Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Kurian Jospeh, MM Shantanagoudan and Navin Sinha, JJ asked larger bench to authoritatively settle the following questions in a clear and unambiguous way:

  • Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
  • Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

The issue as to whether an anticipatory bail should be for a limited period of time was before the bench for consideration and it took note of the fact that there were conflicting views of the different Benches of varying strength on the said issue.

While the Constitution Bench verdict in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, holds that anticipatory bail should not be for a limited period, the 3-judge bench verdict in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, without referring to the aforementioned Constitution Bench verdict, holds that anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.

Amicus Curiae Harin P. Raval, hence, submitted before the Court that in the light of the two conflicting schools of thought the matter needs consideration by a larger Bench. According to him even the Constitution Bench in Sibbia Case does not, in so many words, lay down a proposition that the protection of anticipatory bail is available to an accused till the conclusion of the trial.

The Court noticed that in Sibbia case, the Court has only briefly dealt with the question of duration of anticipatory bail and has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever. Hence, the Bench referred the matter to a larger bench. [Sushila Aggarwal v. State (NCT of Delhi), SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281-7282 OF 2017, decided on 15.05.2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Sreenivas Harish Kumar, J. decided a criminal petition, wherein the Court released the accused on bail in light of lack of prima facie case against him.

The petitioner-accused was booked in a criminal case for offences punishable under Sections 4 and 6 of Prevention of Children from Sexual Offences (POCSO) Act along with Sections 363 and 376 IPC. The complaint was filed by the mother of the victim girl. The girl was traced and her statement was recorded under Section 164 CrPC. In her statement, the girl stated that she was in love with the accused. They wanted to marry each other. The accused came to her college and took her with him to his sister’s house.

On perusal of the statement of the girl, the Court was of the view that at the instant stage, prima facie materials were not forthcoming to make out a case for alleged offence under POCSO Act and IPC. The statement of the girl clearly showed that there was love between her and the accused. The investigation was complete and charge-sheet had been filed. The Court held that detention of the petitioner in custody was not necessary. Therefore, the petition was allowed and the accused was enlarged on bail subject to the conditions imposed. [Putappa v. State of Karnataka, Crl. Petition No. 9797 of 2017, dated 27.4.2018]

Case BriefsHigh Courts

Jammu And Kashmir High Court: The order passed by the Special Magistrate cancelling the interim bail granted to the petitioners-accused was set aside by a Single Judge Bench comprising of Janak Raj Kotwal, J.

The petitioners were booked under Sections 323, 341 and 354 of Ranbir Penal Code (RPC), 1989 along with Section 7(c) of the Protection of Civil Rights (PCR) Act, 1955. The petitioners applied for bail and the Special Judge by a detailed order admitted the petitioners to interim bail. Thereafter, considering the application moved by the victim of the alleged incident, the same Magistrate cancelled the bail already granted to the petitioners on the ground that they concealed the fact that they had moved an anticipatory bail application before the 1st Additional Sessions Judge which was dismissed as withdrawn; and also that the petitioners concealed the incorporation of special offence under the PCR Act in the FIR. Against this order of the Magistrate canceling the bail of the petitioners, they filed the instant petition.

The Court held it to be a well settled legal position that bail, interim or final, once granted, can be cancelled only if a case for cancellation is made out having regard to the factors, which are certainly other than those to be considered for the purpose of grant/refusal of bail. On considering the record, the Court found that there was no concealment of facts as alleged by the victim, stated hereinabove. The Court relied on the Supreme Court decision in Daulat Ram v. State of Haryana, (1995) 1 SCC 349, wherein it was held that:

“…the ground for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record or the possibility of the accused absconding is yet another reason justifying the cancellation of bail”.

Hence, the Court allowed the petition and quashed the order of the Magistrate canceling bail of the petitioners holding that the Magistrate fell in error of law in recalling the bail order on misconceived pleas of the victim. [Bushan Kumar v. State, 2018 SCC OnLine J&K 262, order dated 18-04-2018]

 

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sandeep Sharma, J. decided a criminal petition, wherein the petitioner was granted anticipatory bail reiterating that an accused is innocent until proven guilty in accordance with law.

The petitioner was apprehending arrest in a criminal case arising out of an FIR registered under Sections 420 and 406 IPC along with Sections 3 and 7 of the Essential Commodities Act, 1955. Learned Advocate General appearing for the State admitted that pursuant to the earlier order of the High Court, the petitioner handed over the entire stock of wheat/flour to the Officials of the Food and Civil Supply Corporation. Learned counsel for the petitioner submitted that the petitioner had duly complied with the order of the Court and was co-operating with the investigation and hence, petitioner’s custody was not necessary and he may be granted anticipatory bail.

The High Court perused the record as well as submissions made on behalf of the parties and found it to be fit case to exercise jurisdiction in favour of the petitioner. The Court, referring to various decisions of the Supreme Court observed that the object of bail is to secure attendance of the accused in the trial; an accused is innocent until he is proven guilty in accordance with law; freedom of an individual is of utmost importance and cannot be curtailed merely on ground of suspicion; and even otherwise normal rule is of bail and not jail. The Court held that in light of the fact that the petitioner handed over entire stock of wheat/flour held by him in compliance of the order of the Court and also that he was co-operating in the investigation, the petitioner had made out a case for grant of anticipatory bail in his favour.

Accordingly, the petition was allowed and the petitioner was enlarged on anticipatory bail, subject to the conditions imposed. [Rakesh Kumar Kaushal v. State of H.P.,  2018 SCC OnLine HP 486, order dated 13.4.2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Chander Bhusan Barowalia, J. decided a criminal petition filed under Section 438 CrPC, wherein the petitioner was granted anticipatory bail considering the facts and circumstances of the case.

The petitioner was accused of committing offence punishable under Section 376 IPC. It was alleged that on the pretext of marrying the prosecutrix, the petitioner harassed her physically and mentally. Learned counsel for the petitioner submitted that the FIR was a result of some confusion that the petitioner was marrying another lady, however, such fact was denied by the petitioner. In fact, subsequently, the petitioner had married the prosecutrix. Counsel prayed that petitioner’s bail application may be allowed and he may be granted anticipatory bail.

The High Court perused the record and found that the fact of marriage between the petitioner and the prosecutrix was evident from the marriage certificate produced before the Court. Further it was observed that the petitioner was employed in the Indian Army; he was joining and cooperating in the investigation; and was neither in a position to flee from justice, nor in a position to tamper with evidence. Considering all these facts and circumstances, the Court held that this was a fit case to exercise judicial discretion in favour of the petitioner. Accordingly, the petition was allowed and the petitioner was granted anticipatory bail, subject to the conditions imposed. [Rajender Kumar v. State of H.P., 2018 SCC OnLine HP 357, dated 2.4.2018]

 

Case BriefsHigh Courts

Rajasthan High Court: The accused-appellant who was in custody in relation to offences punishable under various sections of IPC and POCSO Act, was enlarged on bail by a Single Judge Bench comprising of P.K. Lohra, J.

The accused was charged under Sections 363, 366-A, 342 and 376 of IPC along with Sections 5 and 6 of the POCSO Act. The accused had filed a post-arrest bail application which was rejected by the learned Special Judge. The said order was challenged by the accused-appellant in the instant petition. Learned counsel for the petitioner submitted that the trial court did not appreciate the evidence in proper light and prayed that the accused be enlarged on bail.

The High Court bestowed its consideration to the arguments advanced at the Bar and perused the evidence on record as well as the impugned order. The Court closely considered the submissions made on behalf of the appellant that in his statement, the medical expert stated that the prosecutrix was above 18 years of age. There was a delay of more than one and a half month, from the date of incident, in lodging the FIR which per se creates doubt about the incident. The prosecutrix accompanied the appellant of her own volition and lived with him for about two months. There were contradictions in the statements of the prosecutrix herself. Further, the appellant was in custody for about one and a half year and completion of trial was likely to take considerable time. Considering these facts and circumstances of the case, the Court held that the trial court erred in declining bail to the accused-appellant. Therefore, the impugned order was set aside and the appellant was enlarged on bail. [Ramdev v. State of Rajasthan, 2018 SCC OnLine Raj 740,  order dated 05-04-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of John Michael Cunha, J., decided a criminal petition filed under Section 439 CrPC, wherein the petitioners- Accused 2 and 3, were enlarged on bail, holding that the circumstantial evidence against the petitioners placed on record was not sufficient to extend the custody of the petitioners.

The petitioners were booked under Sections 143, 147, 148, 302, 323, 363, 506 read with Section 149 IPC. It was alleged that the petitioners caused death of the deceased. Learned counsel for the petitioners submitted that the case against the petitioners was based on suspicion. And the evidence collected by the prosecution was too week to connect the petitioners to the alleged crime. He submitted that the investigation in the case was complete and hence, the petitioners may be enlarged on bail.

The High Court perused the record and found that the case of the prosecution was based on circumstantial evidence. The circumstance relied on by the prosecution was the last seen theory. However, there was no clear material as to the motive behind the alleged crime. Therefore, taking into consideration all the facts and circumstances, the Court held that it was not proper to extend the custody of the petitioners solely by way of punishment. Accordingly, the petitioners- accused 2 and 3, were enlarged on bail. [Jameer v. State of Karnataka, Crl. Petition No. 100086 of 2018, order dated 23.3.2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Sreenivas Harish Kumar, J., allowed a criminal petition filed under Section 439 of CrPC and granted bail to the petitioner considering the facts and circumstances of the case.

The petitioner was a co-accused in a criminal case registered under Section 304 read with Section 34 of IPC. The allegation against the petitioner was that he, along with other accused persons, assaulted the deceased outside a church that resulted in his death. Learned counsel for the petitioner prayed that he may be enlarged on bail contending that from the averments made in the complaint, intention on the part of accused to cause death of the deceased was not made out. Per contra, the prosecution submitted that the accused persons teased the wife of the deceased in the church and this was questioned by the deceased. Later, when the deceased and his wife came out of the church, the deceased was assaulted by the accused persons. Therefore, the prosecution contended that the intention on the part of the accused to cause murder could be clearly made out.

The High Court perused the record and was of the opinion that at the instant stage, it was too early to say whether there was any intention on part of the accused to cause murder; it was for the trial court to appreciate the evidence and come to a proper conclusion. Although the allegations against the petitioner were serious in nature, however, having regard to the fact that the charge was laid in his presence and his custody was no more required for further investigation, the Court held that the petitioner could be enlarged on bail by imposing stringent conditions. Orders were made accordingly. [Santhosh v. State of Karnataka, Crl. Petition No. 440 of 2018, order dated 9.3.2018]

Case BriefsSupreme Court

Supreme Court: Acknowledging the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), the bench of AK Goel and UU Lalit, JJ said that the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties. It was, hence, held that unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens.

The Court said:

“the Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions. … Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution.”

Background:

The Court was hearing an appeal against the order of the Bombay High Court where it was held that no public servant or reviewing authority need to apprehend any action by way of false or frivolous prosecution, but the penal provisions of the Atrocities Act could not be faulted merely because of possibility of abuse. In the present matter, certain adverse remarks were recorded under the Atrocities Act against the appellant who was serving as the Director of Technical Education in the State of Maharashtra at the relevant time. Apart from the facts of the present appeal, it was brought to the Court’s notice that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes.

Conclusion:

The Court held:

“an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly.”

Holding that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny, the Court issued the following directions:

  • there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
  • arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
  • to avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
  • any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.

[Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Sreenivas Harsih Kumar, J., decided a criminal petition filed under Section 439 of CrPC, wherein the petitioner was enlarged on bail holding that there was no prima facie material against the accused-petitioner.

The petitioner was accused of taking away the victim girl to his house and committing rape on her by giving her intoxicating drink. The complaint was made by mother of the victim in relation to the alleged incident and a criminal case was registered against the petitioner. He was arrested for the alleged crime. The petitioner filed the instant petition praying to be enlarged on bail.

The High Court perused the record and found that in her statement before the Magistrate under Section 164 CrPC, the victim girl had revealed about her love affair with the petitioner; however, nowhere did she mention anything about the committing of rape on her by the petitioner. The victim girl was about seventeen years of age at the time of alleged incident. Although, the mention of the alleged incident is found in her statement before the police under Section 161 CrPC, but nothing is said about it in her statement before the Magistrate. The Court was of the opinion that there was no prima facie material against the petitioner in relation to the alleged offence.

Hence, the petition was allowed and the petitioner was enlarged on bail, subject to the conditions imposed. [Jaheer v. State of Karnataka, Crl. Petition No. 10 of 2018, order dated 1.3.2018]

Case BriefsHigh Courts

Allahabad High Court: A miscellaneous bail application was decided by a Single Judge Bench comprising of Suneet Kumar, J., wherein the Court declined to enlarge the applicant on bail who was an accused under the Prevention of Corruption Act, 1988.

A case under Sections 386, 120B, 392 and 411 IPC along with Sections 7 and 8 of PC Act was registered against the applicant who was the Additional Road Transport Officer (Enforcement). Learned counsel for the applicant submitted that the applicant was falsely implicated in the case; he was not present at the scene of incident that was alleged in the FIR; the charge-sheet had already been filed; and thus the applicant may be enlarged on bail. On the other hand, the Additional Government Advocate along with the prosecution witness, opposed the bail application submitting that the applicant was an influential person and would interfere with the investigation in the case.

The High Court perused the record and found that the applicant was indeed an influential person having contacts in political and power circles. His assets were disproportionate to his income. He was involved with huge business concerns in eastern U.P. The Court was also of the view that he managed to influence the Investigating Officer and thus interfered with the investigation. Further, the prosecution witnesses stated that they were receiving threats by and on behalf of the applicant. The Court found that the conduct of the applicant was such that would jeopardize criminal administration of justice.

The Court was convinced that there was a serious threat to the prosecution witnesses; further, there was likelihood that the applicant may destroy the evidences, or was likely to commit more offences during the period of his release on bail. The Court was of the opinion that the applicant was not entitled to be enlarged on bail at the stage in interest of society; and the bail application was accordingly dismissed. [Radhey Shyam Yadav v. State of U.P., Criminal Misc. Bail Application No. 37688 of 2017, dated 01-12-2017]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sandeep Sharma, J., decided a criminal petition filed under Section 439 of CrPC seeking to enlarge the petitioner on bail, wherein the prayer as sought by the petitioner was granted.

The petitioner was accused in a criminal case registered under Sections 452, 307, 323, 324, 325, 107, 147, 148, 149, 504, 506, 201 and 120B of IPC. It was alleged that he along with other co-accused trespassed into the house of the complainant and attacked her son whereby he was grievously injured. The petitioner submitted that the complainant nowhere mention him in her first statement under Section 154 CrPC, and it was only after a gap of seven days that his name was added as an accused in the FIR. He submitted that he was falsely implicated in the case. He further submitted that there was no material on record against him; he prayed that he may be granted bail and he was ready to abide by conditions to be imposed by the Court.

The High Court perused the record and found that the prosecution material was not sufficient to prove a prima facie case against the petitioner. The delay of more than six days in adding his name as an accused was unexplained. There was nothing on record to suggest that if enlarged on bail, he may flee from justice. The Court observed that gravity of the offence alone is not a ground to deny bail; the normal rule is of bail and not jail; the objective of bail is preventive not punitive. The Court also referred to a Supreme Court decision in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, wherein as many as nine principles to be kept in mind while deciding a bail petition were discussed. Looking at the entirety of the case, the material on record, and the principles discussed; the Court was of the view that it was fit case to exercise judicial discretion in favor of the petitioner.

Accordingly, the petition was allowed and the petitioner was enlarged on bail subject to the conditions imposed. [Javed v. State of H.P., 2018 SCC OnLine HP 119, order dated 19.1.2018]

Case BriefsHigh Courts

High Court of Jharkhand: The Single Judge Bench comprising of Chandrashekhar, J., recently dealt with a bail petition wherein he held that if the prosecution has already examined a substantial number of witnesses, a comment on the worth of the witnesses will be improper.

The facts of the case are that the petitioner had been accused of committing offences under certain sections of the Penal Code, 1860 and hence, he applied for the granting of either anticipatory bail or bail since it had been granted to similarly situated persons. The counsel for the petitioner argued that since the co-accused had been granted bail, on the point of parity, the petitioner is also entitled to bail. he further contended that conviction on the basis of last seen together is a weak piece of evidence and hence, on that basis alone, the petitioner cannot be convicted. The prosecution side contended that the petitioner’s case was different from the co-accused since he was the sole person who was responsible for the kidnapping of the deceased consequent to which he was found dead. Witnesses have asserted the presence of the petitioner at the crime scene and he was the only one whose name was registered in the FIR.

Hence, the Court dismissed the petition and accordingly, no bail was granted to the petitioner. [Ramadhar Singh @ Ramadhar Sah v. State of Jharkhand, 2017 SCC OnLine Jhar 2669 , order dated 18.8.2017]

Case BriefsHigh Courts

Chhattisgarh High Court: In the order passed by Prashant Kumar Mishra, J., addressed a criminal petition filed on the basis of Paper Under Disposal (PUD) referred by the District & Sessions Judge Bilaspur, seeking guidelines on certain difficulties faced by the trial Judges on the presentation of forged sureties to obtain bail and release order on the basis of forged revenue papers or by impersonating the real surety. The Court modified its order that made Aadhaar card of the accused as well as surety mandatory before obtaining bail. Now the surety can submit any document of identification like voter ID, PAN, passport.

The brief facts being that the applicant stood surety in the Court of Special Judge by impersonating some other person to obtain a bail or release order, which happened to be true when investigated and verified by the Tahsildar concerned and subsequently the Court of Special Judge had lodged a report against the applicant for offences under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860.

The learned counsel gave their inputs on the above subject-matter that this has become a frequent practice, which needs to be nipped in the bud and to be controlled and regulated before it reaches enormous proportion and hence prayed to the Court to direct the trial courts to ensure obtaining papers of identification at the time of approving the surety documents for issuance of release warrants.

The Court referring to the Supreme Court judgment in Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47 added that the submission of Aadhar Card may not be made mandatory. Objection has also been raised to the condition where this Court has put a bar that, one surety cannot stand in more than two cases by introducing Section 441-A as introduced by Act No. 25 of 2005, w.e.f 23.06.2006 which the presiding officer shall strictly follow.

Further, the learned counsel who have suggested modification made a common pitch for immediate release of the accused after the submission of surety papers making the process of verification subsequent to the release within a particular time frame.

The Court held that the directions in substitution of the previous directions issued in paragraph 10 of the order dated 05.01.2018 passed in M.CrC No. 3957 of 2017 shall be followed and that after doing so the Presiding Officer shall certify in the order sheet of the case that the verification of the papers/documents has been done in accordance with the order passed by this Court. [Ved Prakash Gupta v. State of Chhattisgarh, 2018 SCC OnLine Chh 75, decided on 01-02-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sandeep Sharma, J., decided a criminal petition filed under Section 439 of CrPC, wherein it was held that gravity of the offence can not be the sole ground to deny bail to the accused, rather it has to be weighed with competing factors.

The petitioner was accused in a criminal case registered under Sections 366, 376 and 504 of IPC. It was alleged that the petitioner took the prosecutrix in her car against her will, threatened her to marry him, and committed sexual assault on her. The petitioner denied the allegations, and submitted that the prosecutrix went along with him of her own free will. It was also submitted that the petitioner was a student aged 24 years, and if he is allowed to be incarcerated in jail for indefinite period, it would prejudice his career and future.

The High Court after perusing the record, observed that the prosecutrix along with her cousin went in the car of the petitioner of her own will and prima facie material did not show that she was threatened by the petitioner as they also stopped at a certain place and had dinner where the prosecutrix had a chance to raise an alarm, which she chose not to. The Court referred to various decisions of the Supreme Court to discuss the law and principles regarding the grant of bail and reached the conclusion that gravity of offence has to be weighed against other factors like nature of evidence, severity of punishment, character of the accused and circumstances peculiar to the accused involved in the crime.

Basing its decision on the observations made in the facts and circumstances of the instant case, the High Court allowed the petition and enlarged him on bail, subject to conditions imposed. [Manoj Kumar v. State of H.P., 2018 SCC OnLine HP 118, order dated 19.1.2018]

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]

Case BriefsHigh Courts

High Court of Judicature at Madras: A Division Bench comprising of Rajiv Shakdher, J. and N. Sathish Kumar, J. addressed a petition filed under Article 226 of the Constitution of India wherein the petitioner seeked the setting aside of the detention order which confined him to the Central Prison and following the quashment, seeked the court to free the petitioner.

The counsel for the respondent had pointed out that no charge-sheet had been filed with regards to the crime that was allegedly committed by the petitioner. Thus the court decided to take up the main petition for hearing. The court perused the detention order of the petitioner and noticed that the petitioner had 2 cases registered against him. The Court also observed that the detenu had not filed any bail application in the second case till the date of passing of the impugned detention order. Although, the detaining officer took into account the fact that bail was granted to the petitioner for the other case, and hence, concluded that there stood a great possibility for the petitioner to be granted bail for the present case as well.

The Court held that the order couldn’t be sustained since despite the detenu having been arrested on 14/2/2017 and the order having been given on 2/5/2017 followed by a notice on 23/6/2017, no counter affidavit had been filed. No explanation had been provided for the enormous delay. Along with that, despite the order having been passed on the said date, the detenu had not applied for bail. The Court thought that the detaining officer’s reasoning was flawed as he thought that bail should be granted since the detenu was granted bail for the previous crime. [Kuppan @ Sathishkumar v. Secretary to Government, 2017 SCC OnLine Mad 11530, dated 15.12.2017]

Case BriefsSupreme Court

Supreme Court: The bench of RF Nariman and SK Kaul, JJ declared Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act is involved, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India.

The Conditions that the Court held to be unconstitutional are:

  • Public Prosecutor must be given an opportunity to oppose any application for release on bail;
  • The Court must be satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail.

Calling Section 45 of PMLA Act a drastic provision, the Bench said the provision

“turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime. Absent any such compelling State interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution.

Senior Advocate Mukul Rohatgi, appearing for the petitioners, argued before the Court that Clauses 43 and 44 of the 1999 Bill, which correspond to Sections 44 and 45 of the present Act, were very differently worded and dealt only with offences under the 2002 Act. He said that the twin conditions laid down as additional conditions for grant of bail were, at this stage, only qua offences under the 2002 Act. However, when Parliament enacted the 2002 Act, this scheme was completely changed in that Section 45 of the Act now spoke only of the predicate/scheduled offence and not the offence under the 2002 Act.

Attorney General AK Venugopal, on the other hand, argued that the twin conditions contained in Section 45 are only in furtherance of the object of unearthing black money and that the Court should, therefore, be very slow to set at liberty persons who are alleged offenders of the cancer of money laundering.

Taking note of the Para 18 of State of Uttar Pradesh v. Amarmani Tripathi, (2005) 8 SCC 21, that laid down the conditions for grant of bail, the Court held that it is obvious that the twin conditions set down in Section 45 are a much higher threshold bar than any of the conditions laid down in para 18 of the said judgment. In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45, whereas for grant of ordinary bail the presumption of innocence attaches, after which the various factors set out in paragraph 18 of the judgment are to be looked at.

The Court further noted:

“a classification based on sentence of imprisonment of more than three years of an offence contained in Part A of the Schedule, which is a predicate offence, would have no rational relation to the object of attaching and bringing back into the economy large amounts by way of proceeds of crime. When it comes to Section 45, it is clear that a classification based on sentencing qua a scheduled offence would have no rational relation with the grant of bail for the offence of money laundering and hence, the twin conditions need to be annulled on the basis of the equal protection clause.”

The Court, hence, directed that all the matters that were placed before it, in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail and considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. [Nikesh Tarachand Shah v. Union of India,  2017 SCC OnLine SC 1355, decided on 23.11.2017]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench comprising of Budihal R.B., J. rejected to grant bail to the petitioner in light of the investigation still pending in the case.

The petitioner was charged under Section 376(C) IPC along with Sections 6 and 8 of the POCSO Act, 2012. The petitioner was a head master of a government school and he was alleged to have physically molested as many as seven girl students. On the basis of the complaint filed by these victim girl students, a criminal case was registered against the petitioner for the offences punishable under the Sections as mentioned above.

Learned counsel for the petitioner contended that the acts mentioned in the complaint were alleged to be done three years prior to filing of the complaint. Also the petitioner was on the verge of retirement and he was falsely implicated in the case. He prayed that the petitioner may be granted bail. Learned High Court Government Pleader opposed the bail petition.

The High Court perused the record as well as the grounds urged in the bail petition. The Court found that as many as seven girl students gave statement against the petitioner to the police as well as before the JMFC under Section 164 CrPC. It was also found that the matter was still under investigation and the final investigation report was yet to be filed. The Court was of the opinion that this was not a fit case to exercise discretion in favor of the petitioner. Accordingly, the petition was dismissed without granting bail to the petitioner. [Shrinivasa Joshi v. State of Karnataka, Crl. Petition No. 8176 of 2017, order dated 10.11.2017]

Case BriefsHigh Courts

High Court of Himachal Pradesh: While deciding a bail application filed under Section 439 CrPC, a Single Judge Bench comprising of Chander Bhusan Barowalia, J. enlarged the petitioner on bail observing that it was a fit case where the judicial discretion to admit the petitioner to bail was required to be exercised in his favour.

The petitioner was charged under Section 376 IPC. He was accused of sexually assaulting the prosecutrix. It was alleged that the petitioner indulged in sexual intercourse with the prosecutrix on the pretext of marrying her. However, now the petitioner was denying to marry her and as such the prosecutrix filed the complaint which resulted in the criminal case being registered against the petitioner.

Learned counsel for the petitioner argued that he was innocent and he was neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He further argued that the prosecutrix was four years elder to the petitioner. The petitioner was just 19 years of age when the offence was alleged to have committed. As per the learned counsel for the petitioner, the only case was that the petitioner was seen by the prosecutrix chatting with another girl on Facebook and this was the reason that she lodged the FIR against the petitioner.

The High Court perused the whole record and the rival contentions of the parties and was of the view that the petitioner was in custody for over two years and he could not be kept behind the bars for an unlimited period before being adjudicated guilty. Therefore, keeping in view the material which came on record and without discussing the same at the instant stage, the Court found that it was a fit case where the judicial discretion to admit the petitioner on bail was required to be exercised in his favor. Accordingly, the application was allowed and the petitioner was granted bail, subject to the conditions imposed. [Ankush alias Shivam v. State of Himachal Pradesh, 2017 SCC OnLine HP 1596, order dated 7.11.2017]