Case BriefsHigh Courts

Bombay High Court: K.K. Sonawane, J., while reversing the judgment passed by Additional Sessions Judge, allowed pre-arrest bail applications of appellants filed under Section 438 CrPC.

The appellants were accused of assaulting the complainant and abusing him using filthy language while referring to his caste “Adiwasi”. An FIR was lodged and a criminal case was registered under Sections 324, 504, 506 read with Section 34 IPC and under Section 3 (1)(r)(s) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Apprehending arrest by Police, the appellants rushed to the court of Additional Sessions Judge for the relief of anticipatory bail under Section 438 CrPC. However, he rejected all the applications. This order was the subject matter of present appeals.

S.K. Chavan and R.J. Nirmal, Advocates representing the appellants submitted that they were students taking education in Agricultural College who had no concern with the alleged crime and were falsely implicated. Per contra, D.S. Jape, Assistant Public Prosecutor appearing for the State submitted that Section 18-A of SC/ST Act puts an embargo on the Court for exercising powers under Section 438 CrPC.

On perusing the FIR, the High Court was of the view that prima facie, ingredients of Section 3(1)(r)(s) did not match with factual score of the present case. Relying on its earlier decisions, the Court observed, “in spite of bar under Section 18 of the Act of 1989, for invocation of powers under Section 438 of the CrPC, it is still open to this Court to find out by looking to the FIR of the case itself is as to whether prima facie case is made out by the complainant against appellants.” Opining that incriminating circumstances to show that “intentional insult” or “intimidation with intent to humiliate” the complainant within public view on the part of appellants were lacking in this case, the High Court held it to be a fit case where anticipatory bail may be granted to them. Hence, the impugned order was quashed and the appeals were allowed. [Krishna v. State of Maharashtra, 2019 SCC OnLine Bom 341, decided on 27-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. declined to exercise jurisdiction under Section 482 CrPC to quash an FIR registered against the petitioner.

The petitioner was facing criminal prosecution under Section 135 of the Electricity Act, 2003. The petitioner who was represented by V.K. Sharma, Advocate sought quashing of FIR on the basis of payment of Rs 1,60,000 to the power distribution company. The prime contention was that the dispute being of civil liability, therefore the ruling of Supreme Court in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 would not apply.

The High Court reproduced the relevant portion of board principles governing the exercise of extraordinary power and jurisdiction of the Court under Section 482 CrPC as observed in Parbatbhai case. As far as the present case concerned, the Court observed that “Theft of electrical energy is menace which the society suffers at great cost to itself and to the State. It is a serious offence which affects the financial and economic well being of the State having implications which lie beyond the domain of a mere dispute between private disputants”. Opining that such offence cannot be termed to be private in nature, the Court held that exercising jurisdiction under Section 482, in this case, would be a misplaced sympathy. Consequently, the application was dismissed. [Mukesh Chand v. State (NCT of Delhi), 2018 SCC OnLine Del 13031, dated 10-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of P.N. Deshmukh and Swapna Joshi, JJ. partly allowed an application filed under Section 482 CrPC to quash and set aside FIR registered against the applications under Section 498-A read with Section 34 IPC.

Eleven applications, in this case, included the husband, father-in-law and other relatives of the husband of the non-applicant wife. She had alleged that she was harassed by the applicants in as much as she was abused by them. Specific allegations were levelled against the husband, father-in-law and two others that she was repeatedly asked by her husband to establish physical relations with the other three. The applicants contended that no offence was made out against them even if the allegations in FIR were accepted at face value.

On a bare perusal of FIR, the High Court noted that the wife had made serious allegations against her husband, father-in-law and two others. However, the FIR did not reveal any specific allegation against other relatives particularly her mother-in-law and sisters-in-law. Relying on the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Court held that continuation of proceedings against applicants except for the husband, father-in-law and two others would be an abuse of process of law. Therefore, the FIR in regard to such other relatives was directed to be quashed. [Chandrahas Jagatnarayan Choube v. State of Maharashtra,2018 SCC OnLine Bom 5574, decided on 30-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sureshwar Thakur, J. allowed a bail application owing to the vague and unclear FIR.

The petitioner has requested for the grant of anticipatory bail under Section 438 CrPC wherein he has been accused of offences punishable under Sections 376 and 506 IPC.

The prosecutrix has alleged forced sexual intercourse being subjected to her by the applicant. But what has to be taken into consideration was the date of the incident which was 2016 also she was unclear about the date and month of the act. Plus from the contents of the FIR, the whole narration of the incidence does not seem forced but rather vague and nebulous. The Court also considered the fact that she was married but didn’t disclose the matter to her husband which again acquires an aura of falsity.

Accordingly, due to the weak testimony of the prosecutrix along with the fact that the applicant showed the fullest cooperation in the investigation, the bail application stood allowed. [Madan Lal v. State of Himachal Pradesh,2018 SCC OnLine HP 1702, decided on 28-11-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. stayed the arrest of accused clergymen, while deferring the hearing of the special leave petition filed by Father Sony Varghese, Father of Malankara Church, who is one of the accused in the latest infamous Church sex scandal in Kerala.

The matter arises from the decision of the Kerala High Court which refused to grant anticipatory bail to the accused in a criminal case registered against them for sexually exploiting the survivor. The accused were booked under Sections 376, 354, 354A, 506(1) of IPC. The applicants before the High Court were clergymen of the Malankara Orthodox Syrian Church. The survivor was a married woman who made allegations of gross sexual impropriety against the applicants. It was alleged that Accused 1 sexually abused her since 1999 on the false pretext of marrying her, which continued even after marriage of the accused as well as the survivor. Further, allegations against Accused 2, Vicar of a nearby Church, were that he too sexually exploited the survivor on more than one occasion. The survivor had confessed about her relationship with Accused 1 before the Church and Accused 2 threatened her to oblige with sexual favours or he will tell everything to her husband. It was alleged that she was made comply with the exploitative sexual demands by the accused under threat.

The accused had filed an application under Section 438 CrPC before the High Court which was refused holding that considering the gravity of allegations and possibility of the accused influencing the witness and investigation, it was not a fit case to grant anticipatory bail. The High Court went on to observe that the accused acted like predators.

The Hon’ble Bench of the Supreme Court has directed the matter to be listed on 19-7-2018. [Sony Varghese v. State of Kerala, SLP (Crl.) No. 5686 of 2018, dated 17-07-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sandeep Sharma, J. allowed a petition filed under Section 438 CrPC holding that freedom of an individual cannot be curtailed for an indefinite period without there being a finding of guilt.

The petitioner was accused of having disproportionate assets for which an FIR was registered. The petitioner, who was  Managing Director of H.P. State Forest Development Corpn. Ltd. apprehended arrest in the case which was registered under Sections 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 read with Section 120-B IPC. He prayed for grant of anticipatory bail.

The High Court perused the record and noted that the bail petitioner had already joined the investigation and was fully cooperating; the guilt of the petitioner, if any, was yet to be proved. The Court relied on Dataram v. State of U.P.,(2018) 3 SCC 22 wherein it was held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. The Court reiterated that object of bail is to secure the attendance of the accused in the trial, an object of bail is neither punitive not preventive. Considering the facts noted above, the Court found it a fit case to exercise jurisdiction in favour of the petitioner. Accordingly, the petition was allowed and the petitioner was enlarged on anticipatory bail. [Chandra Shekhar Singh v. State of H.P.,  2018 SCC OnLine HP 857, dated 06-07-2018]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal petition filed under Section 438 of CrPC, a Single Judge Bench of Rathnakala, J. granted bail to the petitioner in view of the affidavit filed by the victim/complainant in which she stated that the petitioner has agreed to marry her.

The petitioner and his brother were arraigned as co-accused in the FIR in a criminal case for the offences punishable under Sections 376, 504, 506 read with Section 34 of IPC. The allegation was that the 1st accused persuaded the victim to consume alcohol and then in her intoxicated condition, forcibly had sexual intercourse with her and videographed the incident.

When the case was called, the complainant filed an affidavit which stated that considering her future she had come to certain terms with the accused and his family. The accused had agreed to marry her. Hence, she prayed that the accused be granted bail. Learned counsel for the petitioner identified that victim/complainant.

In view of the affidavit filed by the complainant, the Court held that there was no impediment to grant the bail to the petitioner and accordingly the petition was allowed and bail granted to the petitioner subject to the conditions imposed. The petitioner was directed not to threaten the complainant and her family. [Rahul Kumar v. State of Karnataka, 2017 SCC OnLine Kar 1809, decided on  August 16, 2017]

Case BriefsHigh Courts

Karnataka High Court: The High Court granted anticipatory bail to the Ex-Chief Minister of Karnataka, Sri H.D. Kumaraswamy (petitioner) in a criminal case registered for offences punishable under Sections 420, 465, 467, 468, 409, 201 read with Section 120 (B) of IPC, etc.

The petitioner was arrayed as the third respondent in the F.I.R. registered in connection to the above mentioned offences. The case related to the concocting of documents/permits as if issued by the Ministry of Environment and Forest, GOI to lift the iron ore mined between 1965 to 1985. The allegation against the petitioner was that he pressurized the second accused to issue permission to shift the said mineral, knowing fully well that no forest clearance certificate was taken by the first accused.

Learned counsel for the petitioner submitted that the same allegations were subject-matter of another criminal case in which he was already granted bail. While the Special Public Prosecutor submitted that during the relevant period, the petitioner was the Minister for Industries and Commerce under which the Department of Mines and Geology was functioning, thus he was directly involved in the subsequent offence.

The Court perused the submissions and the case diary and found that the alleged incident was ten years old; the financial transaction that took place was all available in the records, the subject matter of the present case was same as that of the case referred to above. The petitioner apprehended that if for any reason he is arrested, that will mar his further career. He also undertook to co-operate with the investigating officer.

In light of the above, the Court held that, there was no impediment to grant anticipatory bail to the petitioner. Accordingly, the petition was allowed and the petitioner was granted anticipatory bail subject to the conditions imposed. [Sri. H.D. Kumaraswamy v. State of Karnataka, 2017 SCC OnLine Kar 1806, dated August 10, 2017]

Case BriefsSupreme Court

Supreme Court: Dealing with a pivotal question as to whether the High Court while refusing to exercise inherent powers under Section 482 of the CrPC to interfere in an application for quashment of the investigation, can restrain the investigating agency not to arrest the accused persons during the course of investigation, the Court said that this kind of order is really inappropriate and unseemly and has no sanction in law.

Stating that such direction “amounts” to an order granting anticipatory bail under Section 438 CrPC, albeit without satisfaction of the conditions of the said provision, the bench of Dipak Misra and Amitava Roy, JJ said that the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed.

It was held that the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 CrPC, exercise judicial restraint. The Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation.  The Courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay. [State of Telangana v. Habib Abdullah Jeelani, 2017 SCC OnLine SC 23, decided on 06.01.2017]

 

Case BriefsHigh Courts

Bombay High Court: In a case pertaining to custodial death, where proclamations under Section 82 of CrPC, 1973 were issued by the investigating agency to the accused during the pendency of their applications seeking pre-arrest bail, the Bench of Sadhana S. Jadhav, J. held that the proclamation issued against the present applicants shall not be acted upon during the pendency of the hearing of these applications. The Court observed that in fact, when the applications under Section 438 of the Code of Criminal Procedure, 1973 are pending before any court of law, it cannot be said that the accused are absconding. It only means that the accused are evading arrest to take their applications under Section 438 CrPC to its logical end.

The Court observed that  “the deceased had died in the custody of the police. The guardians of law have committed a heinous offence which shocks the conscience of the society, which believes the police to be the guardian of their life and liberty.”

The counsel for the applicants submitted that the applicants had left the police chowki on completion of their duty hours after handing over the custody of the deceased to the A.P.I. They were unaware of the incident that happened subsequently. They assured to cooperate with the investigating agency to the best of their capacity. Initially, there were proclamations issued against present applicants and therefore, this Court had not granted ad-interim relief. However, after proper inquiry into all evidences, the Court opined that the applicants herein deserved ad-interim relief as they had undertaken to cooperate with the investigating agency to the best of their capacity. [Nitin Chandrrkant Kadam v.  State of Maharashtra, 2016 SCC OnLine Bom 9850, order dated 30.11.2016]