Undertrial

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., remarked that,

“…achievement of universal equality before the law requires the tenets of personal liberty to be applicable to all similarly circumstanced individuals and must not be restricted unless according to procedure established by law.”

A petition under Section 439 of Criminal Procedure Code, 1973 sought interim bail in an FIR registered under Sections 468, 471, 201 of the Penal Code, 1860 (IPC) and Sections 20, 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS).

Background

One Danveer was involved in an illegal interstate supply of drugs to foreigners in various states in India for the purpose of rave parties. Hence raid was conducted. Charas/hasish of total weight 2.210 kgs was found.

In view of the above, the petitioner was arrested, and first bail application was moved by the petitioner before the trial court and the same was dismissed, later the second application was also dismissed. Further, even the third bail application was dismissed.

Petitioner approached this Court by way of interim petition for interim bail. This Court had converted the instant interim bail application into one for regular bail.

Analysis, Law and Decision

High Court referred to the Supreme Court decision in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731, wherein the petition had been instituted with the aim to ensure that undertrial prisoners who had been languishing in jail for an extended period of time were granted bail despite the stringency of the provisions for bail under the NDPS Act. The underlying reason for the same was to uphold the right to personal liberty and the right to speedy trial of an undertrial under Article 21 of the Constitution of India.

In view of the above Supreme Court decision, it was categorically noted that,

“…where an undertrial accused has been charged with offence(s) under the NDPS Act which is punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, then such an undertrial is to be released if he has been in jail for not less than five years.”

Further, the Bench expressed that,

“It is unconscionable to state that the rights guaranteed under Article 21 can be subjected to such arbitrary categorisation and would not apply across the board to all undertrials in NDPS cases who are at the receiving end of inordinate delay in trial.”

High Court opined that the petitioner was entitled to release on account of inordinate delay in trial and prolonged judicial custody.

“Right to speedy trial is an intrinsic part of Article 21 of the Constitution of India.”

Further, the High Court added that the Courts must remain cognizant of the deleterious impact of drugs on society, it is also important to keep in mind that deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution.

The Bench found the present case fit for granting bail, subject to the following conditions:

a)  The Petitioner shall furnish a personal bond in the sum of Rs 1,00,000 with two sureties of the like amount, one of them should be the relative of the Petitioner, to the satisfaction of the Trial Court;

b)  The Petitioner is directed to deposit his passport with the Trial Court.

c)  The Petitioner is directed to reside in Delhi till further orders and the address shall be verified by the learned Trial Court at the time of acceptance of bail bonds.

d)  The Petitioner shall report to the concerned Police Station twice in a week, that is, on every Wednesday and Friday at 10:30 AM, and the Police is directed to release him by 11:00 AM after recording his presence and completion of all the necessary formalities;

e)  The Petitioner shall not leave NCT of Delhi without the prior permission of the trial Court;

f)  The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times;

g)  The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner;

h)  In case it is established that the petitioner has indulged in similar kind of offences or tried to tamper with the evidence, the bail granted to the petitioner shall stand cancelled forthwith.

In view of the above observations, the application was disposed of. [Anil Kumar v. State, 2022 SCC OnLine Del 778, decided on 21-3-2022]

Advocates before the Court:

For the Petitioner:

Mr. Rajinder Singh and Mr. Piyush Gupta, Ms. Himanshi Batheja, Advocates.

For the Respondent:

Mr. Amit Chadha, APP for the State with SI Thakur Singh, PS Special Cell

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

An application was filed under Section 439(2) of Criminal Procedure Code, 1973 read with Section 482 CrPC for cancellation of the anticipatory bail granted to respondents 2 to 5 passed by the Patiala House Court for the offence under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 of the Penal Code, 1860.

Complainant had given a complaint against her husband, mother-in-law and brother-in-law for offences under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 IPC.

Apprehending arrest, respondents filed an application under Section 438 CrPC seeking a grant of anticipatory bail.

Additional Sessions Judge found that the grievance of the complainant, that the matter had not been investigated fairly or that the investigating agencies acted in connivance with the accused could be addressed by moving the Metropolitan Magistrate and it is for the Metropolitan Magistrate to order further investigation under Section 173(8) CrPC.

The above-said order had been assailed by the complainant.

Trial Court granted anticipatory bail to the accused after considering the statements of the accused. Status Report noted that the respondents had joined the investigation and were cooperative, both before and after being granted protection from arrest by the Trial Court.

Difference between: Rejection of application for Bail v. Cancellation of Bail

Rejection of application for Bail

Cancellation of Bail
An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the Court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused.

In the case of cancellation, the Court is called upon to extinguish the liberty that has been formerly granted.

When can a Court seize the liberty of an accused undertrial?

Stating that a Court must tread with the utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the Court, Bench explained when a Court can exercise its jurisdiction in seizing the liberty of an accused undertrial.

Supreme Court in the decisions of Delhi Admn. V. Sanjay Gandhi, (1978) 2 SCC 411 and Dolat Ram v. State of Haryana, (1995) 1 SCC 349, expounded the position in law vis a vis cancellation of bail.

The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.

Application for Cancellation of Bail and Grant of bail are different from each other, Bench added that High Court will not exercise its jurisdiction to interfere with an order of bail granted by Special Judge if there is no serious infirmity in it.

In the present matter, Court found the order of the ASJ to be well reasoned requiring no interference.

Lastly, the Court dismissed the petition noting that Court has not made any observation on the nature/manner of investigation, and if an application challenging the nature/manner of investigation is filed by the complainant, the Trial Court is requested to consider the same. [Charu Soneja v. State (NCT of Delhi), 2022 SCC OnLine Del 5, decided on 3-1-2022]

Advocates before the Court:

For the Petitioner: Mr K. K. Manan, Senior Advocate with Ms Uditi Bali and Ms Komal Vashist, Advocates

For the Respondent:  Ms Kusum Dhalla, APP for the State with SI Ravinder Kumar, PS Naraina Ms Kamlesh Mahajan, Advocate for R-2 to R-5

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., dismissed a writ petition filed by the State seeking a writ for setting aside the show cause notice and orders passed by the National Human Rights Commission (NHRC) relating to the suicide of an under trial prisoner (UTP) Roshan Chettri in District Jail, Namchi, as being arbitrary and illegal.

NHRC had issued a show cause notice to the Chief Secretary of the petitioner in this relation further adding that the Investigation Division of NHRC after collecting/analyzing relevant reports/records has submitted that the deceased UTP was a covid-19 positive patient and was in quarantine along with another UTP. On 04.04.2020, at 11 a.m., the deceased made an attempt to commit suicide by hanging on the door of his cell with the help of cloth of the blanket provided to him but that act was noticed by his cell mate who caught hold his body and called out for help. Subsequently, jail authorities arrived and brought him down by cutting the blanket cloth. He was immediately shifted to hospital wherein he died during the treatment. The inquest and the Post Mortem Examination (PME) revealed no injury on the body of the deceased other than ligature marks, the cause of death was asphyxia due to hanging. The notice required the petitioner to show cause as to why monetary compensation of Rs.3,75,000/- should not be recommended under section 18(a)(i) of the Protection of Human Rights Act, 1993, to be paid to the next of kin of the deceased Roshan Chettri.

The petitioner responded to the show cause notice stating that no case of negligence on the part of jail administration was found during the judicial enquiry by the Judicial Magistrate, South Sikkim at Namchi. In the meanwhile, Dilip Chettri, father of the deceased filed a writ petition praying for a direction upon the state respondents to pay compensation to the tune of Rs.20,00,000/- as well as for an independent investigation of the incident of the alleged suicide by a retired judge or a government officer or any other person as deemed fit. The writ petition was taken up by the Single Bench of this court and was dismissed in limine.

The petitioner claimed to be aggrieved on counts :

  • that inspite of the dismissal of W.P.(C) No. 02 of 2021 (supra) by this court, the NHRC has passed the impugned orders which was barred by the principle of res judicata;
  • that the show cause notice and the impugned orders did not disclose the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights;
  • that the NHRC could not have entertained the complaint under Regulation 9(xi) and 9(xii) of the National Human Rights Commission (Procedure) Regulations, 1994; and
  • that the NHRC did not consider the final inquiry report dated 20-5-2021 of the learned Judicial Magistrate and the final report of the Namchi Police Station.
  • It is further argued that merely because suicide took place during the day, it does not in any manner corroborate or substantiate that there was any negligence on the part of the police authorities.

The Court relied on the decision of the Supreme Court in Dario v. State of Uttar Pradesh, AIR 1961 SC 1457 and reiterated that if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata and although, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the court took the view that there was no substance in the petition at all, but in the absence of the speaking order it would not be easy to decide what factors weighed in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata.

The Court further held that the State is vicariously liable to compensate the next of kin of the deceased UTP. It is not the case of the petitioner that the jail was not under its control when the incident happened in the manner described and admittedly inside the jail.

The petition was finally dismissed holding it as misconceived.[State of Sikkim v. NHRC, 2021 SCC OnLine Sikk 183, decided on 03-12-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Mr Hissey Gyaltsen, Assistant Government Advocate for the petitioner.

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a bail application of a person alleged to have been involved in burning the shop during the Delhi Riots, stated that:

“..ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two.”

What transpired the bail application?

Present bail application has been filed by a person who has been taken into custody under Sections 147, 148, 149, 427 and 436 of Penal Code, 1860, though he sought bail on the grounds that neither has he been named in the FIR nor is there any allegation in the FIR nor any other material collected during investigation which would have identified him as one of the perpetrators in the offences alleged.

Supplementary Statement of Complainant

The first statement of the complainant has not been filed on record. Though APP submitted that the same has been extracted in-extenso in the FIR itself.

Senior Counsel, Rebecca John — for the applicant

Submissions:

  • Complainant’s supplementary statement on which the State sought to rely did not in any manner identify or connect the applicant to the alleged offences.
  • No test identification parade was conducted of the applicant to get the complainant to identify him
  • Applicant is a resides 15-minutes away from the complainant’s shop; and therefore the applicant’s presence in the vicinity of the shop cannot be assumed, unless there is evidence to that effect, which there isn’t.

Another point that is to be taken note of is that the co-accused with the applicant has already been admitted to bail by Additional Sessions Judge.

APP, Hirein Sharma for the State — Opposing Bail

While opposing the bail he submitted that applicant had been identified by complainant; Constable Vikas and the CCTV footage of Rajdhani School also identifies the applicant — these hold a sufficient basis to hold him in judicial custody. Overall there were around 250 to 300 rioters in the area at the relevant time.

Complainant’s supplementary statement

Complainant only submitted that in the video and photos shown to him in the police officer’s cellphone, he had identified 2 persons who set fire to his shop and, if confronted, he will be able to identify other persons who were present.

According to the State’s status report dated 23rd may, 2020, no footage of the incident is available and the cameras installed by PWD in various parts of the area are still awaited.

Ct. Vikas in his statement submitted two names including the applicant’s name.

It is extremely important to note however, that in the complainant’s statement upon which the FIR was recorded, the complainant says that when the rioters vandalised his shop, he tele- phoned the police but the police telephones were going busy ; and that therefore he ran away to save his life. In the teeth of this statement of the complainant that there was no police help on hand, Ct. Vikas claims that he was present at the scene of the offence and in- ter-alia saw the applicant commit the offences.

Now another point with regard to CCTV footage that is to be noted is that the Rajdhani School and applicant’s shop are at a 400 meters distance with a 5 minute walk but on 2 different sides of a turn in the road. Therefore, it appears incredible that camera/s installed in the school would be able to ‘see’ the complainant’s shop.

Additional Status report of the State says that:

“…. Granting of bail at this early stage may send an ad- verse message in the society and such crimes should not be allowed to happen in the national capital. ….”.

(Emphasis supplied)

Decision of the Bench

“Prison is primarily for punishing convicts; not fo detaining undertrials in order to send any ‘message’ to society.”

Further the Court observed that remit of the Court is to dispense justice in accordance with law, not to send messages to society.

It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system.

In regard to the present matter, Court cannot but notice that the offences under Sections 147/148/149 IPC arise in the context of an ‘unlawful assembly’, which Section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision ; while in the present case only 2 persons appear to have been charged.

On perusal of the above, Court admits the applicant to regular bail on following conditions:

  • Rs 50,000 Personal Bond; 2 sureties of the like amount from blood-relatives
  • Cannot leave NCR without Court’s permission
  • Shall present himself on every alternate Wednesday between 11 am and 11.30 am before the investigation officer.
  • Passport to be surrendered
  • applicant shall not contact nor visit nor threaten nor offer any inducement to the first informant/complainant or any of the prosecution witnesses. The applicant shall not tamper with evidence.

Court added to its observation that,

In this peculiar circumstance, this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons.

In view of the above discussion, bail application is allowed. [Firoz Khan v. State (NCT of Delhi), Bail Application No. 945 of 2020, decided on 29-05-2020]