In a recent order, the Supreme Court of India questioned the manner in which an Allahabad High Court judge dismissed roughly 45 requests for anticipatory relief, all in the same fashion, for non-prosecution on a single day.

In order to ask the concerned High Court Judge as to why he has been acting in such an odd way, Justices Ajay Rastogi and CT Ravikumar of the Division Bench have demanded a report from the High Court Registrar in this regard.

“We are not supposed to comment at this stage but direct the Registrar of the High Court of Allahabad to submit the report to this Court after obtaining from the concerned Judge (Krishan Pahal,J.) as to what prevailed upon him in passing the orders..” the Supreme Court bench ordered.

Additionally, the bench also stated, “…consistently almost in 45 matters at a given point of time on the same date dismissing them in the same fashion for non-prosecution, that too when one has approached the Court for protecting his liberty which is sacrosanct under Article 21 of the Constitution.”

The Bench was considering a Special Leave Petition that contested the High Court’s judgment that declined the petitioner’s motion for anticipatory release for non-prosecution on September 29, 2022. The High Court Judge’s string of “stereo typed orders,” which denied the petitioner’s motion for non-prosecution on September 29, 2022, were detailed in the Supreme Court by the petitioner’s counsel.

The petitioner’s counsel had previously informed the court of a series of “stereo typical decisions” made by the High Court Judge that similarly dismissed pre-arrest bail applications.

The Bench criticized the High Court Judge’s actions, saying,“This kind of approach in passing orders is not acceptable by this Court at any cost.”

The Bench then went on to issue notice on the case. Before releasing the order, the Court additionally suspended the petitioner’s detention in light of the temporary injunction issued by the High Court on July 2. The petitioner was the subject of a FIR for offences listed in Sections 420, 406, 504, 506, 307, and 323 of the Indian Penal Code, all of which are punishable by fine or imprisonment.

The matter will be heard again on November 25.

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On June 7, 2022, Ahmedabad’s Sessions Court rejected the anticipatory bail application filed by Filmmaker Avinash Das under Section 438 CrPC (Code of Criminal Procedure, 1973) in a case registered against him for sharing a picture of Union Home Minister Amit Shah with the recently arrested Jharkhand cadre IAS officer Pooja Singhal who was arrested by the enforcement Directorate (ED) in connection with a money laundering case.  He has also been booked for sharing a picture of a woman (who appears to be nude) wearing a tricolor.

According to the Court, posting a picture of woman wearing the national flag shows the “mental perverseness” of the filmmaker and by doing this he had insulted the Indian culture as well as evoked a feeling of hatred amongst the people of the country.

The Court is of the opinion that uploading pictures clearly suggest the “mens rea” of the applicant-accused and therefore held that a picture of the Home Minister of India with I.A.S Puja Singhal was uploaded by Das only with a view to defame the Minister. The photograph when the two were together was of the year, 2017.

The Court held that the applicant-accused uploaded the outdated picture with a view to tarnish the image of the Minister as he shared the picture despite having the knowledge that it was outdated. However, what the court failed to take note of is that the caption of the photo reportedly mentioned that the photo was taken before the IAS officer’s arrest as confirmed by the Ahmedabad Crime Branch officials.

In its order dated June 7, 2022, the court stated, “It is important to note that the present applicant-accused knows the law better than the common man and as per the application, it appears that he is a film-maker, so it is his prime duty to maintain dignity of the country and to give respect to national flag as well as Hon’ble Home Minister of India but he has willfully uploaded the same on social media.”

Equating the mere act of uploading a picture of a minister with an accused in the money laundering case with that of cyber crime, the court held, “If the applicant-accused is granted anticipatory bail then, it will accelerate the Cybercrimes in the nation and will encourage to such persons to involve in such type of offence of insulting national honour as well as insult to the country’s national symbols, including national flag as well as impair the image of Union Home Minister of India. “

On May 14, 2022, the Ahmedabad Police booked filmmaker Avinash Das allegedly for sharing a picture of Union Home Minister Amit Shah with the recently arrested Jharkhand cadre IAS officer Pooja Singhal. Singhal was arrested by the Enforcement Directorate (ED) in connection with a money laundering case. 

Das is a critically acclaimed filmmaker who made “Anaarkali of Aarah”. Now he has been booked under under IPC Section 469 IPC (Forgery for purpose of harming reputation), Section 2 of the Prevention of Insults to National Honour Act and Section 67 of Information Technology Act.

The Enforcement Directorate had arrested IAS officer Pooja Singhal on charges of money laundering. The videos of cash seized from her house by officials had also gone viral on social media.

A copy of the order may be read here: 

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The Kerala High Court has granted anticipatory bail to all accused persons/petitioners- former Gujarat Director General of Police RB Sreekumar, two former Kerala Police officers S. Vijayan and Thampi S. Durga, and a retired IB official PS Jayaprakash in the ISRO spy case.

The CBI has been investigating an alleged conspiracy to implicate former ISRO scientist Nambi Narayanan in the 1994 espionage case. Back in 1994, allegations of transfer of certain confidential documents on India’s space programme to foreign countries by two scientists and four others, including two Maldivian women, surfaced in the media. Nambi Narayanan, the then director of the cryogenic project at ISRO, was arrested along with the then ISRO Deputy Director D Sasikumaran by the Kerala Police.

The former scientist, who was eventually given a clean chit by the CBI, had alleged that the Kerala police had “fabricated” the case and falsely accused him. Naryanan reportedly accused the former DGP, Gujarat, of torturing him and falsifying records to implicate him. The CBI had named him in its FIR and charged Sreekumar, along with several other officials

The Kerala High Court, through its August 13 order, has ruled that there is not even a “scintilla of evidence regarding the petitioners being influenced by any foreign power so as to induce them to hatch a conspiracy to falsely implicate the Scientists of the ISRO with the intention to stall the activities of the ISRO with regard to the development of Cryogenic Engine”.

Justice Ashok Menon observed that unless there are specific materials regarding their involvement, prima facie, it cannot be said that they were acting against the interest of the country. He said that the concerns of the Kerala Police at that stage cannot be said to be without any basis but ultimately it was found that “there is nothing in the accusation made against the offices and the investigation was dropped. The accused in the present crime should not be made to face a similar situation of being forced to undergo the ignominy of being incarcerated in the prison for interrogation at this old age after their retirement for an incident that took place a quarter of a century ago.”

The Bench further noted that there was no indication or material, apart from the rhetoric that a foreign power has a hand in persuading the petitioners. Therefore, it was ruled that the petitioners were entitled to the remedy of anticipatory bail. Justice Menon also said that the investigation was triggered by the apprehension of the Maldivian ladies who were overstaying their Visa.

The court also noted that during the investigation, the officers in the lower rank (such as some of the petitioners) found certain suspicious circumstances, as a result of which, they registered the crime and reported the matter to the higher authorities. Therefore, the Court accepted that the concerns of the petitioners/Kerala Police at that stage cannot be said to be “without any basis.”

The order may be read here:

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The Allahabad High Court has granted Anticipatory Bail to the accused Adil till the conclusion of his trial. “Applicants’ prayer can be considered for grant of anticipatory bail till the conclusion of trial”, noted the court.

The Single-judge Bench of Justice Siddharth was hearing an anticipatory bail application filed by Adil (applicant), a law student at Aligarh Muslim University (AMU), booked under section 307 (attempt to murder) and 504 (intentional insult to provoke and breach public peace) of the Indian Penal Code at Police Station Civil Lines, Aligarh.

The applicant’s counsel, Senior Advocate Nazrul Islam Jafri argued that he should be given the relief of anticipatory bail like he was granted earlier till the submission of police report (chargesheet) under Section 173(2) Code of Criminal Procedure.

He added that since the Investigating Officer had filed its chargesheet against Adil and the co-accused, before Chief Judicial Magistrate (CJM), Aligarh and after cognisance of the same the applicant along with co-accused have been summoned by the court. The counsel then sought the extension of the anticipatory bail to the applicant till the conclusion of trial.

The Additional Government Advocate (AGA) for the State argued that once the anticipatory bail was granted to the applicant for a limited period and he availed the same, there is no occasion for granting him further anticipatory bail till the conclusion of trial.

He further contended that since the chargesheet had been submitted and cognizance had been taken thereof by the CJM, the applicant should apply for regular bail under Section 439 Cr.PC or challenge the charge sheet and the summoning order of the CJM.

Court’s observation

Justice Siddharth heard both parties and relied on the case of Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC Online SC 98 where the apex court held that “anticipatory bail need not be of limited duration invariably. In an appropriate case it can continue upto conclusion of trial.”

Therefore, the Allahabad High Court observed that “this court is of the view that power to grant anticipatory bail vested in the High Court does not come to an end after submission of charge sheet.” He added further,

“If the facts of the given case make the applicant entitled for grant of anticipatory bail, even after submission of charge sheet against him and cognizance of the same by the Court, the second anticipatory bail would be maintainable before the High Court even though the applicant was earlier granted anticipatory bail till the submission of charge sheet by the High Court.”

The court went through the facts of the case where an FIR was registered on February 28, 2019 against the applicant Adil for allegedly instigating one Nabel (co accused) to fire at the informant which he missed, resulting in no injuries.

The Bench noted that Adil belongs to a reputed family and his father is an Assistant Professor in Aligarh Muslim University. “Neither in the FIR nor in the statement of the witnesses recorded by the Investigating Officer any weapon has been assigned to him. He has been implicated only to spoil his life career. The applicant has no criminal history nor he has ever been implicated in any other case”, said the court.

Hence, based on the precedent set by the Supreme Court in Sushila Aggarwal, that held that bail can be granted to an accused till the conclusion of trial, the Allahabad High Court accepted the applicants’ prayer for grant of anticipatory bail till the conclusion of trial.

The order may be read here: 

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The Rajasthan High Court has directed the Registrar (Vigilance) to place the order before the concerned committee “to decide what course of action is required to be done as against such Magistrate.” The Magistrate had issued arrest warrants against an accused, despite the fact that the High Court had earlier granted them Anticipatory Bail.

In Nanuram Saini and ors v State of Rajasthan (Crl. Misc. [Petition] No. 4317 of 2020), the petitioners were represented by Mr. Pawan Sharma and Vidhut Kumar Gupta. The respondent State was represented by Public Prosecutor Ramesh Choudhary.

The court said, “The action of the learned Magistrate is clearly wanting and shows scant respect to the High Court’s order as well as having little knowledge relating to criminal law.”

The Single Bench also quashed the order dated September 3, 2020 so far as the issue of arrest warrant and rejecting the application under Section 70(2) Cr.P.C. was concerned and held that the “petitioners shall be treated as entitled to all the benefits as granted by the High Court under the anticipatory bail.”

Section 70(2) of the Code of Criminal Procedure provides that every warrant of arrest shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

Background

The petitioners were granted anticipatory bail by the High Court of Rajasthan in 2003 with the condition that in the event of arresting the petitioners, they shall be released on bail. But the Magistrate issued arrest warrants against the two allegedly involved in house trespassing, cheating, forgery, criminal conspiracy under the Indian Penal Code in September 2020.

The petitioners had submitted that on coming to know about the arrest warrants, they moved an application informing the Magistrate that they are on anticipatory bail by the High Court and also requested that the arrest warrants should be converted into bailable warrants in terms of Section 70(2) Cr.P.C.

However, the learned Additional Chief Judicial Magistrate via its order dated September 3, 2020 refused to convert the non bailable warrants to bailable warrants on the premise that he does not have the power to convert the non-bailable warrants to bailable warrants as it would amount to refuse to recall its earlier order, which is barred in terms of Section 362 Cr.P.C. and he further issued arrest warrants on the same day.

Section 362 of the Code of Criminal Procedure lays down that no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

The counsel of petitioners also referred to a Five Judge Bench decision in Sushila Agarwal & Others Versus State (NCT of Delhi) & Anr (SLP [CrL.] No. 7281-7282 of 2017) that held that the anticipatory bail granted by the Court shall continue till the end of the trial.

Court’s observation

The Single Bench of Justice SP Sharma took cognisance of the submissions made by the petitioners and said that the action of the Magistrate is “in clear violation of the orders passed by the High Court after having granted anticipatory bail.”

“There was no occasion for the learned Magistrate to have issued the arrest warrants and such course or power was not available with it in spite of having been given to it. Learned Magistrate has insisted on issuing of the arrest warrants and it is also seen that the provisions of Section 362 Cr.P.C. cannot come into operation while deciding the application under Section 70 (2) Cr.P.C”, added the order.

Accordingly, he allowed the criminal miscellaneous petition and disposed of all pending applications.

The order may be read here:

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Justice Ashok Menon of the Kerala High Court allowed the anticipatory bail application of dubbing artist Bhagyalakshmi and two other women – Diya Sana and Sreelakshmi Arackal in Bhagyalakshmi K. v. State of Kerala (Bail App No. 6686 of 2020).

S. Renjith and K.P. Jayachandran represented the three applicants/petitioners. Public Prosecutor, Director General of Prosecution, Senior Government Pleader Suman Chakravarthy and K. Arjun Venugopal represented the respondents (State and YouTuber Vijay P. Nair)

The court said, “The first applicant (Bhagyalakshmi) claims to be a celebrity of repute and the other applicants claim to be involved in social work. Taking law into their hands would set them as bad example for people to follow. Though I do not approve of vigilantism shown by the applicants in taking law into their hands, I also do not feel it necessary to incarcerate them just for the purpose of giving them a taste of imprisonment as a lesson.”

He added, “The gravity of the offence and the possibility of the applicants fleeing from justice are very important criteria for the granting of anticipatory bail. The applicants are ladies without any criminal antecedents. The fact that the applicants had, soon after the incident appeared before the Police and surrendered the articles which they had allegedly robbed is an indication to the fact that they’re willing to co-operate with the investigation and are not likely to flee from justice.”

The court directed that in the event of their arrest, the petitioners shall be released on bail on execution of bond for Rs. 50,000/- each, will not tamper with evidence and cooperate with the investigation.

Background

The petitioners approached this court under section 438 of the Code of Criminal Procedure apprehending their arrest for assaulting the respondent Vijay P. Nair for “abusing feminists and reputed women in the state”. It was alleged that he had also made “sly innuendoes against the 1st applicant (Bhagyalakshmi) and others intending to tarnish their reputation.”

On September 26, the petitioners had gone to Vijay P Nair’s office and poured black ink and nettle oil on his face with the intention to humiliate him. They also live-streamed the attack via Facebook Live. Further, they took away his laptop, mobile phone, microphone and headset.

Subsequently, the women were booked under the Indian Penal Code for house-trespass after preparation for hurt, assault or wrongful restraint, uttering any obscene words in or near any public place, voluntarily causing hurt, criminal intimidation, robbery and acts done by several persons in furtherance of common intention. 

After hearing the submissions made by both sides, the Kerala High Court overturned the decision of the trial court that denied pre arrest bail to the petitioners. Justice Menon said, “The order of rejecting an application for anticipatory bail by the Sessions Court is definitely not binding on the High Court but vice versa may be true.”

It noted that the prosecution had failed to establish that custodial interrogation of the women is essential to the investigation. “The applicants cannot be subjected to custodial interrogation and incarceration merely for the reason that granting them bail would give the wrong message to the public or that it would amount to encouragement of vigilantism or taking law into one’s own hands.”

Accordingly, their petition was allowed.

The order dated November 10, 2020 may be read here: 

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A recent Karnataka High Court order granting anticipatory bail to a rape accused has taken sexual violence jurisprudence back by decades. In what can be termed as a substantially regressive rationale for giving bail to a rape accused which could affect the trial of the case, the court said that the fact that the complainant slept after the alleged crime is unbecoming of an Indian woman.

The accused was booked under charges of rape, cheating and criminal intimidation under the Indian penal Code (IPC) and under penal section of Information Technology Act under section 66B [Punishment for dishonestly receiving stolen computer resource].

The single judge bench of Justice Krishna Dixit in order dated June 22, considered the government pleader’s contention that the charges against the accused were serious and an offender like him should not be let out in the society. The court said that seriousness of the charges is not the only criteria to deny bail and whether there is prima facie case, also needs to be considered.

The court disbelieved the allegation of the complainant that she was subjected to rape on the false promise of marriage given that the accused presented a letter as proof whereby the complainant was ready to reach compromise to withdraw this case; also the court speculated why the complainant did not approach the court earlier when the accused was allegedly asking her for sexual favours.

Further, the court also questioned why the complainant went to her office at 11 pm; why she did not object to consumption of drinks (sic); why she allowed the accused to stay with her till morning. The court said that the complainant’s explanation that she fell asleep after the alleged crime is “unbecoming of a woman; that is not the way our women react when they are ravished”.

The court granted anticipatory bail to the accused on the principle of ‘granting of bail is rule and denial is exception’ as also keeping in mind the Covid-19 pandemic posing a threat to infection in prisons. When the pleader for the complainant contended that if granted bail it would be difficult to secure the accused person’s presence for investigation or trial, the court said it would levy stricter conditions.

The rape accused was thus granted pre arrest bail subject to the following conditions:

(i) petitioner shall execute a Personal Bond for a sum of Rs.1,00,000/- (Rupees one lakh) only with two sureties for the like sum;

(ii) petitioner shall cooperate in the investigation/further investigation at all times and appear before the jurisdictional police, if & when, so directed;

(iii) petitioner shall not leave the jurisdictional limits of the trial Court without its prior permission;

(iv) petitioner shall mark his attendance in the jurisdictional Police Station every second and fourth Saturday of the calendar month between 9.00 am and 3.00 pm;

(v) the petitioner shall not tamper the evidence or influence/deter the witnesses/victims; nor shall he do anything prejudicial to peace & order in the civil society;

(vi) it is open to the jurisdictional police or the complainant to seek cancellation of bail if & when petitioner commits breach of any of the above conditions or perpetrates any offence hereafter.

While considering whether there is prima facie case against the accused, the court has seemingly disregarded the complainant’s allegations in toto, based on extremely regressive and perilously patriarchal views. The bone of contention is not why the accused was granted bail but the rationale on which he was granted bail which is problematic. This order will not only adversely affect the trail in this case but it also sets a bad precedent for sexual violence jurisprudence.

The order can be read here.

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The post Falling asleep after ‘being ravished’, very unbecoming of an Indian woman: K’taka HC appeared first on SabrangIndia.

On January 29, 2020, a five-member Constitution Bench of the Supreme Court unanimously held that the protection granted to a person under Section 438 of Criminal Procedure Code relating to anticipatory bail should not invariably be limited to a fixed period of time and should be in the favour of the accused without any restriction on time. The bench comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Sharma, Justice MR Shah and Justice SR Bhat held that nothing contained in Section 438 of CrPC compels or obliges the Court to impose conditions limiting relief in terms of time or upon filing FIR or recording the statement of the witness.

The provision of anticipatory bail was introduced in the CrPC by the amendment of 1973. The Court held “The spectre of arbitrary and heavy-handed arrests, too often to harass and humiliate citizens and often times at the interest of powerful individuals led to enactment of Section 438”

The Court while answering as to whether the life of an anticipatory bail should be limited to a fixed stage when the accused is summoned by the Court held that the life or duration of anticipatory bail does not end with the time and stage when the accused is summoned by the Court of when the charges are framed but can continue till the end of the trail. However the Court added stating if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail it is open to do so.

Justice Bhat in his independent and concurring opinion held that “an accused who is granted an anticipatory bail would continue to be at liberty when charge sheet is filed, the natural implication is that there is no occasion for a direction by the Court that he be arrested and further he had co-operated with the investigation”

The Court by overruling the earlier judgments that no conditions should be imposed while granting anticipatory bail held that the Courts would be justified to impose conditions specified in Section 437(3) of Criminal Procedure Court. The Court held as follows:

“The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the State or investigating agency. Such special or restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases, however such limiting conditions may not be invariably imposed”

The Court has also given the power to the appellate or superior court to consider the correctness of the order granting anticipatory bail at the behest of the State or investigating agency.

In conclusion, Justice Bhat has opined that “It would be useful to remind oneself that rights which citizens cherish deeply are fundamental- it is not the restrictions that are fundamental. It would not be in the larger interests of the society if the court, by judicial interpretation, limits the exercise of its power, the danger of such exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind this provision, which has stood the test of time, these 46 years.”

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