Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. allowed an appeal against an order of the lower courts whereby appellant’s bail application had been rejected.

In the instant case, one of the accused had received some money from his cousins and handed over the same to the appellants so as to pass on the same to the militants for continuing their militant activities. The accused were charged under the Unlawful Activities (Prevention) Act, 1967 (the Act). The appellants applied for bail in the Trial Court which was disallowed. Thereon, they preferred an application for grant of bail before the Court of learned Additional Sessions Judge, Srinagar, which too was dismissed holding, ” the very seriousness of the offence alleged is sufficient ground to reasonably believe that the accused may misuse his liberty by interference with the evidence that may be available in the case, if possible or by absconding if tempering is not possible.”

The learned counsel for the respondents, Javaid Iqbal, challenged the maintainability of this appeal while relying on Sections 21 and 22 of the National Investigation Agency Act, 2008 read with Section 43-D of the Act. Whereas, M. A. Qayoom, the learned counsel for the appellants, argued that both the sections should be read independently of each other. He further argued that the learned trial Judge and the Addl. Sessions Judge had not examined the matter in its proper perspective and had declined bail to the appellants on flimsy grounds. He contended that in the instant case the appellants completed 90 days in police custody without the ‘challan’ being filed against them, on that ground the appellants were entitled to bail after the expiry of period of 90 days relying on Section 167(2) of CrPC as the police had to complete the investigation within 90 days on failure of which appellants were entitled to bail. 

The Court relied on the judgment of the Apex Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, and held, “the learned Additional Sessions Judge was required to examine the contention raised on behalf of the appellants herein for grant of bail by applicability of the default clause of Section 43 (D) of the Unlawful Activities (Prevention) Act 1967 which he having not done.” The Court observed that, “Since the investigating agency has omitted to file final report in terms of Section 173 Cr PC within the time prescribed under Section 167(2) of CrPC, the appellants whose appeal is now treated as petition for bail are held entitled to default bail.” 

It was held that “the bar created under Section 43 of the Act would not come in the way of petitioner to seek enforcement of default bail, as their further detention is not permissible.” Thus, the Court admitted the bail of the appellants with the condition of furnishing security to the tune of Rs 50,000/- with one surety in the like amount and not to leave the State without Court’s permission. [Abdul Rehman Mir v. State of J&K, 2019 SCC OnLine J&K 420, decided on 08-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: N.S. Dhanik, J. contemplated a criminal application for quashing of the FIR filed against the applicant-husband by his wife for alleged cruelty and criminal intimidation under the relevant sections of IPC.

The respondent had filed an FIR against the applicant and his relatives for harassing and treating her with cruelty for an alleged dowry to an extent that the respondent had to leave her matrimonial house and reside somewhere else. On the impugned FIR the police conducted an investigation and thereafter filed a charge-sheet against the applicant. Applicant was duly summoned by the Magistrate. Charges against the applicant were under Sections 323, 498-A, 504, 506 IPC.

Vikas Kumar Guglani, learned counsel for the applicant submitted that it was a matrimonial dispute and was a private affair between the husband and wife but due to certain misunderstandings the FIR was registered, hence for the betterment of the institution of marriage the Court must quash the proceedings against the applicant.

The Court thus stated that it was settled law that the power under Section 482 CrPC should be exercised very sparingly and this power should not be exercised to stifle the legitimate trial and in cases where facts are hazy. Court doesn’t find reason to interfere in the proceedings against the applicant. However, it directed that if the accused-applicant surrendered him before the Magistrate concerned, his bail application was to be considered and decided as expeditiously as possible.[Ramesh Chandra Joshi v. State of Uttarakhand, 2019 SCC OnLine Utt 505, decided on 17-06-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. allowed anticipatory bail application of a person accused of posting obscene remarks on the Facebook page of a woman who was a member of a political party.

Applicant herein and a male member of CPI(M) party were part of a television debate on the correctness or otherwise of Supreme Court’s judgment on the right of women devotees of menstrual age to enter and worship in the Sabarimala Temple (Indian Young Lawyers Assn. v. Union of India, 2018 SCC OnLine SC 1690) wherein the member of CPI(M) strongly took a stand in favour of the said judgment. Being of the opinion that traditions must be followed and women must not be permitted to enter Sabarimala, applicant was agitated by the stand taken by CPI(M)’s member and he made certain posts on Facebook page of the said member’s wife [who is also a member of CPI-M, a media person and also an Assistant Professor of Law] describing her husband in highly abusive language and also made disparaging remarks regarding faith and religion. He also sent obscene messages to the lady with the intention to insult her womanhood and reputation and to cause her mental distress. The lady filed a case against him under Section 509 of the Penal Code, 1860, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act, 2011. Hence, the present application for pre-arrest bail.

Learned counsel appearing for the applicant, Mr. Siraj Karoly, submitted that offences under Section 509 IPC and Section 120(o) of the Kerala Police Act are bailable offences. Further, the nature of the factual allegations raised in FIR did not disclose an offence under Section 67 of IT Act. Whereas, the learned Public Prosecutor appearing on behalf of the State contended that the impugned publication on complainant’s Facebook page would be covered under Section 67 of IT Act.

The Court observed that even if the words are extremely unparliamentary, unprintable and abusive in nature, so long as the words in question are not one capable of arousing sexual thoughts in the minds of the hearers and does not involve lascivious elements arousing sexual thoughts or feelings or the words do not have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, it cannot be brought within the broad contours of the penal provisions as contained in Sections 294 and 292 of the Penal Code corresponding to Section 67 of the Information Technology Act, 2000.

The Court noted that presumably, the accused-applicant had made such comments as he was a Hindu and complainant’s husband was a Muslim. It also expressed lament at the increasing intolerance, for views/ opinions of other people, in the society and remarked that perhaps the same was a result of increasing addictive use of social media.

However, confining itself to the application at hand, it held that custodial interrogation of the applicant was not warranted in the facts and circumstances of the case, and thus granted anticipatory bail to the applicant.[Sreekumar V. v. State of Kerala, 2019 SCC OnLine Ker 1305, Order dated 03-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of N. Anil Kumar, J. allowed the bail application of a person accused of illegal possession of a psychotropic substance, on the ground that the quantity possessed by him was not ‘commercial quantity’ in terms of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Petitioner herein was accused of an offence under Section 22(b) of the NDPS Act. The prosecution allegation was that the petitioner was found in possession of 50 Nitrazepam tablets in contravention of the NDPS Act and Rules framed thereunder. He was arrested and produced before the Court on 12-03-2019 and had been in judicial custody since then.

Learned Public Prosecutor Mr D. Chandrasenan submitted that 50 Nitrazepam tablets, allegedly in possession of the petitioner, is not a commercial quantity as defined under the Act.

The Court noted that the commercial quantity of Nitrazepam, as prescribed under the table in NDPS Act at serial number 221 is 500 grams. There was nothing on record to show that the petitioner had any other criminal antecedents. Thus, it was opined that further detention of petitioner in judicial custody for investigation purpose was not required.

In view of the above, the petition was allowed, directing him to be released on bail on executing a bond of Rs 50,000.[Ashkar v. State of Kerala, 2019 SCC OnLine Ker 1406, Order dated 03-05-2019]

Case BriefsHigh Courts

Madras High Court: G.K. Ilanthiraiyan, J., allowed a criminal original petition filed by petitioner accused under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The petition was filed for a direction to the Principal District and Sessions Judge, Villupuram to consider petitioner’s bail petition on the same day of his surrender. The petitioner who wanted to surrender and apply for bail in connection with a criminal case registered under the SC/ST Act was represented by C. Prabakaran. While on the other hand, C. Raghavan, Government Advocate appeared for the State.

The High Court while allowing the petition, observed, “In view of the specific bar under Section 18 of SC/ST Act and also taking into consideration of the possibility of misusing the pious intention of the Parliament against innocent persons, there shall be a direction to the Principal District and Sessions Judge to consider the petitioner’s bail application, preferably on the same day of their surrender and pass appropriate orders in accordance with law after affording due opportunity to the victim under Section 15(a) of the SC/ST Act”. The petition was disposed of in the terms above. [Sethu v. State, 2019 SCC OnLine Mad 658, dated 04-03-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of S.A. Dharmadhikari, J. allowed the bail application of an accused whose two previous bail applications had been dismissed on merit.

The applicant was accused of committing offence under Sections 457 and 380 of the Penal Code, 1860. Two bail applications filed by him had been repeatedly dismissed on merits. It was argued by him that he had been kept in custody since May, 2018 but charges against him had not yet been framed and there was a huge delay in the trial. Applicant submitted that his co-accused had been released on bail and thus only he cannot be kept in jail for an indefinite period.

The respondent submitted that no case for grant of bail was made out because as many as twelve criminal cases were pending against the applicant. Applicant’s counter was that out of these twelve cases, he had been acquitted in eight cases whereas four cases were pending in trial.

The Court noted observed that prolonged pre-trial detention is an anathema to the concept of liberty and allowed the applicant to be released on bail subject to furnishing a personal bond of Rs 1 lakh.[Dharampal Pardi v. State of MP, 2019 SCC OnLine MP 34, Order dated 07-01-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Anuja Prabhudesai, JJ. dismissed a third bail application filed by a convict in a case for the offences under Section 302 read with Section 34 IPC.

Allegations against the applicant were that on the day of the incident, the deceased (waiter in the hotel concerned), was serving the applicant and his friends during which some water spilled on the table. A quarrel took place after which the waiter proceeded towards Police Station to lodge a complaint. It was alleged that the applicant took a bamboo stick from his car and inflicted a blow on the waiter’s head which resulted in his death. The applicant faced a trial, at the conclusion of which he was convicted as mentioned above. The applicant filed a bail application pending the appeal, however, it was dismissed. Having failed on two earlier occasions, the present third bail application was filed seeking suspension of sentence and release on bail.

Referring to State of Maharashtra v. Buddhikota Subha Rao, 1989 Supp 2 SCC 605 the High Court observed that there is an embargo on filing repeated bail applications on same facts to ensure some degree of finality to the order passed and to maintain judicial discipline and proprietary. It was noted that the present application was not filed on the ground of a change in circumstances. It was observed, ” the mere fact that some of the grounds which were available were not raised in the previous application or that the said grounds are not reflected in the previous order would not justify entertaining subsequent bail application.” In such view of the matter, the application was dismissed. [Ashok Pundalik Gavade v. State of Maharashtra, 2019 SCC OnLine Bom 155, dated 30-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Bench of Sanjay Kumar Gupta, J., disposed of a bail application against a juvenile on various grounds stated by the petitioner including the ground for furtherance of his son’s (accused) education.

The facts of the case are the accused was a juvenile at the time of commissioning of the offences. Despite that, he was arrested and was kept in the police lockup.

The petitioner filed a bail application before the Court of Chief Judicial Magistrate. It transferred the bail application of the applicant to the Juvenile Justice Board. The Juvenile Justice Board ordered the respondent to shift the juvenile to the place of safety (observation home). Juvenile Justice Board rejected the bail application filed by the petitioner.

The petitioner contended that the juvenile was preparing for Medical Entrance Examination and the Board instead of adopting reformative approach took resort to a strict view which has not only curtailed his freedom / personal liberty but also caused a great blow to the educational /professional career of the juvenile.

The respondents argued that that son of the petitioner was involved in heinous offence under Sections 354-B/376-D RPC and Section 6 J&K POCFSV and in this regard the FIR should stand registered. The case fell within the ambit of rarest of the rare case, therefore, there was a  rider and embargo for grant of bail to the son of the petitioner.

The Court disposed of the bail application by giving liberty to the petitioner to file a fresh application before the trial court where the challan against the son of the petitioner was pending. It also ordered that any observation made by the Juvenile Justice Board should not come in the way of the trial court in deciding the fresh application. [Vinayak Sharma v. State of J&K, 2018 SCC OnLine J&K 1045, Order dated 24-12-2018]

Case BriefsSupreme Court

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

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

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

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

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

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

Case BriefsHigh Courts

Hyderabad High Court: The Single Judge Bench of the High Court refused to grant bail to the primary accused in the shocking murder case of the Mayor of Chittoor, Smt. Katari Anuradha and her husband Katari Mohan.

Out of the 23 accused in the case, the primary accused is the nephew of the deceased couple. This increased the air of gravity associated with the case. Both the accused and the deceased couple held political clout in the region. The accused was tired of holding a secondary position to the deceased. That along with many other rifts caused the accused to commit the murders. The group entered the Mayor’s Chambers in burqas and opened fire on the Mayor. Eyewitnesses intervened and one of them was severely injured. The other deceased fled the scene but was chased down and shot. The injured were taken to the hospital where the other deceased succumbed to his injuries.

The petitioners have staunchly denied the offence and their previous bail application too was rejected. The counsel for the petitioners claimed that the petitioner has been implicated in the crime by his political rivals. There was a delay in filing the FIR which indicated that the petitioner was roped in at a later stage. He negated the statement of the eyewitnesses stating that it made no sense for the petitioner to mask his identity and reveal it by removing his burqa immediately before firing the fatal shot. He also claimed that the petitioner was a law abiding citizen who had surrendered himself and was in custody for the last nineteen months without being proven guilty.

The Public Prosecutor opposed all these contentions. He stated that the gravity and the brutality of the murder were such that the accused deserved no leniency. It was a daylight murder committed before multiple eye-witnesses which showed the brazenness of the accused. The fact that the accused has the nephew of the deceased only added to the gravity of the crime. The Prosecutor further stated that the accused was already involved in multiple criminal cases and committed this crime while on bail. This shows that there is a chance of him committing some other offences while on bail. There was a scope of witness tampering and misuse of political clout if bail was granted.

The Bench of Durga Prasad Rao, J. accepted the contentions of the Public Prosecutor, relying on the parameters laid down in Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406) : (a) severity or gravity of offence; (b) prima facie accusation against the offender; (c) severity of punishment in the event of conviction; (d) chances of accused absconding if granted bail; (e) the propensity of accused repeating the crimes; and (f) reasonable apprehension of the accused influencing the witness and thwart the course of justice.

Accepting these parameters, bail was denied to the petitioner-accused. [Sriram Chandra Sekhar v. State of Andhra Pradesh, 2017 SCC OnLine Hyd 214, decided on 03.07.2017]