Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of A. Hariprasad and A.Anil Kumar, JJ., released the appellant as no intention to commit murder was established and he had already undergone more detention than imposed by the law.

The prosecution alleges that the deceased and the accused-appellant used to sleep in the veranda or close shop rooms and in bus waiting sheds. It is pertinent to note that both were in the habit of drinking. The appellant had enmity towards the deceased and physically assaulted him by kicking and hitting on vital body parts with an intention to commit murder. The deceased was taken to the hospital where he was declared dead on arrival.

Renjith B. Marar, counsel representing the appellant, argued that the name of the deceased was noted at the hospital. Due to a botched up investigation, the chance of someone else assaulting the deceased with a mistaken identity cannot be ruled out. There is no case that the accused had any weapon which could have been used for causing injuries mentioned in the post-mortem report. He further argued that even if the prosecution case is accepted, the offence under Section 300 of the Penal Code, 1860 is not made out. The counsel submitted that the opposite counsel failed to prove mens rea on the part of the appellant that caused the death of the deceased. 

Alex H. Thombra, counsel for the respondent, argued that on the evening previous to the incident due to a scuffle between the accused and the deceased; the accused was made to apologise to the victim and thus he developed hostility towards him. PW1 confirmed witnessing the accused assaulting the deceased.

The High Court upon perusal of the facts and circumstances of the case held that the appellant and the deceased were known to each other prior to the incident, the appellant was aware of the deceased’s weak physical conditions. Thus the Court held that the appellant had knowledge that by incessantly assaulting the deceased it will likely cause his death and there is the absence of intention to commit murder, thus the appellant has committed an offence under Section 299, Penal Code, 1860 and is liable under Section 304 of the Penal Code, 1860. The Court sentenced him to 7 years of rigorous imprisonment and on finding that he has been undergoing detention for about 10 years directed that authorities release him. [Jomon Kava v. State of Kerala, CRL.A.No. 1276 of 2016 decided on 31-10-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J., allowed a bail application subject to stringent conditions in child sexual harassment case on the ground that no prima facie offence was made out and the accused already suffered detention for 40 days. 

The prosecution had alleged that the victim aged 13 years was given a lift on a scooter by the petitioner, and the petitioner took the victim to an isolated house and pressed his chest and then kissed his lips, etc. 

Counsel for petitioner, T.K. Vipindas, contended that the allegations are false and fabricated. He also argued that the facts in the FIS do not fulfill the ingredients of Section 377 of the Penal Code, 1860. No allegations were made that the petitioner indulged in anal penetration or any assault using the genital organ. Thus the offence under Section 377 is not made out in the present case. The petitioner further contended that even admitting the allegations, petitioner committed a non-penetrative assault under Section 7 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 punishable under Section 8 of the POCSO Act. The fact that the petitioner had already suffered detention for 40 days, further detention was not justified and proper, thus considering the nature of allegation the court may release him on bail subject to any strict conditions. 

Public Prosecutor, T.R. Renjith contended that if the petitioner was released on bail there is every possibility that of the petitioner intimidating and influencing the witnesses, victim and his family members. 

The Court after considering the allegations and the fact that the petitioner had already suffered detention for 40 days, was let out on bail, on his executing bond for Rs 40,000 and furnishing two solvent sureties, subject to stringent conditions. The court imposed the following conditions – petitioner has to report to the investigation officer on 2nd and 4th Saturday for three months, he shall not visit victim’s residence or the educational institution of the minor victim, he shall not enter the territorial limits of the police station, where the victim resides. In case of a genuine emergency, the petitioner is allowed to visit the said area after taking permission from the IO. In case of violation of any of the conditions, the court may consider the bail as cancelled. [Rajeevan v. State of Kerala, 2019 SCC OnLine Ker 3993, decided on 06-11-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed the application filed by the petitioner to free him from detention.

The petitioner filed a Habeas Corpus petition against the order of detention, passed by the Respondent 2 who is the District Magistrate Baramulla, in exercise of powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (“The Act of 1978”). It was submitted that the detaining authority had failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his release on bail in substantive offences. It was also submitted that such order was passed on the dictates of the sponsoring agency, i.e. the Officer who had prepared the police dossier and no attempt had been made by the Respondent 2 to scan and evaluate it before issuance of the order of detention. 

The Respondents submitted that the detaining authority had complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue did not file any representation against the order of detention. The detenue was involved in two different cases for the commission of offences punishable under the ULA(P) Act and the Ranbir Penal Code (RPC). 

The Court emphasized the issues that since the detenue was released on bail in the FIRs that formed the baseline of the order of the detention, therefore, an order of detention could have been passed under such circumstances or not. The Court relied on the law laid down by the Supreme Court in paragraph No. 24 of the judgment delivered in the case of Sama Aruna v. State of Telangana, AIR 2017 SC 2662”:

“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: 

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 

The Court held that the detenue could not have been detained after taking recourse to the provisions of “The Act of 1974” when he was already on bail. While discussing the duty of the State to follow the law of the land so as to safeguard the rights of the citizens the Court exclaimed that:

The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the orders of bail so granted by the competent Court(s). This single infraction knocked the bottom out of the contention raised by the State that the detenue can be detained preventatively when he was released on bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 08. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law.”

In view of the above-noted facts, the instant petition was allowed and the impugned order of detention of the petitioner stood to be quashed. [Shabir Ahmad Mir v. State of J&K, 2019 SCC OnLine J&K 882, decided on 05-11-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. made absolute the interim application for bail in a matrimonial case.

An application for anticipatory bail was made by the petitioner for the offence registered under Sections 323, 325, 326, 406, 506, 498-A, 34 of the Penal Code.

The facts of the case were that FIR was registered at the instance of the petitioner’s wife wherein it was alleged that she was married to the petitioner and had a child from the wedlock. The petitioner and his family used to harass and beat her for no reason. It was also submitted that in-laws of the petitioner had retained all her jewellery articles.

Gautam Dutt, counsel for the petitioner submitted that though there was some matrimonial discord between the parties the complainant herself caused injuries to the petitioner. It was further submitted that complainant is all out to wreak vengeance and went to the extent of leveling allegations of rape against the petitioner’s father which upon inquiry by police were found to be false.

Aditi Girdhar, counsel for the state submitted that one of the injuries found on the person of the complainant has been opined to be grievous injury attracting an offence punishable under Section 325 IPC and that in these circumstances since the allegations stand substantiated, no case for grant of anticipatory bail was made out. It was informed that the alleged jewellery articles, as well as car, were recovered.

The court opined that as the petitioner had already joined the investigation and had got the articles of the dowry and thus petition was accepted and the interim directions by the court were made absolute subject to the condition that petitioner would appear before investigating officer and when called upon to do so and cooperate with the investigating officer.[Nitin Yadav v. State of Haryana, 2019 SCC OnLine P&H 1480, decided on 19-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Manoj Bajaj, J., allowed a regular bail application on the ground that the co-accused was also on bail. 

A bail application was made for the grant of regular bail where the offence under Sections 420, 406 and 120-B of the Penal Code, 1860 were registered. 

The brief facts of the case were that the complaint was made herein it was alleged that the complainant was taking a round of the sugar mill when he saw the driver of the tractor-trolley was reversing from the weighing bridge. When inquired regarding the weight, the driver told that the empty trolley was not being weighed on the said machine but the receipt when checked; it was found that he was lying and the receipt was false. The matter was inquired and it was disclosed that he along with Ajay Kumar who was working in the Sugar Mill and some other persons were involved in causing wrongful loss to the Sugar Mill for their gain.

Mukesh Singh, brother of the petitioner submitted that the co-accused, namely Ajay Kumar Sharma, already stands released on regular bail by this Court. It was further revealed that had suffered a confessional statement before the police wherein it was mentioned that he was allegedly involved in five such weighments of the vehicles and a sum of Rs 10,000 came to his share. Thus a prayer that the petitioner be released on regular bail was made.

The court opined that the “investigation qua the petitioner is complete and the trial is likely to consume some time, further detention of the petitioner may not be justified” Thus the petitioner was released on bail subject to furnishing requisite bail bonds and surety bonds to the satisfaction of the trial court. [Ankit Sharma v. State of Haryana, 2019 SCC OnLine P&H 1369, decided on 06-08-2019]

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

Madhya Pradesh High Court: Anand Pathak, J. directed release of the applicant on bail with sureties in the instant application filed under Section 439 of CrPC. 

V.K. Saxena, counsel for the applicant submitted that it was the second application on behalf of the applicant, where it was requested to release him on bail, as the applicant was in the custody since 3 months. The contention narrated by the counsel was, that an FIR was lodged against the applicant for offence under Sections 27, 29, 50 of the Wildlife (Protection) Act, 1972, the charges were for the entry in a restricted area of Sanctuary and causing destruction. It was further stated by the counsel that the applicant was only the driver of the vehicle which was seized by the police officers and neither the owner nor his accomplices were arrested for the said offences. It was pleaded by the petitioner that due to his detention in the judicial custody, his family was facing financial distress;  he further submitted that any other stringent conditions may be imposed over him but his confinement was not justified on the part of his family. 

Learned counsel for the respondent-State opposed the prayer and prayed for dismissal of the application because the offence had been committed against the motherland.

The Court considered the tender age of the applicant and observed that he had no criminal antecedents and granted bail to the applicant with conditions and sureties. [Vivek v. State of M.P., 2019 SCC OnLine MP 1069, decided on 30-04-2019]

Hot Off The PressNews

As reported by media, the Swedish Court has denied a request to detain him.

The Uppsala Court has stated that Julian Assange should not be extradited to Sweden for the purpose of investigation in the sexual assault case of 2010. But he can be questioned for the same while he is in Britain.

The investigation dates back in 2010, when Assange was accused of sexual molestation, coercion and rape. At the time, Assange denied the accusations but refused to be questioned in Sweden, fearing that Sweden would then extradite him to the US to face conspiracy charges.
Assange fled to Britain soon after and was granted political asylum by the Embassy of Ecuador, where he had lived until April 2019.
The misconduct and coercion cases were dropped in 2015 when the statute of limitations expired. The investigation into the alleged rape does not expire until August 2020, but was closed in 2017 after an assessment that Assange could not be extradited to Sweden for the foreseeable future.
In April 2019, Assange lost diplomatic immunity and was arrested by UK authorities, making it possible for Sweden to resume the investigation.
He was sentenced to 50 weeks in UK jail on May 1 for breaching his bail by entering the Ecuadorian embassy in London seven years ago.
The UK is also currently pursuing an extradition request made by the US, in relation to Wikileak’s release of a number of military and diplomatic documents.”


[Source: CNN]

Picture Credits: CNN

Hot Off The PressNews

Supreme Court: Expressing displeasure over the absence of Assam Chief Secretary Alok Kumar during a hearing on the plea seeking humane treatment to immigrants at detention centres, the  Court has asked the state government if “a non-bailable
warrant” should be issued against him.

“There is a reason why we wanted the Chief Secretary to be present. But he is not here. Should we issue a non-bailable warrant against him,”

The bench also observed that the state is dragging its feet in pursuing identification of migrants. After the conclusion of arguments, the CJI headed bench posted the matter for hearing on April 8, and directed Chief Secretary Kumar to be present in the court. Even during an earlier hearing, the Court had pulled up the Centre and Assam government over the deportation of illegal migrants from the state.

“It has become a joke and you haven’t done anything,”

The Court had also slammed Assam government for its laxity in acting against illegal migrants. Reprimanding the state government for inadequate functioning of foreigners’ tribunals, the bench had asked:

“What the state has done to tackle this serious problem.”

The Court was hearing a petition filed by social activist Harsh Mander, seeking the Court’s direction for humane treatment to immigrants held in detention centres in the state. It also submitted that the immigrants should be treated as refugees, pending their repatriation.

The matter will next be taken up on April 8.

(Source: ANI)


Also read:

SC asks Centre to provide details on Detention centres and Foreigners detained in Assam

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]

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi, CJ and Sanjiv Khanna, JJ has directed the Centre to provide the details of the functional detention centres in Assam and the foreigners detained there during the last 10 years. The Court has also asked the authorities to apprise it of the year-wise details as to how many illegal immigrants, after being declared so by the Foreigners Tribunal functioning in Assam, were deported to their native countries in the last decade.

The said order of the Court came in a PIL filed by activist Harsh Mander through advocate Prashant Bhushan on the plight of foreigners in detention centres wherein it has been alleged that foreigners are kept in detention indefinitely just because they are not Indians and are treated as “illegal aliens”. Advocate Prashant Bhushan argued that these persons were facing prolonged detention, adding that they should be treated as refugees and released from the detention centres after imposing certain conditions.

The Court said that foreigners can not be kept in detention centres after being declared as illegal immigrants by tribunals if the Centre had not been able to arrive at a settlement with the countries where they were to be deported. It said:

“You can ask the neighbouring countries to accept their natives, but you cannot keep them in detention centres for all the times.”

The matter will now be taken up on 19.02.2019.

(Source: PTI)

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench comprising of S.H. Vora, J., allowed a petition against the detention orders passed under Gujarat Prevention of Anti Social Activities Act, 1985.

The petition was directed against order of detention passed by the respondent in exercise of powers conferred under Section 3(2) of the said Act by detaining the petitioner under Section 2 (c) of the same due to registration of offences under Sections 454, 457, 380 and 114 IPC that led to breach of public order.

The petitioner agreed that though it may be a breach of law and order but it failed to have any nexus with maintenance of public order as except statement of witnesses, registration of FIR/s and panchnama, there existed no other corroborating material on record which have had affected even the tempo of the society causing threat to the very existence of normal and routine life of people at large.

Referring to Pushker Mukherjee v. State of W.B., 1969 1 SCC 10, the Court concluded that every act of assault or injury to specific persons does not lead to public disorder and hence subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law plus no other relevant penal provisions existed for invoking power under Section 3(2) of the Act. Accordingly, the Court passed release orders for the petitioner. [Vijay Rasikbhai Karsanbhai Thakor v. State of Gujarat,2017 SCC OnLine Guj 2229, order dated 06-09-2017]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud JJ., allowed an appeal by setting aside the order of the Manipur High Court.

The present matter dealt with the essence of Section 3(4) of the National Security Act, 1980, specifically the meaning of ‘forthwith’ in the said provision.

The appellant challenged the order of preventive detention as the detaining authority violated the provision of Section 3(4) of the NSA, 1980. He contended that the District Magistrate had failed to report the State Government ‘forthwith’ his report of detention under the said provision of NSA, 1980, as the district magistrate reported it to the government after a lapse of 5 days.

Therefore, on careful consideration of the facts and circumstances of the case, the Supreme Court found that the report to the state government was sent after 5 days for which no reason was stated causing the order to be vitiated. Supreme Court relied on the case S.K. Salim v State of West Bengal, (1975) 1 SCC 653 for emphasising the interpretation of laws of preventive detention along with the point that the report to be sent under Section 3(4) should not carry any laxity with it in reporting to the Government. The appeal was allowed in the present case for the above-said reasons and the order of the High Court of Manipur was dismissed. [Hetchin Haokip v. State of Manipur,2018 SCC OnLine SC 713, dated 20-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of SC Dharmadhikari and Bharati H. Dangre, JJ issued a writ of habeas corpus ordering the release of the petitioner’s son, who had been illegally detained in unlawful continued judicial custody for more than sixty days. The detenu had been arrested by the Central Bureau of Investigation, Economic Offences Wing on 19-09-2017.

Following multiple remand applications requesting extension of custody of the detenu, the total detention period exceeded the maximum limit of sixty days on 23-11-2017. Under Section 167(2) of the Code of Criminal Procedure, a Judicial Magistrate is entitled to authorize a detention not exceeding 60 days for all offences, unless the offence is punishable with death, imprisonment for life or imprisonment for a period of at least ten years.

Though the prosecution contended that the charges framed against the detenu during the course of investigation involved offences that were punishable with death, with life imprisonment or with imprisonment for at least ten years, the Court held the detention beyond the period of 60 days to be in contravention of S. 167(2) CrPC and also violative of the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. [Rajkumar Bhagchand Jain v. Union of India,  2017 SCC OnLine Bom 9435, order dated 08-12-2017]

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 BriefsHigh Courts

Allahabad High Court: The Division Bench comprising of Ajai Lamba and Ravindra Nath Mishra-II, JJ held that the  practice of taking witness in custody for recording statement under Section 164 CrPC is not contemplated under the Code of Criminal Procedure or any other law. The respondents were therefore held liable to pay a sum of 1,50,000 so as to compensate the petitioner for illegally confining her for the purpose of investigation.

In the present case, father of the Petitioner filed a Police Complaint under Section 363 and 366 of Penal Code stating that his daughter has been kidnapped by her boyfriend (Chhote Lal), though the same was being denied by the Petitioner (Seema Devi) and confession made by her that she married Chhote Lal willingly. It was alleged that the police took the petitioner Seema Devi and her husband Chhote Lal in custody/detention from their residence whereupon Chhote Lal was released from custody, however, detention of Seema Devi was maintained . Thus, the petitioner filed a writ of habeas corpus through her husband for her release from wrongful and illegal detention/confinement.

Hence, the Court ruled out that right to liberty of the petitioner has been violated by keeping her in confinement for 15 days and directed the Station House Officer and the Investigating officer to pay a sum of 1,50,000 to the petitioner as compensation. The bench directed the authorities not to confine witnesses for the purpose of investigation of a crime and added “confining is when a person is enclosed within bounds; limit or restrict; to prevent from leaving a place. Even if the movement of a person is limited or restricted to his own house, it would tantamount to his/her confinement”. [Smt. Seema Devi v. State of Uttar Pradesh; Habeas Corpus No. – 10006 of 2016; decided on 25.05.2016].

High Courts

Kerala High Court: While dealing with a case where a person was wrongfully arrested by the police officials on ground of suspicion that he was a Maoist, a bench of A.M. Mustaque J, held that being a Maoist is no crime, and that police cannot detain a person on mere ground of suspicion that he is a Maoist, unless there is reasonable opinion that the activities of the person are unlawful.

 

In the present case, the Counsel for the petitioner P.S. Nair, contended that the arrest of petitioner on mere suspicion that he was a Maoist resulted into violation of right to liberty as enshrined in the Constitution, and that the arrest was made without following the procedure established by law. The Counsel for the respondent Sri Asaf Ali, contended that the petitioner was taken into custody by the police personnel in order to protect him from the group of agitated people assembled in the area.

The Court referred various case laws and also discussed Section 41 of Chapter V of CrPC to establish the essential elements and procedure established by law to constitute a legal arrest; flouting of which would result in deprivation of liberty. The Court also relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 where it was held that “arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. Therefore, it would be prudent for the police officer that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafide of the complaint”.

The Court observed that in the instant case, the petitioner was arrested as a suspected Maoist, was stripped by the police for body search, was interrogated and his movables were taken into custody, his house was also searched, without a clue about the commission of any offence by the petitioner. The Court noted that though the political ideology of Maoist does not synchronize with our constitutional polity, being a Maoist is no crime. The Court further noted that the private activities become unlawful only when the private thoughts or ideas become repugnant to the public values as envisaged under the law. The Court concluded that the police violated liberty of the petitioner by taking him to custody without satisfaction that he has been involved in any cognizable offence punishable under law, and that the State stridently defended the police action as part of duty to combat Maoist. Accordingly, the Court directed the State to compensate the petitioner as it is a case where the State moved to nab the Maoist like a predator vying for prey, which is nothing but disgusted aberration of law in the cloth of uniform and the protector has become aggressor. The Court further stated that the individual officers need not be mulcted with any liability as their action stems from the failure to create a balance between executive duty to secure liberty and of the law enforcement agencies to take action in a crime. Shyam Balakrishnan v. State of Kerala, 2015 SCC OnLine Ker 7591, decided on 22.05.2015