Advocate.


*Apoorva Goel, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: In a bail application under Section 439 of the Code of Criminal Procedure (CrPC) filed by the applicant for the offences under Sections 363, 366, 376 of Penal Code, 1860 (‘IPC’), and Section 3 and 4 of the Protection of Children from Sexual offences (‘POCSO Act’), Dinesh Kumar Singh, J. while considering the stand of the prosecutrix, and her father, viewed that as the prosecutrix had already delivered a child from the applicant, who has been in jail since 10.04.2022, and, without expressing any opinion on the merit of the case, granted bail subject to certain conditions.

In this case the prosecutrix, 17 years old, was enticed away by the applicant and delivered a girl child. The Court noted that the applicant was ready and willing to marry the prosecutrix, and they eloped to perform the marriage as they were in love. Further the prosecutrix and her father have no objection if the applicant is enlarged on bail, if he performs marriage with the prosecutrix in accordance with the Hindu rites and rituals, get the marriage registered, and gives all rights to the prosecutrix and the child as his wife and daughter.

Thus, the Court granted the applicant bail, on the condition that soon after he comes out of jail on bail, he will perform the marriage within 15 days from the date of release with the prosecutrix and get the same registered before the appropriate officer within a period of one month from the date of performing the marriage. Further, he must give all rights to the prosecutrix and his child as wife and daughter.

[Monu v. State of UP, 2022 SCC OnLine All 701., decided on 10.10.2022]


Advocates who appeared in this case:

Counsel for Applicant:- Advocate Azmi Yousuf

Advocate Priyanka Yadav

Counsel for Opposite Party:- Government Advocate

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a bail application, after the single judge Bench of Karnataka High Court criticised the Anti-Corruption Bureau (ACB) and the Additional Director General of Police (ADGP) for their lack of enthusiasm, the 3-judge bench of NV Ramana, CJ and Krishna Murari and Hima Kohli, JJ has observed that the alleged involvement of the ADGP, and the enthusiasm (or lack thereof) of the ACB officers are irrelevant and beyond the ambit of bail proceedings.

In the case at hand, allegation have been made against the Deputy Commissioner that when the complainant met him, he instructed to meet his Personal Assistant and when the complainant met the Personal Assistant of the Deputy Commissioner, he demanded an amount of Rs.15 lakhs to pass an order in favour of the complainant by the Deputy Commissioner and the same was bargained for Rs.8 lakhs, Rs.5 lakhs and when the complainant agreed to pay a sum of Rs.3 lakhs, insisted him to pay an amount of Rs.5 lakhs and accordingly, the amount was accepted to pass an order in favour of the complainant. A person who is not an employee of the Deputy Commissioner’s office but works in the Appeal Section is said to have collected the amount as per the instructions of the Personal Assistant of the Deputy Commissioner.

Upon noticing that ACB has not taken any action against the Deputy Commissioner despite being provided with all, H.P. Sandesh, J had, in the impugned order of Karnataka High Court, observed that “the Additional Director General of Police (ADGP) is not working for the institution for which he has been appointed that too prevention of corruption for which the said institution is established”.

The High Court noticed that the ACB, only after the Court found the material, arraigned the Deputy Commissioner as accused and arrested him and also conducted the raid on the house of Deputy Commissioner. It directed CBI to place the report in respect of the investigation pertaining to ADGP in the cases pending against him on the next date of hearing.

Justice Sandesh went on to narrate an instance that happened on 01.07.2022 in Chief Justice’s Farewell Dinner. He wrote,

“A Hon’ble sitting Judge came and sat by the side of me and stated that he received a call from Delhi (not disclosed the name) and said that the person who called from Delhi, enquired about me and immediately I replied that I am not affiliated to any political party and the Hon’ble Judge did not stop the same there itself and further said that ADGP is from North India and he is powerful and also gave an instance of transfer of Senior Judge of this Court to some other State and told that for no mistake on his part, he was transferred and chances of one side feeding to them”

As shocking as these revelations were, the Supreme Court, however, observed that the impugned proceedings arose out of a bail application under Section 439 of the Cr.P.C.

“Rather than considering the bail application on its merits, the learned Judge has apparently focused on other elements which may not be relevant and are, in our prima facie view, beyond the scope of inquiry in respect of proceedings under Section 439 of the Cr.P.C.”

Considering that the valuable rights of the accused who seeks enlargement on bail under Section 439 Cr.P.C., should not be adversely affected, the Court stayed the proceedings against the ADGP for not being linked to the pleadings of the accused for bail.

The High Court will continue hear and dispose of the bail application of the said accused, expeditiously, without reference to the pendency of the Special Leave Petitions before the Supreme Court.

[Seemant Kumar Singh v. Mahesh PS, Diary No(s).20525/2022, order dated 18.07.2022]


Counsels

Tushar Mehta, SG, Nikhil Goel, AAG. Shubhranshu Padhi, AOR, Ashish Yadav, Adv, Vishal Banshal, Adv., Rajeshwari Shankar, Adv, Mukul Rohatgi, Sr.Adv., Amit Kumar, Sr.Adv., Avijit Mani Tripathi, AOR, Shaurya Sahya, Adv., Aditya Shanker Pandey, Adv,  S.Nagamuthu, Sr.Adv.,  H.S. Chandramouli, Sr.Adv, Anand Sanjay M.Nuli, Adv., M.P. Parthiban, Adv., Agam Sharma, Adv., Keerthana Nagaraj, Adv., M/S. Nuli & Nuli, AOR

Patiala House Courts, Delhi
Case BriefsHigh Courts

Patiala House Court, Delhi: Devender Kumar Jangala, J. granted bail to Alt News Co-founder for tweeting the image of a scene in the movie ‘Kisi se na Kehna’ which allegedly hurt religious sentiments and disrespected Lord Hanuman. The bail was granted as the investigation is not pending and thus, custody of the accused contains no merit as bail is the norm and jail is the exception.

A twitter user tagged Delhi Police under a tweet tweeted in the year 2018 by Alt News co-founder Mohammed Zubair wherein the image of a scene in the movie released in year 1983 for ‘unrestricted public exhibition’ by Central Board of Film Certification named ‘Kisi se na Kehna’ was posted along with “Before and After 2014” being written which allegedly pointed towards a political party, because of which the sentiments got hurt. Pursuant to which FIR was filed under Sections 153-A and 295-A Penal Code, 1860 (‘IPC’) and arrest was made. Thus, instant bail application was filed for releasing the accused on bail.

The Court noted that till date the investigating officer has been unable to trace the twitter handle user who registered his disappointment regarding the alleged tweet and thus, statement under Section 161 CrPC has not been recorded either by the offended twitter user. It is also pertinent to mention that alleged offensive tweet being of the year 2018, till date, year being 2022, no other complaint of like nature has been received.

Reliance was placed on Bilal Ahmed v. State of AP, (1997) 7 SCC 431 to emphasize the importance of mens rea for the category of offence alleged in the present case and Amish Devgan v. Union of India, (2021) 1 SCC 1 to observe that the import of Section 295A IPC is to curb speech made with ‘malicious intent‘ and not ‘offensive speech‘.

Thus, keeping in mind that the investigation will happen in accordance with principles laid down in CrPC, the Court noted that all the evidence is documentary in nature and the applicant/accused has already been taken into custody thus recovery has been effected and no useful purpose will be met by keeping the accused behind bars.

In light of principle that bail is the rule and jail is the exception, the Court granted bail to the accused on furnishing bail bond of Rs 50, 000 with one surety in the like amount to the satisfaction of Chief Metropolitan Magistrate subject to following conditions:

  1. Applicant shall furnish to the Investigating Officer SHO, a cell phone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched on at all times.
  2. Applicant shall not tamper with evidence nor otherwise indulge in any or omission that is unlawful or that would prejudice the proceedings in the pending matter.
  3. Applicant shall not leave the country without prior permission of the Court and will surrender his passport with the Investigating Agency within 3 days of his release from bail.
  4. Applicant/ accused shall not repeat the offence and shall ensure that his tweet or re-tweet or any material on social media is not even touching boundaries of the offence punishable under Section 153 A and 295 A IPC.
  5. Applicant/accused will join the investigation as and when called by the SHO/IO to do so.

[State v. Mohammed Zubair, Bail Application 1228 of 2022, decided on 15-07-2022]


Advocates who appeared in this case :

For applicant/ accused- Ms Vrinda Grover, Mr Soutik Banerjee, Ms Mannat Tipnis and Ms. Devika Tulsiani


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: H.P. Sandesh J. allowed the petition and set aside the bail granted by the Trial Court on the file of V Additional District and Sessions Judge.

 The facts of the case are such that accused 1 has been prosecuted for the offence punishable under Sections 376(2), 506 and 384 Penal Code, 1860 i.e. IPC and Sections 4, 5(f), 6, 8 and 14 of Protection of Children from Sexual Offences Act, 2012 (i.e. ‘POCSO Act’) and Section 67(b) of the Information Technology Act. Based on the complaint, case was registered against both respondent 2 and his wife, who was arraigned as accused 2. During the crime stage, respondent 2 herein filed an application for grant of bail and the Trial Court enlarged him on bail. Hence, the instant petition was filed under Section 439(2) of Criminal Procedure Code i.e. Cr.PC for cancellation of the bail.

Counsel for petitioners submitted that allowing the bail application is illegal, perverse and without application of mind. It was also contended that the Trial Court without considering the presumption enunciated in the POCSO Act, granted bail. It was submitted that the incident took place when the victim girl was below 16 years of age, which makes it mandatory on the Court to issue notice to the informant/complainant/victim.

Counsel for the respondents submitted that the Trial Court has observed that the complainant/victim girl and the Investigating Officer even the learned Special Public Prosecutor have ample opportunity to seek the cancellation of the bail of accused 1 in the event of collecting incriminating materials or violation of condition of bail by accused 1. When such an observation is made and detailed order has been passed, this Court cannot invoke Section 439(2) of Cr.P.C.

The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order

The Court observed that it is specific in the case on hand that accused 1 called the victim girl and subjected for sexual act and also taken the photographs and subsequently blackmailed the victim girl and collected an amount of Rs.10,000/-. It is important to note that when serious allegations are made and no doubt two letters are addressed in favour respondent 2, but whether those letters are addressed by the victim girl or not is a matter of trial and while considering the bail application those documents also cannot be relied upon and the same is subject to proof, but the fact is that she was subjected to sexual act and when the same is alleged and filing of complaint after two and half years cannot be a ground when specific allegation is made in the complaint that he had caused life threat and also taken photographs of subjecting her for sexual act.

The Court observed that it is not the case of the petitioner that respondent 2 has violated the conditions of the bail order, but the observation of the Trial Court is that if incriminating material is collected, the option is open to the victim.

The submission of the learned counsel is that this Court can give an opportunity to the petitioner to approach the Trial Court and the said situation does not arise when the order has been passed in noncompliance with the mandatory provisions of Section 439(1A) of Cr.P.C. and Section 376(3) of IPC and amended provision is brought into force in 2018. Apart from that, an exercise is made to analyze the evidence available on record and hurriedly passed the order. When such being the factual aspects of the case, it is nothing but perverse order is passed by the Trial Court while enlarging him on bail. The learned counsel for respondent No.2 submits that as on the date of lodging the complaint, the victim girl was aged about 17 years and the said contention cannot be accepted for the reason that the Court has to take note of subjecting the minor girl for sexual act and not the date of complaint.

Hence, the Court held it appropriate to invoke Section 439(2) of CrPC to cancel the bail granted by the Trial Court. It further held The accused be arrested and commit him to custody under Section 439(2) of CrPC. [Lalitha v State of Karnataka, Criminal Petition No. 7143 of 2021, decided on 14-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sachin BS

For respondents: Mr. V S Hegde, Mr. Krishnakumar and Mr. Chandrashekhar RP

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., remarked that,

Once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision.

Instant petitions were for grant of bail to the applicants.

Factual Matrix

An enquiry under FEMA, 1999 was commenced on 1-07-2017 by the respondent at various places against Naresh Jain and others, it was alleged that the petitioners and others had appeared on numerous occasions before the Enforcement Directorate and the enquiry was conducted for 2 years under Section 47 of the FEMA.

Further, the ED registered FIR with EOW Cell for Scheduled Offences under the Prevention of the Money Laundering Act, 2002. Thereafter, the petitioners appeared before the ED on several occasions. Searches were conducted by the ED under PMLA at the residential premises of the petitioner Bimal Jain also.

Prosecution complaint was filed before the Special Judge, PMLA against eight accused persons, including the petitioners herein. Petitioner Bimal Kumar Jain also joined the investigation of FEMA as also PMLA on various occasions.

Senior Counsel for the petitioner submitted that:

a) while arresting Bimal Jain, the procedure under Section 19 PMLA was not followed.

b) the Enforcement Directorate cannot be the complainant and the Investigating Officer at the same time; and

c) effect of declaration of twin conditions under Section 45 of the PMLA have been declared unconstitutional and ultra vires in view of decision in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.

Analysis, Law and Decision

Non-Compliance under Section 19 of the PMLA

High Court stated that since the arrest of accused Bimal Jain was in execution of the NBWs therefore, the provision under Section 19 of the PMLA could not be adhered to.

Admittedly, Bimal Jain was arrested in execution of the NBW by the Special Judge, PMLA while taking cognizance of prosecution complaint filed by the Enforcement Directorate and thus there was no occasion to comply with the requirement of Section 19 of the PMLA.

Bench stated that, the very fact the complaint was filed by the Enforcement Directorate arraying petitioner Bimal Jain as accused 2, prima facie shows there were reasons to believe the person was guilty of offence punishable under PMLA as the complaint was filed only against a person who was presumed to be guilty.

The Complainant and the Investigating Agency cannot be the same

Court referred to the decision of Mukesh Singh v. State (NCT) of Delhi, (2020) 10 SCC 120.

Twin conditions of Section 45 of the PMLA

Supreme Court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 declared Section 45 of the PMLA as it stood then, as unconstitutional and violative of Articles 14 and 21 of the Constitution of India, but the defects pointed out were cured by the legislature and an amendment to Section 45(1) was made vide Finance Act, 2018.

Supreme Court’s decision in P. Chidambaram v. E.D., (2019) 9 SCC 24 took judicial note of the above amendment.

High Court stated that the legislature has the power to cure the underlying defect pointed out by a Court, while striking down a provision of law and pass a suitable amendment. Bench referred to the decision of Supreme Court in State of Karnataka v. Karnataka Pawn Brokers Association, (2018) 6 SCC 363 it was held:-

“24. On analysis of the aforesaid judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect. However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment. If this is done, the same does not amount to statutory overruling.”

Adding to the above analysis, Court remarked that merely because the entire section was not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable.

Therefore, High Court held that there is a presumption in favour of constitutionality since the amended Section 45(1) of the PMLA has not been struck down, Court referred to the decision of the Supreme Court in Nagaland Senior Govt. Employees Welfare Assn. v. State of Nagaland, (2010) 7 SCC 643.

If Section 45(1) of the PMLA is ignored, whether the petitioners are entitled to bail per parameter of Section 439 CrPC?

The investigation by EG revealed that Naresh Jain and Bimal Jain along with other accomplices hatched a criminal conspiracy to cause loss to the exchequer and banks by indulging in illegal foreign exchange transaction on the basis of forged/fabricated documents.

Naresh Jain also facilitated parking of funds abroad by Indian nationals through his international Hawala transaction structure created in India and in various other jurisdictions. Naresh Jain conducted international Hawala operation and domestic operation of providing accommodation entries to co-conspirators.

Investigation so far, revealed that Naresh Jain incorporated and operated 450 Indian entities and 104 foreign entities. These entities were incorporated by using original identity proofs and documents of dummy shareholders and directors as well by fabricating identity proofs and documents of these shareholders and directors. Fabricated documents were used to open bank accounts as well.

Further, it was alleged that the petitioners were well connected in India and abroad and there was an apprehension that they will flee from the country to evade trial in case they were enlarged on bail. It was also alleged that Bimal Jain had evaded the summons issued by the department and had refused to join investigation.

ED alleged that the petitioners were involved in various criminal cases and even two Red Corner Notices were issued by Interpol against Naresh Kumar Jain.

Even the allegations were that the petitioners forged their medical certificates and Naresh Jain continues the criminal activities while in Jail and the investigation in the case is still going on and a large number of activities/fact accounts/witnesses /employees and beneficiaries are involved.

Adding to the above allegations, it was stated that if enlarged on bail there was every likelihood the petitioners may flee to Dubai or elsewhere to avoid the process of law and they were flight risks.

Hence, bail was not granted to the petitioners and the petitions were dismissed. [Bimal Kumar Jain and Naresh Jain v. Directorate of Enforcement, 2021 SCC OnLine Del 3847, decided on 30-07-2021]


Advocates before the Court:

For the Petitioner/s: Vikram Chaudhri, Sr. Advocate with Naveen Malhotra, and Harshit Sethi, Advocates.

For the Respondent: S.V.Raju, ASG, .Zoheb Hossain, Special Counsel, Amit Mahajan, CGSC, Aarushi Singh, Mallika Hiremath, Vivek Gurnani, and Agni Sen, Advocates

Himachal Pradesh High Court
Case Briefs

Himachal Pradesh High Court: Anoop Chitkara, J., granted bail and held that the law under Section 439 CrPC is very clear and in the eye of the law every accused is the same irrespective of their national.

The facts of the case are such that an under-trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of Criminal Procedure Code i.e. CrPC, seeking bail, on the grounds that the quantity of contraband allegedly seized is the intermediate quantity and does not restrict bail, because the quantity greater than 250 of Heroin, falls in the category of the commercial quantity; hence the restrictions for bail imposed in Section 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.

Counsel for the petitioners Mr Pushpinder Singh Jaiswal submitted that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. It was further submitted that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

Counsel for the State Mr Nand Lal Thakur, Mr Ram Lal Thakur, and Mr Rajat Chauhan submitted that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

The issue before the Court is with respect to whether the quantity attracts the rigors of Section 37 of the NDPS Act and should the bail be granted to a Nigerian national.

The Court relied on judgment Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471 and observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

The Court further relied on judgment Shokhista v. State, 2005 LawSuit (Del) 1316 wherein it was held

“The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I. T. P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so.”

The Court thus observed that the quantity of substance involved in this case does not restrict bail and in the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

The Court held that “the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”[Collins v. State of HP, 2021 SCC OnLine HP 787, decided on 27-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: S. K. Sahoo, J. rejected bail being devoid of merits.

The facts of the case are such that one Roop Lal Meena, Deputy General Manager, Union Bank of India, Bhubaneswar lodged a written complaint before the Superintendent of Police, CBI, Bhubaneswar stating therein that the accused bank officials of Union Bank of India, entered into a criminal conspiracy with three private builders, seven borrowers of housing loan and some unknown bank officials in the year 2017 and by abusing their respective official positions, housing loans were sanctioned in favour of the borrowers on the basis of false/ fictitious documents by violating the guidelines of the Bank. The petitioner along with other accused Bank officials without obtaining approved plan released the entire loan amounts which were allegedly diverted by the accused builders for other purposes which caused undue wrongful loss to the Bank. On receipt of the written complaint and prima facie finding the petitioner was charged for offences punishable under Sections 120-B, 420, 467, 468 and 471 of Penal Code, 1860 i.e. IPC  and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 i.e. PCA. In course of investigation, the investigating officer recorded the statements and arrested the petitioner for the commission of offences under Sections 409, 420 and 471 read with section 120-B IPC Section 13(2) read with Section 13(1)(d) PCA. The instant petition was filed under Section 439 of Criminal Procedure Code i.e. CrPC for grant of bail.

Counsel for the petitioners Mr. Devashis Panda submitted that the petitioner is in judicial custody since December 2020 and he being the then Assistant Marketing Manager of the Bank has never misused the public money in any manner.

Counsel for the respondents Mr. Sarthak Nayak vehemently opposed the prayer for bail and argued that the petitioner had sourced, processed and recommended the housing loan accounts in the names of ten borrowers on the basis of fake documents being in conspiracy with other co-accused persons.

The Court relied on judgment Y.S. Jagan Mohan Reddy v. C.B.I., (2013) 7 SCC 439 wherein it was held

“34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deeprooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.

  1. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of public/State and other similar considerations.”

The Court observed that the accusation against the petitioner relates to commission of economic offences which are considered to be grave offences and are to be viewed seriously. Such offences affect the economy of the country as a whole and it involves deep-rooted conspiracy and huge loss of public fund. It was further observed that in such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of public and State.

The Court relied on judgment Sanjay Chandra v. CBI, (2012) 1 SCC 40 wherein it was held that

“25………It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”.

The Court observed that it appears that the crime was committed in a cool, calculated and organized manner causing wrongful loss of crores to the Bank. There are prima facie materials showing involvement of the petitioner in the deep-rooted conspiracy with other co-accused persons to cause such a huge loss to the Bank.

The Court thus held “granting bail to the petitioner in economic offences of this nature would be against the larger interest of public and State as it involves criminal misappropriation and cheating of huge amount of public money and there is also reasonable apprehension of tampering with the witnesses.”

 In view of the above, bail was rejected and petition was dismissed.[Ashwini Kumar Patra v. Republic of India, 2021 SCC OnLine Ori 438, decided on 26-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J., granted regular bail on grounds that she is a mother of an infant child dependent upon her breasts feeding.

The facts of the case are such that the victim left home for school and did not return. On her father contacting school authorities 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 in 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 petitioner is the sister of the main accused Nazim who is charged under Sections 366A, 370(4), 506 and 120B IPC. The victim was recovered from the petitioner and after victim’s statement was recorded, the petitioner was brought to police station for interrogation and was arrested later. The Petitioner has approached this Court under Section 439 Criminal Procedure Code (i.e. Cr.P.C.), seeking regular bail.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that petitioner is a woman having her family and a permanent home in Village Dhakia, District Amroha, U.P., and there is no possibility of her fleeing from justice.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that that co-accused Ibad, who is husband of petitioner is not submitting himself to the Investigating Agency for interrogation and petitioner was actively playing role for hiding a minor girl (victim) and had been resisting handing over the girl to the police.

The Court observed that Section 437 CrPC deals with situation when accused is produced before the Magistrate and Section 439 CrPC devolves special power on the High Court and/or Court of Sessions regarding the bail and both Sections deal with different situations in different Courts, but it is also settled position that provisions contained in Sections 437 and 438 CrPC can also be taken into consideration at the time of considering bail under Section 439 CrPC. In fact, Section 437 CrPC refrains the Court, other than the High Court or Court of Sessions, from releasing a person, accused or suspect of commission of any non-bailable offence, who is arrested or detained for without warrant, or appears, or is produced before such Court and there appears reasonable ground for believing that he is guilty of an offence punishable with death, or imprisonment for life. However, an exception has been carved out enabling such Court to release such a person on bail, in case, such person is under the age of sixteen years, or is a woman, or is sick, or infirm, with the further provision that no such person shall be released without giving an opportunity of hearing to the Public Prosecutor.

The Court thus held “Considering entire facts and circumstances brought before me with respect to role of petitioner coupled with the fact that she is a mother of an infant child dependent upon her breasts feeding, I am of the opinion that at this stage, petitioner is entitled to be enlarged on bail”.

In view of the above, petition was dismissed.[Nasrin v. State of Himachal Pradesh, 2021 SCC OnLine HP 657, decided on 09-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Akhil Kumar Srivastava, J., dismissed the appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for the release of the appellant-accused in connection with the FIR registered for offence punishable Sections 363, 366, 344, 328, 506, 376(2)(N) and 376(D) of Penal Code, 1860 and Sections 3(1)(w)(i) and 3 (2) (v) of SC/ST Act.

The instant appeal has been filed against the impugned order dated 09-06-2020 passed by the Special Judge, S.C./S.T (Prevention of Atrocities) Act, Jabalpur in B.A. No. SCATR/20260/18 whereby the court has dismissed the application filed by the appellant-accused under Section 439 of CrPC.

Counsel for the appellant, Savita Choudhary has submitted that the appellant has been falsely implicated and he has been languishing in custody since the past two years with the trial still pending. Further, it is brought to the Court’s notice that there is a delay in filing the FIR for which no reasonable explanation has been tendered from the respondent’s end. The victim is married to the appellant and to substantiate the same, an affidavit sworn by the victim has been presented.

Counsel for the respondent, Anuj Singh vehemently opposed the present appeal and prayed for its rejection on the ground that gang raPe is a crime of heinous nature and the appellant has legitimately been implicated based on the victim’s statement under Section 164 of the CrPC. which should suffice.

Upon careful perusal of the facts, circumstances and the arguments advances the Court observed that a clear case of gang rape is made out and the delay in lodging the FIR is not a sufficient ground which could compel them to discard the entire case of the prosecution. It is also not absolutely necessary that the crime be medically corroborated. The Court relied heavily on the victim’s statement recorded under Section 164 of the CrPC and other relevant materials available.

In view of the above, the appeal has been dismissed by the Court for lack of merit.[Harishchandra v. State of M.P., 2020 SCC OnLine MP 2321, decided on 16-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J., while deciding an application against cancellation of bail said: in cases where “any bail application of accused is allowed or rejected under Section 439 CrPC by the Special Court then appeal shall not lie under Section 14–A(2) of the Atrocities Act. Only an application under Section 439 CrPC for bail shall lie.”

Brief Facts

The instant applicant under Section 439(2) of Code of Criminal Procedure has been preferred by the applicant-complainant for cancellation of bail granted to respondent 2, the accused who was enlarged on bail by this Court vide order dated 26-02-2020 in Criminal Appeal No. 1759/2020. Accused is facing trial for offence under Section 363, 366-A, 376 of the Penal Code, Section 3 (1)(w)(ii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

Issue

  1. Whether High Court can entertain an application under Section 439(2) of CrPC for cancellation of bail granted in exercise of powers conferred under Section 14-A(2) of Atrocities Act?
  2. Whether the Court granting bail in an appeal under Section 14-A(2) of Atrocities Act can be recalled/cancelled as the order granting bail does not attain finality?
  3. Whether in an offence where the provisions of the Atrocities Act and POCSO Act are involved, the procedural law of the POCSO Act will apply or the provisions of Atrocities Act?
  4. Whether, in a composite offence involving of provisions of POCSO Act and Atrocities Act, an order refusing bail under Section 439 CrPC will be appealable as per Section 14-A(2) of Atrocities Act or an application under Section 439 CrPC will lie before the High Court?
  5. What is the scope and extent of bail conditions as referred in Section 437(3) of CrPC?

Observations

  • Answering issue (i) and (ii), the Court explained the altered position of Section 439 CrPC, after the recent amendment to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, remarking,

“By virtue of such amendments, which came into being in year 2016, concurrent jurisdiction of this Court to grant regular bail under Section 439 CrPC has been taken away and in place of concurrent jurisdiction, an appellate jurisdiction has been conferred by way of an appeal under Section 14-A(2) of Atrocities Act. Although, provisions of appeal has been made but it still emanates from an order of refusal of bail by Special Court under Section 439 of CrPC. Original statutory source of Section 439 is still intact. Only difference is replacement of concurrent jurisdiction with appellate jurisdiction.”

  • The Court reiterated the legislative intent of the amendment enforced in 2016 and said that, the very objective of it was Speedy Trial and Protection of Victim’s Rights. It further elaborated the definition of Victim under the Atrocities Act in comparison with the definition stated under Section 2(wa) CrPC. Furthermore, the Court acknowledged the Victim’s right to appear before the Court at the time of hearing of bail application as enshrined under the said Act. With respect to intent and objectives of the Act, the Court placed reliance on, Provision of Section 14-A, SC/CT (Prevention of Atrocities) Amendment Act, 2015 (Allahabad HC, Criminal Writ and Public Interest Litigation No. 8/2018) and Bishveshwar Mishra v. State of Bihar (Patna HC, Criminal Miscellaneous No. 25276/2016)
  • Furthermore, the Court relying upon the case of Puran v. Rambilas, (2001) 6 SCC 338, held that the High Court being the superior court has inherent powers to cancel the bail and no interpretation which restricts these powers or nullifies Section 439(2), CrPC can supersede. Reflecting upon the Mischief Rule of Interpretation, the Court highlighted four principles that must be considered for true interpretation of any statute: (i) What was the common law before making of the Act, (ii) What was the mischief and defect for which the common law did not provide, (iii) What remedy the Parliament has resolved and appointed to cure the disease of the Commonwealth and (iv) The true reason of the remedy.
  • The court further cited, Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, elaborating on secondary victimization of the complainant, the term as coined by the Supreme Court;

 “… today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both.

  • Regarding the application of procedural laws in case of two special laws, for instance, POCSO and Atrocities Act, as in the present case, the Court said that provisions of POCSO Act are in addition and not in derogation of the provisions of any law including Atrocities Act. Since the victim is a minor girl, almost a child, and the objective of POCSO Act is to protect children from sexual offences, the Special Court under POCSO Act would be the appropriate forum rather than the Special Court under Atrocities Act.
  • With respect to issue (iv), the Court said, against the order of Special Court (POCSO Act), application under Section 439 CrPC for bail shall be maintainable instead of appeal under Section 14-A(2) of the Atrocities Act.
  • Discussing the scope and extent of bail conditions under Section 437(3) of CrPC, the Court said that it has a wider scope to cover community service and other reformative measures, not being “excessive, freakish and onerous” in nature. For concluding the same, reliance was placed upon Report Nos. 36, 47, 156, 268 of the Law Commission of India and as reflected in the particular judgment of the Supreme Court in the case of Munish Bhasin v. State (NCT of Delhi), (2009) 4 SCC 45, and Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570.

Decision

While deciding the question of jurisdiction and grant of bail, the Court directed the office to place this matter before the Acting Chief Justice of the High Court for issuance of necessary guidance and for circulation amongst District and Sessions Judges for information and compliance. It further said,

“When an accused is being tried under the Atrocities Act as well as the POCSO Act simultaneously, then Special Courts under POCSO Act shall have the jurisdiction and if in the event that any bail application of accused is allowed or rejected under Section 439 of Cr.P.C. by that Special Court then appeal shall not lie under Section 14-A (2) of the Atrocities Act. Only an application under Section 439 of Cr.P.C. for bail shall lie.”

The true reason for the remedy is to provide speedy justice to the victims and for the provisions to act as a deterrent to the miscreants. The right of victims to approach the High Court in case of bail condition should not be violated to defeat the very spirit of the SC/ST Amendment Act in 2015.[Sunita Gandharva v. State of M.P., 2020 SCC OnLine MP 2193, decided on 8-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., addressed a petition while reiterating the Supreme Court’s position in regard to Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 in view of bail.

Petition was filed under Section 439 Criminal Procedure Code, 1973 to enlarge the petitioner on bail. The case was registered for the offence under Section 20(b)(c) read with Section 8 (c) of the Narcotics Drugs and Psychotropic Substances Act, 1985.

Petitioner contended that nothing was recovered from him and he was implicated in the commission of offence only for monetary benefit, whereas A1 and A2 were found transporting Ganja in contravention of the NDPS Act, 1985 which constitute an offence punishable under Section 20(b)(c) read with 8(c) of NDPS Act.

It was stated that in case the petitioner was granted bail, there was every possibility of interfering with further investigation in the matter.

Court’s Analysis and Decision

Bench stated that unless it will be satisfied with the requirement under Section 37 of the NDPS Act, the petitioner cannot be enlarged on bail as a matter of course in view of the Supreme Court’s decision in State of Kerala v. Rajesh, 2020 SCC OnLine SC 81 which relied upon the decisions reported in Satpal Singh vs. State of Punjab, (2018) 13 SCC 813 and Union of India v. Ram Samujh, (1999) 9 SCC 429, wherein it was held that,

“The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C, but is also subject to the limitation placed by Section 37 which commences with non-obstanate clause”

“…The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.”

Hence in view of the above-stated reasons, and the principle laid down by the Supreme Court, bail was denied to the petitioner. [Chipurupalli Dali Naidu v. State of Andhra Pradesh, 2020 SCC OnLine AP 966, decided on 21-09-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., dismissed a bail application of a woman who was involved in six murder cases.

Petitioner was accused of offences punishable under Sections 110, 120(B), 201, 302, read with Section 34 of the Penal Code, 1860 and under Section 2 read with  6(2) of the Poison Act.

For the above-stated offences, the petitioner has been arrested and is in judicial custody since 2019.

Prosecution Case

Petitioner who is also the 1st accused with an intention to kill the minor daughter of her second husband poisoned the child through food and killed the said child by administering cyanide which was procured with the aid and assistance of the accused 2 and 3.

For the ulterior intention and motive to marry Shaju Sakhariyas, who is a teacher and having a fixed and regular government salary, the 1st accused plotted a plan to do away with the little daughter of Shaju.

The child was calculated as a burden in the future by the petitioner.

After about 1.5 years of the above incident, 1st accused killed the first wife of the said Shaju by administering cyanide and thereafter married Shaju within a short span of time.

Petitioner approached this Court with a bail application.

Petitioner’s Counsel submitted that the petitioner being a woman is entitled the benefit of proviso to Section 437(1) CrPC. The said proviso states that,

‘the Court may direct that a person referred to in Clause(i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm’.

Court stated that the word ‘may’ used in proviso itself shows that its the discretion of the Court to either grant bail or not.

Hence, simply because the petitioner is a woman, she is not entitled to bail and in the present matter, allegations against the petitioner are very serious.

Court further considered the contention of the Public Prosecutor that the petitioner had attempted to commit suicide inside the jail and releasing the petitioner at this stage would be dangerous.

Bench stated that the petitioner is involved in 6 murder cases and the modus operandi of the petitioner is almost the same in all the cases.

Therefore, considering the facts and circumstances, the petitioner is not entitled to bail under Section 439 CrPC.  [Jollyamma Joseph v. State of Kerala, 2020 SCC OnLine Ker 3265, decided on 14-08-2020]

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]

Gauhati High Court
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]

Himachal Pradesh High Court
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]

Himachal Pradesh High Court
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]