The division bench of Justices Surya Kant and Ujjal Bhuyan upheld the bail granted by the special court, while pronouncing its judgement in Arvind Kejriwal v. Central Bureau of Investigation, [SLP (Crl) No. 11023/2024], had heard the matter and reserved verdict on September 5.

Both the judge’s pronounced separate judgements while affirming bail to Delhi CM unanimously. Notably, Justice Bhuyan went one step further and unjustified the CBI arrest and he also observed that the arrest was only meant to frustrate the grant of bail in the ED case against him (Kejriwal).  He added that he is in complete agreement with the conclusion and direction stated by Justice Surya Kant that the appellant should be released on bail but on the necessity and timing of the arrest, he stressed that “I have a definite point of view”.

The Supreme Court’s division bench pronounced its verdict against Kejriwal’s challenge to the Delhi High Court order of August 5, whereby his petition challenging the CBI arrest on June 26, 2024 and seeking bail were dismissed with liberty to approach the trial court for bail.

Brief background and a time-line:

In the ED case, it is alleged that Arvind Kejriwal is the main conspirator of the Delhi excise scam and is directly involved in the use of corruption money of over Rs. 100 crores. The ED’s case claims that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12% to certain private companies, although such a stipulation was not mentioned in the minutes of the meetings of the Group of Ministers (GoM). 

He became the first sitting Chief Minister to be arrested while in office. His arrest came after months of non-compliance with nine summonses from the ED, which he had labelled “illegal.”

AAP Chief & Delhi CM Arvind Kejriwal was arrested by the Enforcement Directorate (ED) on March 21, 2024, in connection with a money laundering case and his alleged indulgence in Delhi Excise Policy Scam 2021-22. 

Later, on May 10, the Supreme Court granted Kejriwal interim bail until June 1, in the money laundering case, and highlighted that Kejriwal, as Chief Minister and leader of a national party, posed no threat to society and had no criminal background.

On June 2, Kejriwal surrendered at Tihar Jail as Supreme Court Registry on May 29, refused to list Delhi CM’s plea for extension of interim bail.

On June 20, 2024, Delhi’s Judge Nyay Bindu of Rouse Avenue Court granted bail to CM Kejriwal in the money laundering case.

In a dramatic shift in CM Kejriwal’s bail, on June 21, the Delhi High Court stayed the order granting bail to Kejriwal in the money laundering case connected to the liquor policy case. The High Court stayed the operation of the bail order till the final order is passed on the stay application filed by the ED.

On June 25, the Delhi High Court finally stayed the trial court’s order granting bail to CM Kejriwal. Justice Sudhir Jain while staying the bail, observed that trial court didn’t properly appreciate ED’s case & materials. He opined that the vacation judge failed to discuss the requirement of section 45 of PMLA while passing the bail order.

On June 26, 2024, in a significant move, the AAP chief was formally arrested by the CBI while he was in custody of the ED in the excise case. The CBI was investigating this case on corruption and bribery involvement. Delhi Court on same day, remands CM Kejriwal for 3 days CBI custody.

On July 12, 2024, the Supreme Court granted Kejriwal interim bail in the ED case, questioning the validity and timing of his arrest by the ED in March, 2024. Despite the bail in the ED case on June 20, Kejriwal remained in custody under CBI’s separate charges.

On August 5, the Delhi High Court upheld the CBI’s decision to arrest Kejriwal, directing him to approach trial court to seek regular bail.

On August 12, 2024, Kejriwal challenged the Delhi High Court’s decision before the Supreme Court in which, the Supreme Court after hearing the arguments and submission made by the Kejriwal’s Counsel and CBI’s response, reserved the verdict on September 5, 2024.

And, significantly on September 13, the division bench of Supreme Court set aside the arrest made by CBI in June 26 and ordered the release of Delhi CM Arvind Kejriwal. 

Submissions made by Arvind Kejriwal

Senior Advocate Abhishek Manu Singhvi appeared for Delhi CM Kejriwal. He submits that Kejriwal was arrested illegally, in violation of the procedure enumerated in Sections 41(1) and 41A of the CrPC. He further added that High Court erred in misapplying the provision of Section 41(2) of the CrPC to justify the noncompliance’s of Section 41(1)(b)(ii) of the CrPC and consequential arrest of the Appellant. He highlighted that Section 41(2) is attracted only non-cognizable offences and arrest of the Kejriwal was made in a case of cognizable offence. Singhvi also submits that the arrest was made against the dictum of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Singhvi also emphasized that Kejriwal has been granted both interim and regular bail in the ED matter by this Court, where the conditions are stricter and submits that the trial was not likely to be concluded in the near future, as the FIR was registered on 17.08.2022, with one chargesheet and three supplementary chargesheets having been filed, 17 accused persons arraigned, as many as 224 witnesses cited and the physical and digital records running into lakhs of pages. Further he added that the fourth supplementary charge sheet was filed on 29.07.2024.

Submissions made by CBI

For CBI, Additional Solicitor General of India, S.V. Raju appeared before the bench and contended that arrest of the Kejriwal had been conducted in due compliance with the statutory procedure as contemplated in Section 41(1) and 41A of the CrPC. He strenuously urged that the pre-requisites set out in Section 41(1)(b)(ii) had been fulfilled as the CBI deemed it imperative to conduct the custodial interrogation of the Appellant to unearth a larger conspiracy hatched amongst the accused persons and to establish the money trail of ill-gotten proceeds. He argued that the CBI had obtained permission from the Trial Court, under whose custody the Appellant was.

ASG Raju referred, Section 41A (4) of the CrPC, which outlines the procedure for situations where an accused fails to comply with a Section 41A notice. He submits that, Kejriwal is already in jail, the conditions envisaged under Section 41A (4) becomes inapplicable and therefore, the requirement of notice thereunder was not necessary. He submits that Kejriwal should be relegated to the Trial Court.

Decision of the Supreme Court 

The division bench Justices Surya Kant and Ujjal Bhuyan of Supreme Court, granted bail to Arvind Kejriwal without going into the merits of the case. The bench affirmed the grant of bail to Kejriwal in concurrent view.

The observations made by Justice Surya Kant in its separate judgement shifted more to procedural grounds and technical aspects of the arrest. He affirmed the lawfulness of CBI arrest but on the other hand Justice Bhuyan expressed its different opinion with regards to the dramatic and hasty arrest made by CBI just after Kejriwal granted bail in ED case. 

The bench also imposed bail bonds for a sum of Rs. 10,00,000/- against bail and made restriction Kejriwal from making any public comments on the merits of the CBI case. (Para 47)

Justice Bhuyan questions need and necessity of CBI arrest

Pertinently, Justice Ujjal Bhuyan in his separate judgment, has expressed displeasure with CBI and said that Kejriwal’s arrest by the agency after secured bail in the ED case was only to frustrate Kejriwal’s release from prison.

Justice Bhuyan while playing active role in pronouncing of judgement in CM Kejriwal’s CBI arrest and unjustified the CBI arrest and said that the CBI did not arrest Kejriwal for 22 months and arrested Kejriwal just after the bail granted by ED. 

Justice Bhuyan while questions the timing of CBI arrest, observed that “it is evident that CBI did not feel the need and necessity to arrest the appellant from 17.08.2022 till 26.06.2024 i.e., for over 22 months. It was only after the learned Special Judge granted regular bail to the appellant in the ED case that the CBI activated its machinery and took the appellant into custody. Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself. For 22 months, CBI does not arrest the appellant but after the learned Special Judge grants regular bail to the appellant in the ED case, CBI seeks his custody. In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case.” (Para 23)

“Power to arrest is one thing but the need to arrest is altogether a different thing”

Justice Bhuyan more specifically underlined the need and necessity of power to arrest while expressing his displeasure with CBI’s impugned arrest. He stated that “Power to arrest is one thing but the need to arrest is altogether a different thing. Just because an investigating agency has the power to arrest, it does not necessarily mean that it 16 should arrest such a person.” He further added that the existence of the power of arrest is one thing but justification for the exercise of it is quite another. (Para 27).

Justice Buyan relied upon the decision in Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1 and emphasized that investigation must be fair and effective. He stressed that investigation should be conducted in a manner so as to draw a just balance between a citizen’s right under Articles 19 and 21 of the Constitution of India and the expansive power of the police to make investigation. Concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. (Para 28)

“Investigations are not used as a tool of harassment”

Notably, Justice Bhuyan pointed out the observation made in the case of Mohd. Zubair and Arnab Goswami, and reiterated that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly and proper enforcement of criminal law on the one hand and the need to ensure that the law does not become a ruse for targeted harassment on the other. He further added that “courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of the citizens. Deprivation of liberty even for a single day is one day too many.” (Para 30)

The bench placed reliance in case of Mohd. Zubair Vs. State (NCT of Delhi), (2022) SCC Online SC 897, and emphasized that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly. He pointed out that “this Court reiterated the role of the courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment.” (Para 30)

“CBI must dispel the notion of being a caged parrot” 

Justice Bhuyan underlines that the CBI must dispel the notion of being a caged parrot and must show it is an uncaged parrot, he also reminded the CBI of its duty to ensure that its investigations are fair. Justice Bhuyan lambasted the CBI, pointing that as a premier investigating agency of the country, it should not perceive as making arrests in a high-handed manner.

While questioning the manner in which CBI made arrested of CM Kejriwal he emphasized that “CBI is a premier investigating agency of the country. It is in public interest that CBI must not only be above board but must also be seem to be so. Rule of law, which is a basic feature of our constitutional republic, mandates that investigation must be fair, transparent and judicious. This Court has time and again emphasized that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India. Investigation must not only be fair but must be seem to be so. Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a high-handed and biased manner” (Para 32)

Justice Bhuyan reprimands the CBI and observed that in functional government by the rule of law, perception matters. He added that “not so long ago, this Court had castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot” (Para 33)

Justice Kant stands on procedural grounds and technical aspect of the arrest

Justice Surya Kant while affirming the legality of the CBI arrest, primarily shifted towards procedural and technical aspect of the arrest and held that the arrest of Kejriwal was legal and did not suffer from any procedural irregularity. There is no merit in the submission that the CBI failed to comply with the statutory mandate of Section 41 of the Code of Criminal Procedure (CrPC) while arresting him (Kejriwal).

Justice Kant held that arrest was valid and in compliance with relevant procedural laws.

“There is no impediment in terms of arresting a person already in custody for the purposes of investigation, whether for the same offence or for an altogether different offence.3 The Appellant’s arrest by the CBI was thus entirely permissible, in light of the Trial Court’s order dated 25.06.2024.” (Para 26)

Justice Kant procedural centric verdict also justified the procedure adopted by CBI during arrest of CM Kejriwal and held that Section 41A (3) allows for arrest, provided the reasons are recorded, justifying the necessity of such a step, and the police officer is satisfied that the individual should be arrested and Section 41A (1), when read with Section 41A (3) CrPC, does not impose an absolute prohibition on the arrest. (Para 27 & 28 of Justice Kant’s Judgement)

Justice Kant held that Kejriwal’s arrest does not suffer from any procedural flaw and was valid and said “in view of these considerations, we do not find any merit in the Appellant’s contention that the CBI failed to comply with Section 41A CrPC, in its true letter and spirit”. (Para 29) 

The bench unanimously grants bail to CM Kejriwal

Notably, despite the separate order passed by Justice Ujjal Bhuyan, the bench unanimously affirmed the bail to Arvind Kejriwal, while setting aside the impugned judgment of the High Court dated 05.08.2024, subject to the terms and conditions in para 47 of the order, authored by Justice Surya Kant.

However, Justice Ujjal Bhuyan has also doubted the correctness of the bail condition imposed by a bench headed by Justice Sanjiv Khanna in the ED case that Kejriwal will not sign papers and enter CM office. The bench also dismissed the criminal appeal challenging the legality of arrest.

The judgement of can be found here:

Related:

Justice Nyaya Bindu grants bail to Arvind Kejriwal in excise policy case, and becomes a victim of a right wing campaign 

Between Bail and Jail, how authorities bypass law and jurisprudence

Supreme Court grants bail to Manish Sisodia in excise policy case after 17 months of incarceration

The post Delhi Excise Policy Row: Supreme Court grants bail to Delhi CM Arvind Kejriwal appeared first on SabrangIndia.

In positive development concerning bail jurisprudence, the Supreme Court on August 22 said that courts should not impose excessive bail conditions which would be impractical to comply with. The verdict notes that “From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right.” The court clarified that as to what constitutes “excessive” needs to be decided on a case-to-case basis, taking into consideration the facts and circumstances of the case.

The bench of Justices BR Gavai and KV Vishwanathan delivered the verdict on the plea filed by one Girish Gandhi requesting the court to consider joint sureties against multiple bail orders issued to him by the courts across several states. In the present case, bail orders were secured against 13 FIRs filed against Gandhi under IPC Sections 406 (criminal breach of trust), 420 (cheating) and 506 (criminal intimidation), across the states of Uttar Pradesh, Haryana, Punjab, Rajasthan, and Uttarakhand.

The court noted that “The substratum of the allegation is that the Company which was to give space to open store on rent in some cases; 5% commission on monthly sale in some; 10% margin on goods sales in some others; 12% interest as dividend on investment in a few and minimum 24% profit in certain agreements, failed in its promise.”

While Gandhi secured bail orders in several FIRs across the states, the conditions imposed therein required him to furnish separate surety in each case, which he was unable to find. He managed to arrange sureties against the FIR registered in Kerala and in one of the two FIRs filed in Haryana, but did not find in other cases. At the same time, the states of Uttar Pradesh (UP), Rajasthan, and Uttarakhand opposed the plea, arguing that separate sureties must be furnished against the FIRs registered in their respective states. Explaining the objection from the state of UP, the judgement reads, “According to the State, for each crime number, separate surety is required and a particular surety cannot be made liable to pay the amount in excess of the amount of bond that the surety has furnished. In view of that, according to the State, bond of one surety cannot be mixed up with the bond executed or to be executed in other cases against different crime numbers.”

The judgement observes that “…where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate.”

The bench relied on Satender Kumar Antil vs. Central Bureau of Investigation & Anr. [(2022) 10 SCC 51] and quoted that “imposing a condition which is impossible of compliance would be defeating the very object of release”. It further cited Hani Nishad @ Mohammad Imran @ Vikky vs. The State of Uttar Pradesh [SLP (Criminal) Nos. 8914-8915 of 2018] in which the court had granted relief to the petitioner by ruling that “the personal bond so executed by the Petitioner and the bond so executed by the two sureties shall hold good for all the 31 cases”.

Furthermore, the apex court said that courts cannot compel the person to furnish only local surety as it is very difficult in most cases and noted that “The petitioner herein hails from Haryana and to secure a local surety will be an arduous task for him”. Relying on the authoritative Justice Krishna Iyer in Moti Ram and Ors. vs. State of Madhya Pradesh [(1978) 4 SCC 47], the bench waived off the requirement for local sureties, implying that such requirements are parochial and divisive.

The court ruled that “in each of the States of Uttar Pradesh, Rajasthan, Punjab and Uttarakhand, in each state, the petitioner will furnish his personal bond for Rs. 50,000/- and furnish two sureties who shall execute the bond for Rs. 30,000/- each which shall hold good for all FIRs in the concerned State, for cases mentioned in the chart set out hereinabove. The same set of sureties is permitted to stand as surety in all the States.”

In the separate order passed by the Supreme Court on August 6 [Satender Kumar Antil v. Central Bureau of Investigation and anr – MA 2034/2022], the Bench of Justices MM Sundresh and Aravind Kumar issued directions to the states/UTs, Union of India, several High Courts, and Central Bureau of Investigation, asking them all to comply with the SOP issued by the apex court in February 13, 2024 to help accelerate release of undertrial prisoners from jail who have secured bail but are unable to furnish bond/sureties.

The SOP was initially formulated by the Central Government but the Supreme Court gave it a legal shape and issued the following directives in its February 13 order:

Undertrial Prisoners –

1. If the undertrial prisoner is not released from the jail within a period of 7 days of order of grant of bail, then the jail authority would inform Secretary, District Legal Services Authority (DLSA).
2. Secretary, DLSA would inquire and examine whether the undertrial prisoner is not in a position to furnish financial surety for securing bail in terms of the bail conditions. For this, DLSA may take the assistance of Civil Society representatives, social workers/ NGOs, District Probation officers or revenue officer. This exercise would be completed in a time bound manner within a period of 10 days.
3. Secretary, DLSA will place all such cases before the District Level Empowered Committee every 2-3 weeks.
4. After examination of such cases, if the Empowered Committee recommends that the identified poor prisoner be extended the benefit of financial benefit under ‘Support to poor prisoners Scheme”, then the requisite amount upto Rs. 40,000/- per case for one prisoner, can be drawn and made available to the Hon’ble Court by way of Fixed Deposit or any other method, which the District Committee feels appropriate.
5. This benefit will not be available to persons who are accused of offences under Prevention of Corruption Act, Prevention of Money Laundering Act, NDPS or Unlawful Activities Prevention Act or any other Act or provisions, as may be specified later.
6. If the prisoner is acquitted/convicted, then appropriate orders may be passed by the trial Court so that the money comes back to the Government’s account as this is only for the purposes of securing bail unless the accused is entitled to the benefit of bail U/s. 389 (3) Cr.P.C. in which event the amount can be utilised for bail by Trial Court to enable the accused to approach the Appellate Court and also if the Appellate Court grants bail U/s. 389 (1) of Cr.P.C.
7. If the bail amount is higher than Rs. 40,000/-, Secretary, DLSA may exercise discretion to pay such amount and make a recommendation to the Empowered Committee. Secretary, DLSA may also engage with legal aid advocate with a plea to have the surety amount reduced. For any amount over and above Rs. 40,000/-, the proposal may be approved by the State level Oversight Committee.

Convicted Prisoners –

1. If a convicted person is unable to get released from the jail on account of non- payment of fine amount, the Superintendent of the Jail would immediately inform Secretary, DLSA (Time bound manner: 7 days).
2. Secretary, DLSA would enquire into the financial condition of the prisoner with the help of District Social Worker, NGOs, District Probation Officer, Revenue Officer who would be mandated to cooperate with the Secretary, DLSA. (Time bound manner: 7 days)
3. The Empowered Committee will sanction the release of the fine amount up to Rs. 25,000/- to be deposited in the Court for securing the release of the prisoner. For any amount over and above Rs. 25,000/-, the proposal may be approved by the State level Oversight Committee.

In the present order, the bench issued further directions for compliance of the aforementioned SOP. These directions are as follows:

1. Every Magistrate and/or Sessions Judge shall inform its jurisdictional Principal District Judge about any form of non-compliance of Para.100.2 or Para.100.3 of Satender Kumar Antil vs. CBI & Anr. (2022) 10 SCC 51, within 1 week of recording such non-compliance;
2. Every Principal District Judge shall maintain a record of details of such non-compliances received from the concerned Magistrates;
3. Every Principal District Judge upon receipt of details of non-compliance by the concerned Magistrate shall, on a monthly basis, forward the same to the Registrar General of the concerned High Court and to the Head of Police in the concerned District;
4. The Head of Police of the concerned District shall, upon receipt of details of non-compliance of Para.100.2, take action against the erring officer as soon as possible and inform the concerned Principal District Judge;
5. The Registrar General of each High Court shall, upon receipt of details of such non-compliance of Para.100.2 and/or Para.100.3, place the same before the Committee for “Ensuring the Implementation of the Decisions of the Apex Court” for further action and forward it to the higher Police Authority. In those High Courts where such a committee is not currently in place, the same shall be constituted by the respective High Court.

The order also asked state governments to ensure full compliance of para. 100.8 and para. 100.9 of Satender Kumar Antil vs. CBI & Anr. [(2022) 10 SCC 51] and provide details as to what steps have been undertaken to facilitate the release of the said UTPs as directed in Para. 100.8. It also instructed states to train its prosecutors on periodic basis to keep them abreast about correct position of law and asked them to circulate the judgements passed by the apex court in Siddharth vs. State of UP [(2022) 1 SCC 676] and Satender Kumar Antil.

The court said that it aims to take up this matter (ensuring compliance with the SOPs) in a phased manner, keeping in view the large number of parties, and scheduled the next hearing on October 15, 2024.

The copy of the August 22 judgement concerning excessive bail conditions can be found here:

The copy of the SC order dated August 6 concerning the compliance directives can be found here:

The copy of the SC order dated February 13 concerning the SOP can be found here:

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Recently, in the case of Jalaluddin Khan vs. Union of India (Cr. A. 3173 of 2024), the apex court bench of Justice Abhay Oka and Augustine George Masih reiterated 8-point prepositions as first identified in NIA v. Zahoor Ahmad Shah Watali judgement [(2019) 5 SCC 1] for considering the bail plea of an accused.

These include:

1. Meaning of “prima facie true”: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.
2. Degree of satisfaction at pre chargesheet, post chargesheet and post-charges — compared: Once charges are framed, it will be safe to assume that a very strong suspicion was found upon the materials before the Court. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet do not make out reasonable grounds for believing that the accusation against him is prima facie true.
3. Reasoning, necessary but no detailed evaluation of evidence: The exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.
4. Record a finding on broad probabilities, not based on proof beyond doubt: The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.
5. Duration of the limitation under Section 43-D (5) of UAPA: Section 43-D of the UAPA applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the Act until the conclusion of the trial.
6. Material on record must be analysed as a “whole”; no piecemeal analysis: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
7. Contents of documents to be presumed as true: The Court must look at the contents of the document and take such document into account as it is.
8. Admissibility of documents relied upon by prosecution cannot be questioned: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence.

The bench said that through Thwaha Fasal vs. Union of India [(2022) 14 SCC 766] the court clarified that the grounds for believing that the accusation against the accused is prima facie true must be “reasonable grounds.” In the present case, the court granted bail to Jalaluddin, who was accused by the NIA of renting out his property to Popular Front of India member to carry out the activities of the Front and himself participating in their meeting.

The bench said “There is nothing in the chargesheet which shows that the appellant has taken part in or has committed unlawful activities as defined in the UAPA. There is no specific material to show that the appellant advocated, abetted, or incited commission of any unlawful activities.” It further noted that “Assuming that the co-accused were indulging in terrorist acts or were making any act preparatory to the commission of terrorist acts, there is absolutely no material on record to show that there was any conspiracy to commit any terrorist act to which the appellant was a party.” The court pointed out that even the chargesheet does not mention any allegation as to the affiliation of the accused with a terrorist gang, and further explained that PFI is not a terrorist organisation under the UAPA.

Significantly, the bench highlighted that the NIA had attributed a witness statement in the chargesheet which the witness had not made, and said that the agency owes an explanation. The verdict reads that “The investigating machinery has to be fair. But, in this case, paragraph 17.16 indicates to the contrary.”  The judgement further mentions that “‘Bail is the rule and jail is an exception’ is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good.” While granting the bail to the accused the bench noted that “The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail,” and if the courts start denying bail in deserving case, that would constitute violation of Article 21.

 Bail and then jail again: circumventing due process

In other cases, too, the courts have granted bail to the accused, but the agencies in such cases have bypassed the due process of law and have subverted the judicial outcome. Article 14 reported that Jammu and Kashmir High Court has quashed 4 detention orders against Kashmiri Lawyer Zahid Ali, however, the police rearrested him in a separate UAPA case linked 2019 prison riots incident occurring inside Srinagar Central Jail.

Notably, while quashing the fourth detention order against Ali, Justice Rahul Bharti of J&K High Court had pulled up the police and magistrate for circumventing previous court orders and ordered the state to pay 5 lakh compensation. In his verdict he remarked that “Read between and behind the lines the dossier and the grounds of detention, the SSP Pulwama and the respondent No.2-District Magistrate Pulwama are literally meaning to debunk the three judgments of this court.”

Similarly, in another order delivered by Justice Bharti, he noted that “A district magistrate acting under the regime of J&K Public Safety Act, 1978, or for that matter even the Government of UT of J&K, is not supposed to parrot the police dictated version in the dossier and serve detention order on a platter,” Indian Express reported.

The verdict further stated that “In India, which is a democratic country governed by rule of law, it cannot be heard to be said by the police and the district magistracy that a citizen was picked up to be interrogated without any registration of a criminal case against him, and from that purported interrogation, a case for preventive detention was found to be made out against the petitioner”.

In the recent case of Delhi CM Arvind Kejriwal, the CBI arrested Kejriwal on June 25, 2024, even as the ED had already registered the case and taken his custody in the matter pertaining to alleged irregularities in Delhi Excise Policy. The CBI registered another case on the same subject and secured his custody. Thus, while he got interim bail from the apex court in the ED case on July 12, he continues to be behind the bars due to the case registered against him by the CBI. His lawyer Abhishek Manu Singhvi had called his arrest by the CBI as insurance arrest to prevent his release from the jail.

Related:

Understanding the PMLA & its bail conditions | Legal Insights | CJP

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The post Between Bail and Jail, how authorities bypass law and jurisprudence appeared first on SabrangIndia.

The Mumbai Police had reportedly made 6 teams to find him and had also given an order barring him from leaving the country.  

According to police reports, Mihir Shah’s father, Rajesh Shah, a Shiv Sena leader from Palghar. Rajesh Shah reportedly even helped his son escape and planned to remove the vehicle from the scene. Kaveri was reportedly brutally dragged by the car for over a distance of 1.5 kms. Her husband Pradeep was also injured in the incident. The police have told in court, as per NDTV, that the driver was ‘well aware’ of his actions. 

As per News18, Kaveri’s husband, Pradeep had told the media that he was shouting at the scene of the incident to stop the car, ‘but he did not listen to me.’ 

Reports have stated that the Mumbai Police told the court that Kaveri Nakhwa was pulled off the bonnet of the BMW car and placed on the road by Bidawat and Shah. The car also reportedly ran over her again as they reversed the car.  

As per a report by Hindustan Times, Rajesh Shah arrived at the scene in a Mercedes, spoke briefly with Mihir Shah, and advised him to escape. Later, Rajesh Shah arranged to take the BMW away from the location. Rajesh Shah is a member of the Eknath Shinde faction of the Shiva Sena. He was also arrested after the incident for not cooperating with the police but was soon granted bail by a Mumbai court. 

Earlier this year, a similar incident took place in Pune where a juvenile in a Porsche was accused of hitting two IT professionals while driving. The accused was the son of a prominent builder named Vishal Agarwal. Agarwal reportedly made huge efforts to make sure that his son was not prosecuted for the case of alleged rash driving and hitting the two people. The case raised a huge uproar about corruption and how the rich and famous are exempt from the rule of law. 

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Corruption as an issue in Indian Election Campaigns: the 2024 story

The post Mumbai: Shiv Sena leader granted bail, as son arrested for alleged case of hit and run appeared first on SabrangIndia.

In its order passed on February 19, Justice Amit Mahajan observed that the object of granting bail and suspending sentence is to release the accused/convict from imprisonment and it was beyond the Court’s understanding as to why jail superintendents were taking one to two weeks for accepting the bail bonds.

The court therefore sought an immediate response from the Director General of Prisons and Standing Counsel (Criminal) of Delhi government on the issue and has posted the matter for March 7. Justice Mahajan took cognisance of the issue while dealing with a modification application filed by a convict whose sentence was suspended on February 8. Despite this the prisoner has not been released!

 “In certain cases, interim bails are granted on medical grounds or some other exigencies, as expressed by the applicant. In such a scenario this Court fails to understand why the period of one to two weeks be taken by the Jail Superintendent for accepting the bail bonds,” the Court said.

 “The Court while passing bail order at times directs that the Bails bond be directly furnished to the Jail Superintendent. The prisoner is not remitted to the Trial Court in order to facilitate the immediate release. The delay at the instance of the Jail Superintendent in accepting Bail Bonds is not acceptable to the conscience of this Court. Let the matter be registered as sou moto petition and numbered,” the Court ordered.

The Court noted any order passed by the Court directing release of prisoner from jail is sent directory to the jail authorities through Fast and Secured Transmission of Electronic Records (FASTER) cell and yet delays were happening.

Facts of the case:

“By order dated 08.02.2024 in CRL.REV.P. 1362/2023, the sentence awarded to the petitioner therein was suspended and he was directed to be released on bail on certain conditions and on furnishing a bail bond to the satisfaction of the Jail Superintendent. (Para 1)

“An application was filed pointing out that the bail bond which was directed to be furnished to the satisfaction of the Jail Superintendent, has not been processed. The grievance raised by the learned counsel for the petitioner was that, despite the sentence being suspended by this Court by the order dated 08.02.2024, the petitioner has not yet been released.” (Para 2)

“The petitioner was compelled to approach this Court seeking modification in the order dated 08.02.2024 to the extent that the petitioner be directed to furnish the bail bond to the satisfaction of the learned Trial Court instead of the concerned Jail Superintendent.” (Para 3)

“It was alleged that the formalities in relation to the acceptance of bail bond by the Jail Superintendent takes this is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/02/2024 at 18:04:38 approximately one to two weeks.” (Para 4)

“The object of granting bails and suspending sentences is to release the accused/convict from imprisonment. In certain cases, interim bails are granted on medical grounds or some other exigencies, as expressed by the applicant. In such a scenario this Court fails to understand why the period of one to two weeks be taken by the Jail Superintendent for accepting the bail bonds.” (Para 5)

Quoting from repeated pronouncements of the Supreme Court on the principle that  “Deprivation of Liberty for a single day is a day too many..”, the Delhi High Court also referred to the Guidelines for Compliance of Bail Orders by the apex court in Suo Moto Writ Petition (Civil) No.4/2021.

These are:

1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].

2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.

3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.

4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.

5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in this is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/02/2024 at 18:04:38 an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.

6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.

7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.” We order that the aforesaid directions shall be complied with” (emphasis supplied)

Further, the Delhi High Court also referred to the Supreme Court order in Suo Moto Writ Petition (Civil) No.4/2021 in which the apex court had also passed directions to adopt the procedure termed as ‘FASTER’ for Fast and Secured Transmission of Electronic Records, in order to reduce the delay caused in forwarding the orders granting bail to the Jail Authorities.

In the February 19 order, the Delhi HC pointed out that the Rule 7 (mentioned above) is also incorporated in part E of the Chapter 14 of the Delhi High Rules & Orders, the same reads as under: I. The following Rule shall be introduced as Rule 7 after the existing Rule 6 of Part E of Chapter 14 of Delhi High Court Rules & Orders, Volume I: – “7. Fast and Secured Transmission of Electronic Records (FASTER): The e-authenticated copies of the interim orders, stay orders and record of proceedings of the courts transmitted through Fast and Secured Transmission of Electronic Records (FASTER) System shall be valid for compliance of the direction contained therein.”

Therefore, the Court held that “any order passed by this Court thereby directing the release of the prisoner from jail is sent directly to the concerned jail authorities through FASTER cell,” and the “Court while passing bail order at times directs that the Bails bond be directly furnished to the Jail Superintendent. The prisoner is not remitted to the Trial Court in order to facilitate the immediate release.” (Para 10)

Hence, the court stated that, “the delay at the instance of the Jail Superintendent in accepting Bail Bonds is not acceptable to the conscience of this Court. Let the matter be registered as Sou Moto petition and numbered.”

Notice was thereafter issued to the Director General of Prisons and Standing Counsel (Criminal), Government of NCT of Delhi.

Ms. Nandita Rao, learned Additional Standing Counsel, who was present in Court, submitted that the petitioner’s case is possibly an aberration and delay normally does not occur on the part of the Jail Superintendent.

The Order of the Delhi HC may be read here

Related:

Bail not Jail: SC tells Bombay HC to decide bail applications on priority, cites violations of personal Liberty, violation of Article 21

Bail For Kashmiri Journalists: What Does It Mean For Freedom Of Expression?

Punjab & Haryana HC: Duty of the court to be more onerous, bail cannot be denied just because serious allegations

The post ‘Why are jail superintendents taking a week to a fortnight for accepting jail bonds?” Delhi HC asks, registers suo moto case on delay by jail authorities appeared first on SabrangIndia.

In this case, on which an order was passed on February 26, Monday, the accused, had been in custody for over seven years, and had preferred a bail application before the Bombay High Court. However, the Bombay High Court without hearing the application on merit has asked the applicant to approach the trial court to seek bail.

Challenging the decision of the High Court, the accused had filed a criminal appeal before the Supreme Court, citing a previous order dated 29.01.2024, the Supreme Court expressed concern over the non-exercise of jurisdiction vested in the High Court to decide the bail application on merits. The Supreme Court thereafter restored the case with the High Court while setting aside the impugned order. Besides, it also requested the High Court to decide the matter on merits within two weeks.

Although the Bombay High Court had granted bail to the accused-appellant on merits in compliance with the Supreme Court’s order, in January 2024, the Supreme Court still noted that “We have also come across numerous matters wherein the learned Judges are not deciding the matter on merits but find an excuse to shunt the case on different grounds.”

“We have come across various matters from the High Court of Bombay where the bail/anticipatory bail applications are not being decided expeditiously. We have also come across one matter SLP Crl….@ Diary No.1540/2024 (Ashok Balwant Patil v. Mohan Madhukar Patil and Ors), wherein the application for anticipatory bail was not decided for a period of more than four years.”, the Supreme Court stated.

The Supreme Court further observed that the non-deciding of bail application expeditiously deprives the accused of fundamental rights guaranteed under Article 21 of the Constitution.

“Needless to state that Article 21 of the Constitution of India is the soul of the Constitution as the liberty of a citizen is of paramount importance. Not deciding the matter pertaining to liberty of a citizen expeditiously and shunting away the matter on one or the other ground would deprive the party of their precious right guaranteed under Article 21 of the Constitution of India.”

The Supreme Court directed its Registrar (Judicial) to communicate this order to the Registrar (Judicial) of the High Court, who shall place the same before the Chief Justice of High Court of Bombay.

The Order of the Supreme Court may be read here:

Related:

Bail For Kashmiri Journalists: What Does It Mean For Freedom Of Expression?

Unjust detention: Gautam Navlakha’s bail victory highlights insufficient evidence

The post Bail not Jail: SC tells Bombay HC to decide bail applications on priority, cites violations of personal Liberty, violation of Article 21 appeared first on SabrangIndia.

Justices A S Gadkari and S G Dighe, Bombay High Court, December 19
(Paragraph 19, page 33)

The court’s assessment in the Gautam Navlakha bail hearing highlighted the lack of substantial material linking Navlakha to terrorist activities. It emphasized that his alleged membership with CPI (Maoist) could, at most, implicate him under sections 13 and 38 of the Unlawful Activities (Prevention) Act, carrying a maximum punishment of ten years. Statements and documents referencing Navlakha were considered hearsay, lacking probative value. While granting bail however, the court stayed the order for three weeks, allowing the National Investigation Agency (NIA) to appeal to the Supreme Court.

The high court questioned the NIA’s attempt to establish Navlakha’s association with terrorist activities through recovered documents and communications, citing an absence of conclusive evidence linking him to any terrorist acts. It also rejected claims of Navlakha’s connection with Pakistan’s ISI, attributing a letter he wrote seeking clemency to individual action rather than organizational ties.

The court also remarked that the documents, which have not been recovered from Navlakha but mention his name, have “weak probative value or quality”. “The content of these letters/documents through which the appellant is sought to be implicated are in the form of hearsay evidence, as they are recovered from co-accused,” it said. “The actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and or statements of the witnesses. According to us, there is no material to infer conspiracy to commit an offence as contemplated under Chapter IV of the UAPA (terrorist activities),” the HC said. (Paragraph 17, page 32 of the Judgement)

Navlakha has, until this judgement was delivered, spent three years in jail, with the trial court yet to frame charges, casting doubt on the possibility of a near-future trial conclusion. The case originated from the alleged inflammatory speeches at the Elgar Parishad conclave in Pune in 2017, purportedly instigating violence near the Koregaon-Bhima war memorial. Navlakha is the seventh accused granted bail in this case. Navlakha was not present at the occasion.

“…the Appellant is in pre-trial incarceration for more than three years and eight months. The charge-sheet consists of about 20,000 pages in 54 Volumes and the prosecution has cited 370 witnesses in it. The learned Judge of 

the trial Court has submitted a report dated 18th September, 2022 stating that, it will require more than a year to frame charge. As a matter of fact, till date the trial Court has not framed charge. The possibility of trial of the Appellant being concluded in near future is very bleak,” the order states. (Paragraph 26, page 36)

After Despite earlier refusals of medical bail, Navlakha’s second appeal in the high court sought regular bail, contesting the special court’s opaque reasoning. The case involves a chargesheet exceeding 5,000 pages and aims to cross-examine around 200 witnesses. Out of the 16 accused, 11 remain incarcerated for up to five years without trial, while five have secured bail. Navlakha and another accused, Raut, await a Supreme Court decision regarding their bail status.

Tragically, tribal rights activist Father Stan Swamy passed away in judicial custody in July 2021 due to Covid complications while awaiting bail on medical grounds. 

The court’s bail verdict hinged on the lack of substantial evidence linking Navlakha to terrorist activities, casting doubt on his alleged involvement and affirming the need for conclusive proof before implicating an individual.

Legal Nuances

The judgment meticulously navigates the legal intricacies surrounding bail provisions under the Unlawful Activities (Prevention) Act (UAPA) and the Indian Penal Code (IPC), notably the application of Sections 13 and 38 of the UAP Act concerning Navlakha’s alleged association with CPI (M). It emphasizes the distinction between mere membership in a political party and involvement in specific unlawful activities, critically analysing the evidence against Navlakha. It questions the sufficiency of evidence linking Navlakha to specific unlawful activities, highlighting the importance of establishing prima facie evidence for charges under these acts.

“Therefore, in the present case, the said documents which have been recovered from the appellant (Navlakha) such as Agenda or Constitution of the Party or other related documents, which allegedly propagated violence, would not attract the provisions of section 15 of the UAPA (terrorist act),” the court said. (Paragraph 15, page 31)

The case hinges on the interpretation of seized documents, witness statements, and Navlakha’s alleged association with banned groups. It reflects the challenge of discerning evidential relevance and credibility while balancing individual rights against state interests. The nuanced legal landscape necessitates a comprehensive understanding of how evidence, especially seized documents, is interpreted within the context of the law. The legal complexity lies in understanding the nexus between Navlakha’s alleged involvements in the event and the subsequent violence. There’s a need to assess the evidentiary value of the materials presented and whether they directly implicate Navlakha. 

The case necessitates both a nuanced examination of intention and execution of the alleged crime. While the prosecution attempted to tether Navlakha to the Elgar Parishad event, scrutinising the execution of his alleged actions became pivotal. The crux lay in discerning whether Navlakha’s purported association was an act of dissent or part of a larger orchestrated design leading to violence.

Assessment of Constitutional Rights

One of the most crucial aspects is the court’s stance on constitutional rights vis-à-vis statutory restrictions. The judgment emphasises the need to balance the state’s legislative policy against granting bail with the individual’s fundamental rights, invoking questions about the sanctity of activism and the overreach of state machinery. It also points out particularly the right to a speedy trial, a facet enshrined in the Constitution. 

Human Rights and Activism

From a human rights standpoint, the case underscores the vulnerability of activists to prolonged detention and the implications of their lawful dissent being misconstrued as unlawful activities. Navlakha’s case demanded a meticulous dissection of the evidential jigsaw puzzle, attempting to substantiate his alleged actions within the charged events. The judgment highlights the chilling effect such arrests can have on freedom of speech and dissent, raising pertinent questions about the safeguarding of these rights. The central thematic issues encompassed the rights of activists, the boundaries of dissent, and the state’s obligation to protect civil liberties while ensuring national security.

Central Observations of the Court

The court finds insufficient grounds to prima facie support accusations under certain sections of the UAP Act against Navlakha. 

With respect to the documents wherein the name simply referred to as ‘Gautam’ is concerned the bench said that,

“..there is another person by name Gautam @ Kosa @ Gopanna @ Sadha, who is the Central Committee Member of the CPI (M) and therefore it cannot be safely inferred that, it is the Appellant only who has been referred to in those documents. According to us, the identity of the Appellant being the same person ‘Gautam’ is in doubt as far as those documents are concerned. At this stage prima facie we cannot presume that, ‘Gautam’ is the same person as the identity of the said ‘Gautam’ is yet to be established beyond reasonable doubt by the prosecution,” the order states. (Paragraph 16, page 31)

Delay in Trials and Pre-trial Incarceration

The analysis also delves into the issue of delayed trials and pre-trial incarceration. The extended duration of Navlakha’s detention without a framed charge sheet or conclusive trial points to systemic inefficiencies and the impact of such delays on an individual’s right to a speedy trial. The emphasis on considering delay in trials as a factor for bail provisions sets a noteworthy precedent, urging courts to weigh individual rights against statutory restrictions in similar instances.

Social and Political Implications

This judgment reverberates beyond legal boundaries, sparking conversations about the state’s treatment of dissent and the broader socio-political landscape. It draws attention to the thin line between legitimate activism and allegations of unlawful activities, influencing public discourse on civil liberties. 

“Even though in the said documents, the authors of it have expressed their intention to cause fatality to the politically influential persons or to cause tremendous disturbance in the Society at large, the Appellant only being a member of the party cannot be prima facie held to be a co-conspirator to it. From the material on record, it appears to us that, no covert or overt terrorist act has been attributed to the Appellant,” the order states. (Paragraph 18, page 33)

The case symbolises the ongoing struggle for justice and rights within the democratic fabric of India.

Reformative Measures

Gautam Navlakha’s case is a microcosm of the intersection between legal, ethical, and societal concerns, challenging the judiciary, the state, and civil society to introspect and strive for a more balanced, rights-centric approach in handling cases involving activists and dissent. 

“We are of the prima facie opinion that on the basis of the material placed before us by the NIA, it cannot be said that there are reasonable grounds for believing that the accusation against the appellant is prima facie true,” the judgement said. (Paragraph 23, page 35)

The judgment’s ramifications reverberated on two fronts—positively highlighting the sanctity of constitutional rights while cautioning against potential precedents curtailing dissent. Its influence extended beyond courtrooms, impacting legal realms, and advocacy efforts, spotlighting the challenges faced by activists and the paramount need to safeguard fundamental rights. In subsequent legal proceedings and human rights advocacy, the judgment remains pivotal. It likely contributes to ongoing discussions on maintaining the delicate balance between protecting civil liberties and addressing national security concerns. Its impact reverberates across diverse platforms, influencing debates, legal arguments, and advocacy strategies aimed at upholding democratic principles. Gautam Navlakha’s case symbolizes the struggle between individual rights and state interests, resonating strongly within the realm of human rights and legal jurisprudence. The judgment, while granting bail, underscores the need to uphold constitutional principles, ensuring timely trials and safeguarding fundamental liberties.

The entire copy of the judgement may be read here.

Related:

Elgar Parishad case: Bombay HC rejects default bail to Gautam Navlakha

Bombay High Court reserves order in Gautam Navlakha’s bail plea 

Default bail period to commence only from remand date: Bombay HC in Gautam Navlakha Bail case

The post Unjust detention: Gautam Navlakha’s bail victory highlights insufficient evidence appeared first on SabrangIndia.

“The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system”

– Justices Sanjay Kishan Kaul and MM Sundaresh, Supreme Court July 11, 2022

India follows a reformative form of justice system. Our criminal system is founded on the belief of not curtailing the rights of a prisoner and under trial. The system, thus far, also empowers constitutional courts to protect the fundamental rights guaranteed to every citizen of our country. Time and again, the Supreme Court of India has voiced this commitment and but for the dark blemish during the Emergency when personal liberty was curtailed, the Courts are bound to protect and uphold the right to personal liberty of all.

In recent years, a slew of definitive verdicts on increasing numbers and hardships faced by under trials, inordinate and even mala fide delays in hearing bail pleas have sneaked their way as judgements of the court, resulting in a rather mixed jurisprudence. This has then indicated a worrying shift away from holding personal freedom of those incarcerated as paramount.

Over the past 18 months and more, with the leadership of the Supreme Court under Chief Justices NV Ramanna, UU Lalit and DY Chandrachud, the issue of delayed bail hearings have been at the forefront. Pointing out that 80 per cent of those in jail are under trials, Justice Ramanna had listed hasty arrests and difficulty in getting bail as the major causes. The 74 day long short tenture of Chied Justice UU Lalit, too saw significant pronouncements in this regard. After assuming his office in 2022, Chief Justice of India DY Chandrachud had emphasised on following the fundamental principle of ‘bail not jail’ while dealing with the cases of under trials languishing in jails. He had said “the number of under trials languishing in prisons in India reflects a paradoxical situation, and deprivation of liberty, even for a single day, is a day too many.”

2023 – A bumpy ride towards personal liberty

2023 saw trials courts denying bail indiscriminately, more so in cases concerning dissenting political prisoners including activists and journalists. Then, the Supreme Court emerged as the court of call for bail! The CJI remarked, “The reason the higher judiciary is flooded with bail cases is because of a certain reluctance from trial courts to grant bail.” The CJI also spoke about a “sense of fear” in judges in district courts in granting bail, especially in cases involving heinous crime.

Looking back at this calendar year, 2023, we look at some of the most crucial pronouncements by constitutional courts- both the hits and the misses. Following 2022 pronouncements, this year too, saw the Supreme Court make some strenuous efforts to streamline bail procedures and judicial attitudes adopted by lower courts. From responses of several state governments in these proceedings, it is evident that the freedom and liberty of the individual is a matter of low priority. Even the Supreme Court itself has erred on many occasions. In some cases, bail hearings (required to avoid the merits of the charges/case) actually unfolded as mini trials, denial of bail in economic offences saw a spiking trend; often getting a bail hearing heard has been an uphill task. Draconian statutes like the Unlawful (Prevention of Activities) Act and the Prevention of Money Laundering Act (PMLA) that have scripted within a denial of basic freedoms saw hedgy ratifications by judgements of the Court.

Where courts rose to uphold personal liberty in 2023

Several positive judgments on grant of bail emerged from both the Supreme Court and the High Courts of India. In these, these constitutional courts set aside the erring judgments of the subordinate courts, emphasising on their poor application of law and fact while denying bail.

• Not instrumental in the alleged violence:

On January 28, Allahabad High Court granted bail to Javed Pump, leader of Welfare Party of India, who was deemed as the “mastermind” behind the violence in Prayagraj (formerly Allahabad) and had his house unlawfully demolished by the administration.  Violence had been reported in Prayagraj and Saharanpur after the Friday prayers in June 2022 when citizens were protesting against remarks made by erstwhile BJP spokesperson, Nupur Sharma berating Prophet Mohammad. While granting him bail, Justice Sameer Jain observed that given the evidence on record, including statements of witnesses and the accused, Javed did not appear to be the one who provoked any violence. The Court held that he, Javed was only instrumental in a large gathering of people assembling at the location.

• Action and re-education for those judicial officers, prosecuting agencies that violate bail orders:

On March 21, the Supreme Court had expressed disbelief over some of the trial courts failing to adhere to the Supreme Court’s order issued in the case of in Satender Kumar Antil vs Central Bureau of Investigation (Justice Sanjay Kishan Kaul and MM Sundaresh, July 2022). In the 52 page judgement delivered in this case, detailed directives had been issued to trial courts, sections of the Indian Penal Code (IPC) and CRPC had been explained relying on a rich body of previous jurisprudence from the Supreme Court. The Court had re-emphasised that bail is the norm and jail should be the exception.

Expressing their frustration at the refusal of trial courts to adhere to this July 2022 judicial directive, the Supreme Court declared that the courts should not issue detention orders in a routine and mechanical manner, denying the accused’s liberty, and that such judges need to be sent to academies to “upgrade their knowledge.” The Supreme Court also warned that prosecuting agencies, including the CBI, magistrates and public prosecutors, would be “hauled up” if they continued to take a stand in trial courts contrary to the apex court verdict while opposing bail petitions.

In the Satender Kumar Antil case, the Supreme Court had laid out elaborate guidelines regarding arrest and bail. It had observed that non-compliance would have two consequences: a) sending people to custody when they were not required to be sent, and b) causing additional litigation, both of which the Court thought should not be tolerated.

• Failure to reasonable grounds to prove allegations of UAPA are prima facie true:

On April 17, the Supreme Court granted bail to two accused who were alleged to belong to CPI (Maoist) and were also charged with the murder of two Telugu Desam Party (TDP) leaders. In this 2018 murder case of TDP leaders, the bench comprising Justices Abhay S. Oka and Rajesh Bindal granted bail to the two on the grounds that the accused had been detained for more than four years and that charges had not yet been framed. The Court also observed that the materials on record failed to provide reasonable grounds for believing that the allegations against the appellants of commission of an offense under the UAPA are prima facie true, and thus the bar against granting bail under Section 43D(5) of the Unlawful Activities (Prevention) Act was not invoked.

• Sessions court judge sent to judicial academy by SC for denying bail:

On May 2, a bench of Justices Sanjay Kishan Kaul and Ahsanuddin Amanullah of the Supreme Court asked the Allahabad High Court to immediately withdraw any judicial work from a sitting judge of the Sessions Court and send him to the judicial academy to upgrade his judicial assessment skills. The action came as a direct result of trial courts continuing to show reluctance to grant bail to accused in cases where custody was not needed despite the Supreme Court’s various rulings to be liberal in their approach and not pass detention order in a routine and mechanical way.

Notably, in one case of a matrimonial dispute, a Sessions judge in Lucknow rejected the anticipatory bail plea of a man and his mother, father and brother despite the fact that they were not arrested during the probe. In another case, an accused suffering from cancer was denied bail by a CBI court in Ghaziabad.

• SC holds Gujarat HC’s observation in Teesta Setalvad’s case both ‘perverse’, ‘contradictory’ while granting her bail:

On July 19, a Supreme Court bench comprising Justices BR Gavai, AS Bopanna and Dipankar Datta had quashed the Gujarat High Court’s order which denied Teesta Setalvad regular bail, opining that the High Court’s observations were “perverse”. The bench had pointed out that there was a “self-contradiction” in the High Court’s order, as the court almost commented on findings of guilt (merit) despite observing that it could not, consider the merits of any allegation while deciding bail. Most importantly, Justice Gavai had also pointed out that the FIR in the case filed by the Gujarat Police, ostensibly on observations made by the Supreme Court in the Zakia Jafri case, were made without hearing co-petitioner Teesta Setalvad, going against the principles of natural justice.

During the hearings, the bench had also asked a number of incisive and critical questions to the prosecution, making a note of other crucial observations. Firstly, the Supreme Court was bemused to note the Gujarat HC’s approach in holding that the offences should be presumed to be admitted against Setalvad since the petitioner did not file any petition to quash the charge sheet. Secondly, the bench had also pointed to the long delay in filing a case against Setalvad given the fact that the Zakia Jafri case was being litigated since 2008.

The Supreme Court had, on September 2, 2022 first granted interim bail to human rights defender and journalist, Teesta Setalvad after which prolonged hearings for regular bail, took place, every six weeks before the Gujarat High Court. After close to ten months of this, on a Saturday, a single judge of the Gujarat High Court not just rejected bail but refused to grant her stay to appeal to the Supreme Court, directing that she “surrender immediately.” This too was adversely commented upon by the Supreme Court.

• Bail order cannot be cryptic and casual, needs to be backed by reasons considering vital aspects:

On July 24, the Supreme Court bench cancelled the bail order granted by the Rajasthan High Court, granting bail to 3 people involved in the case of an honour killing. The Bench comprising Justices B.V. Nagrathna and Prashant Mishra was hearing an appeal against the said bail order. Setting aside the “cryptic” and “casual” orders passed by the High Court granting bail to the accused, the Supreme Court observed that a prima-facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record.

The bench stated that even in the past, the Supreme Court had ruled that an order granting bail in a mechanical manner, without recording reasons, would suffer from the vice of non-application of mind, rendering it illegal. The bench then reiterated and emphasised on the factors to be taken into consideration for bail, namely the seriousness of the offense, the likelihood of the accused fleeing from justice, the impact of the release of the accused on the prosecution witnesses, and the likelihood of the accused tampering with evidence.

• Mere possessing literature which propagates overthrowing government does not attract UAPA:

On July 28, Supreme Court bench of Aniruddha Bose and Sudhanshu Dhulia granted bail to activists and Elgar Parishad members Vernon Gonsalves and Arun Ferreira in the Bhima Koregaon violence case. While granting the two bail, the bench held that, though the charges against the two accused are serious, that alone cannot be the reason for denying bail. The Supreme Court made certain very important observation in the case, significantly holding that mere possession of certain literature through which violent acts and methods of overthrowing democratically elected government may be propagated would not on its own attract the provisions of Section 15(1)(b) of the UAPA.

The court also observed that none of the material against these accused, whether the electronic recovery from the co-accused, material recovered from the accused themselves or the witness statements, attributed any direct violent act against them.

• Duty of the court to be more onerous, bail cannot be denied just because serious allegations

On November 9, a man booked under provisions of UAPA was granted bail by the Punjab & Haryana High Court on the ground that no prima facie case had been made out against him. The man had been accused of allegedly planning to commit some terrorist acts based on relations with Pakistan. The said judgment, delivered by a division bench of Acting Chief Justice Ritu Bahri and Justice Manisha Batra, notes that no prima facie case had been made against the accused which points to him being part of any conspiracy to form membership of a terrorist gang with the aim of committing acts against the interest of the nation. The bench also emphasised on the duty of the court to be more exhaustive in cases where stringent provisions of the UAPA are invoked as bail cannot just be denied because serious allegations are made.

• Charges of “abetting terrorism,” “waging war against the country” against Fahad Shah quashed:

On November 17, the Jammu and Kashmir High Court granted bail to Peerzada Fahad Shah, Kashmiri journalist and editor of the Kashmir Walla. The court quashed the charges of “abetting terrorism,” “waging war against the country,” and “promoting enmity” that Shah had been booked under the UAPA. In February of 2022, Shah was arrested by the police in relation to an alleged “incorrect reporting” on his portal regarding an encounter in Pulwama wherein three militants, including a top commander, had been gunned down. Shah still remains in jail as he continues to face trial under Section 18 of the UAPA. Finally, charged were quashed against Fahad Shah on November 17, 2023 and he was released from jail on November 23, 2023.

• Being a critic of government no ground to detain a person, detaining authorities apply no mind:

On November 19, the Jammu & Kashmir and Ladakh High Court quashed the detention of Sajad Ahmad Dar, a Kashmir-based journalist, while criticising the tendency of the authorities to detain persons for simply being the critics of the government. The High Court termed such detentions to be an abuse of the preventive detention law. Dar had been under detention since January 16, 2022 under the Jammu and Kashmir Public Safety Act (PSA). While detaining Dar, the detaining authorities had accused him of tweeting and making such controversial statements that promoted enmity and were prejudicial to maintenance of public order and security of the State.

In a judgment quashing the FIR, the High Court bench comprising Chief Justice N. Kotiswar Singh and Justice MA Chowdhary observed that Dar had not been provided with the relevant documents required under law to make an adequate representation against his detention. The court had further noted that there were no specific allegations made against Dar to show that his activities could be attributed to be prejudicial to the security of the State. Observing this, the Court found the allegations to be vague and general and without any specific instance to show that Dar had been working against national interests. Following the aforementioned observation, the bench of the High Court declared unequivocally that an individual cannot be imprisoned solely for the reason that he criticizes the government. Finally, charged were quashed against Sajad Dhar on November 19, 2023 though he has yet to be released.

• Detention “illegal and unsustainable”, grounds of detention and other relevant documents not supplied to detenu:

On December 7, the detention order against Aasif Sultan, who had been detained under the Public Safety Act (PSA) since April 2022, was quashed by the Jammu and Kashmir and Ladakh High Court. In the judgment delivered by Justice Vinod Chatterji Koul, the court observed that the said detention order was illegal and unsustainable as the detaining authority failed to provide Sultan with all the relevant material on which the order was based. It was noted by the court that only five leaves of the relevant documents had been provided by the authorities to Sultan, violating his rights under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978. Notably, crucial documents such as copies of First Information Reports (FIRs) and statements had not been supplied to the detenu.

Sultan, a journalist working for the Kashmir Narrator, was arrested in August 2018 and booked under various charges, including sedition and criminal conspiracy. He was granted bail in these cases, but was subsequently re-arrested and detained under the PSA in April 2022.

• ED cannot keep people under pre-trial detention for so long:

On December 8, the Supreme Court granted bail to Pernod Ricard India regional head Benoy Babu in connection with a money-laundering case arising out of the alleged Delhi excise policy scam. A bench of Justices Sanjiv Khanna and SVN Bhatti stated that that the Enforcement Directorate (ED) cannot keep someone behind bars for 13 months with no charges being framed. Notably, the same bench had denied bail to former Delhi deputy chief minister. The case arose out of a first information report registered by the Central Bureau of Investigation (CBI), alleging that officials of the Delhi government had connived to grant liquor licenses to certain traders in exchange for bribes. The central agencies’ case is that the excise policy was tweaked and the profit margins changed to benefit certain traders.

Judgments granting interim protection-

This year saw many journalists, activists and lawyers being booked by the state for exercising their rights. A common thread between the ones targeted was that these people had voiced their opinions against state policies or agencies backed by state. In most of these cases, the Supreme Court came to the rescue of the ones being booked and provided them interim protection from coercive actions.

• Protection to independent Assam MLA Akhil Gogoi from arrest

On February 21, the Supreme Court has granted protection to Akhil Gogoi, an independent MLA from Assam, against arrest in a case related to the anti-Citizenship Amendment Act (CAA) protests and alleged Maoists links, which was being investigated by the National Investigation Agency (NIA). The legislator, who had reportedly been outspoken against the central government during the anti-CAA protests, had approached the Supreme Court against the February 9 ruling of the Gauhati High Court, which had allowed the special NIA court in Assam to proceed with framing charges against him in one of the two cases.

• Protection in sedition case against lawyer who accompanied fact-finding team to Manipur

A three membered team of National Federation of Indian Women, associated with the Communist party, had gone to violence struck state of Manipur in the month of July. The state had been under the tight grip of ethnic violence from May 3, 2023. After the investigation, a news conference was held in Imphal on July 1 and a press release with the team’s findings was also released. The said the NIFW team had come to the conclusion that the State was behind several violent episodes in Manipur, and thus termed them to be “state sponsored”.  Following this, on July 8, the Manipur Police had filed a FIR, charging advocate Deeksha Dwivedi and NIFW representatives with sedition, defamation, making assertions prejudicial to national-integration and, other related offences. On July 11, the Supreme Court had granted interim protection to Dwivedi.

• Protection to Editors Guild of India after multiple FIRs filed for Manipur Reportage

On September 6, the Supreme Court granted interim protection from arrest to four members of the Editors Guild of India who were facing face multiple FIRs filed by Manipur police. These FIRs had been filed against the EGI after a fact-finding report had been published by the members on the ethnic violence that has shaken the north-eastern state of Manipur. The Chief Minister of Manipur N Biren Singh had told media that his government had filed an FIR against the president and 3 Guild members for “trying to incite ethnic clashes”. The Chief Minister has earlier labelled the guild as anti-national and anti-state.

• Protection to two journalists from Gujarat police arrest over article against Adani Group:

On November 3, a Supreme Court bench comprising Justices BR Gavai and Prashant Kumar Mishra granted interim protection from arrest to journalists Ravi Nair and Anand Mangnale, OCCRP South Asia editor. The two had moved the Supreme Court challenging the summons issued against them by the Ahmedabad crime branch, asking them to appear in person for questioning with respect to the police’s “preliminary probe” into their article published on the Organized Crime and Corruption Reporting Project (OCCRP) website. The article was reportedly critical of the Adani group.

Where courts faltered as did the right to personal liberty, in 2023

While denial of bail, unless absolutely made out, should not be the rule in any democratic country, and denial should be the rule when offences against vulnerable sections are made out, here are two judgments that reflect a regressive trend.

In one, bail was granted to a vigilante allegedly accused of brutally killing a Muslim man. In the second, another man was denied bail, even when the accusations against him were not made out, especially enough to justify the charge under a draconian law. This begs the question, how and why are there disparate standards applied in granting bail especially when the law lays down that only and especially in cases of murder, can and should bail be denied?

• Bail to cow vigilante Puneeth Kerehalli, accused of killing a Muslim man:

On April 1, the Karnataka High Court granted conditional bail to cow vigilante murder accused Puneeth Kerehalli and four others who were arrested in connection with the murder of a Muslim man named Idrees Pasha. They had been arrested on April 5 as they were suspected of brutally lynching to death a Muslim man on suspicion of cow theft in Karnataka’s Ramanagara district. Kerehalli and other accused were booked on charges of murder, assault, criminal intimidation, wrongful restraint and intentional insult to provoke breach of peace. All accused are known to be associated with Rashtra Rakshana Pade, founded by Kerehalli with links to supremacist Hindutva outfits. Notably, they had been denied bail by the trial court, after which they had moved the high court.

• Denial of bail to Manish Sisodia even after absence of any creation of proceeds of crime:

On October 30, a Supreme Court bench comprising Justices Sanjeev Khanna and SVN Bhatti denied bail to former Delhi deputy chief minister and Aam Aadmi Party leader Manish Sisodia’s in the Enforcement Directorate case. The CBI arrested Sisodia on February 26, charging him with taking a bribe for tweaking the excise policy of the Delhi government to favour a liquor lobby. On March 8, the ED formally charged Sisodia under the Prevention of Money Laundering Act (PMLA).  Since then, Sisodia has been in prison, having had his bail denied by the Delhi High Court and the lower courts.

This particular verdict rejecting bail plea of Sisodia is likely to have an adverse impact bail jurisprudence generally, especially grant of bail under the dreaded PMLA.

While ironically, in his judgement, Justice Khanna had raised “some doubts” about some of the charges levelled by the ED and yet, he refrained “from delving… in depth and detail into some of the legal questions arising in the matter” while denying Sisodia bail. While the bench during the widely publicised hearings in the case, had often commented that it found no substance or strength in the ED’s case against Sisodia, they still provided to deny him his personal liberty. The order simply stated that Sisodia could file a fresh bail application in this case if the prosecution did not complete the trial by February 2024. Sisodia, has been in jail since February 2023. In effect, the bench ensured that Sisodia is not let out on bail before completing at least a year behind bars, without trial.

Justice Delayed is Justice Denied

‘The Truth Will Out’

A political prisoner can be defined as someone who has been imprisoned because that person’s actions or beliefs are contrary to those to their government. As per Assistance Association for Political Prisoners, a political prisoner is anyone who has been arrested because of their perceived or real active involvement or supporting role in political movements. The arrest of such people can be associated with political motivation, regardless of the laws they have been sentenced under.

India does not recognise political prisoners. In the past few years, we saw the invocation of draconian union and state laws such as UAPA, PSA, NSA and PMLA being increasingly invoked against activists, students, journalists, writers, lawyers, human rights defenders, etc. for speaking or writing against state policies. The mindless application of these laws saw many (and in majority) Muslim, Dalit and Tribal activists being incarcerated by the state without any hope for trials.

Throughout this year, we saw many such cases of political prisoners and human rights defenders awaiting bail and personal freedom, being mentioned before the Supreme Court and High Court, yet going unheard. These have been adjourned for long periods of time for no particular reason. As a result several academics, youth leaders and advocates, in 2023, continue to languish behind bars as under trials in our overcrowded jails, booked under charges that are yet to be proven.

Enduring prolonged incarceration due to excessive delays in court proceedings

• Umar Khalid:

In September, Senior Advocate Kapil Sibal, appearing for Khalid, had appeared before a Supreme Court bench of Justices Bela Trivedi and Dipankar Datta had said that he would, in a matter of twenty minutes show that there is no case against Khalid.

“I can demonstrate in twenty minutes that there is no case at all,” Sibal had said.

The bench was hearing the bail application of former JNU scholar and activist Umar Khalid in connection with the Delhi riots larger conspiracy case. He had been behind bars for over three years, since September 2020, awaiting his trial under the UAPA for his alleged involvement in the larger conspiracy surrounding the communal violence that broke out in February 2020 in the national capital. The hearing had been adjourned on that day.

On November 29, a separate bench comprising Justices Bela M Trivedi and Satish Chandra Sharma adjourned the hearing on the bail plea for Khalid to January 10. His bail plea had been pending before the Supreme Court since the month of May 18, 2023 when notice was issued on his special leave petition against the Delhi High Court’s denial of bail filed on April 16, 2023. This has, since, suffered multiple adjournments.

• Shoma Sen:

On December 6, a Supreme Court bench of Justices Aniruddha Bose and Augustine George Masih was hearing a special leave petition filed by Shoma Sen challenging a January 17 order of the Bombay High Court, by which it directed her to approach the special court trying her case, for bail. Sen is an English Professor who has been lodged in jail since June 2018 for offences under the UAPA in connection with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, and for having alleged links with the proscribed outfit, Communist Party of India (Maoists).

The hearing in Sen’s case was scheduled for hearing on December 7, but owing to a change in the composition of the bench, will now only be on January 10.

• Jyoti Jagtap:

On December 7, a Supreme Court bench comprising Justices Aniruddha Bose, Sudhanshu Dhulia and Augustine George Masih adjourned the matter of Jyoti Jagtap’s bail plea to the third week of January, after Shoma Sen’s regular bail plea has been heard. Jagtap is an anti-caste activist and musical performer who has been incarcerated as an under trial since September 8, 2020. She is also an accused in the Bhima Koregaon–Elgar Parishad violence case and has been charged under the UAPA.

• Delhi riots Conspiracy case:

On November 1, it was announced that the bail pleas of Sharjeel Imam, Khalid Saifi and other persons accused in the Delhi riots “larger conspiracy” case will be heard afresh by the Delhi high court in the year 2024. A special bench headed by Justice Siddharth Mridul, who has now been elevated as the chief justice of the Manipur high court, had reserved its order in three cases – including the bail pleas of Imam, Saifi, Gulfisha Fatima, Meeran Haider, Shadab Ahmed, Athar Khan, Shifa ur Rehman and Salim Khan; and the Delhi police’s appeal to cancel the bail granted to accused Ishrat Jahan. Since the elevation of Justice Mridul, a division bench of Justice Suresh Kumar Kait and Justice Shailender Kaur will start hearing the appeals fresh from January 2024.

• Mahesh Raut:

On September 21, five years after Mahesh Raut, a 36-year-old tribal rights activist, was arrested for his alleged role in the Elgar Parishad case, the Bombay high court had granted him bail. The High Court bench comprising Justices A.S. Gadkari and Sharmila Deshmukh had expressed the view that many sections of the UAPA applied against Raut were not tenable. The court also took his long incarceration into consideration and the fact that Raut has no criminal antecedents, the division bench had granted him bail.  However, a week’s stay had been granted against the application of the HC’s judgment on the request of NIA so as to have time to appeal in the Supreme Court. Several weeks have elapsed and yet the appeal continues to be pending before the Supreme Court bench of Justice Bela Trivedi while Raut continues to be incarcerated in jail.

• Prabir Purkayastha and Amit Chakravarty

On October 3, NewsClick founder and journalist Prabir Purkayastha and its human resources head Amit Chakraborty were arrested by Delhi Police Special Cell under the charge of UAPA. Multiple raids had been conducted at the Newsclick offices and the homes of associated journalists following allegations that the news organisation received money to spread Chinese propaganda. A plea had been filed by the two arrested against their arrest under the anti-terror law along with an interim bail for Purkayastha on medical grounds. Regular bail pleas for both have also been filed. In November, a bench of Justices BR Gavai and Prashant Kumar Mishra had adjourned the hearing stated that it would hear the petition immediately after the Diwali break. The petitions are yet to be heard and are likely now to come up in January 2024 after the winter break.

The ones who bail petition is yet to be heard in the courts-

Many other names, such as journalist Rupesh Kumar Singh, Kashmiri journalist Irfan Mehraj and Kashmiri human rights activist Khurram Parvez do not find themselves on the above list as their bail pleas are yet to be mentioned in the Courts. In September of 2023, anti-CAA activist Shadab Ahmad, incarcerated for over three years in cases related to the 2020 Delhi pogrom, had reportedly developed abdominal tuberculosis. His family had been appealing for his release, to no avail.

In Odisha, 9 Dalit-Adivasi activists were booked under UAPA for leading the Niyamgiri movement. The Niyamgiri movement is a grassroots people’s movement against big corporations. The FIR against them came on the same day that marks the International Day of the World’s Indigenous People. There is no information available for the status of their bail or trials.

Out of the 16 arrested in the Bhima Koregaon violence case, six of them (including Raut) have been granted regular bail from either the High Court or the Supreme Court. One of the accused, Father Stan Swamy, an 84-year-old Jesuit priest and tribal rights activist, died of failing health in July 2021 while in judicial custody. Gautam Navlakha had been under house arrest. As many as eight of the accused still remain in jail, including activists Sudhir Dhawale, Rona Wilson, Hany Babu, Surendra Gadling, Professor Shoma Sen, Ramesh Gaichor, Sagar Gorkhe and Jyoti Jagtap.

Many miles to go…..

The list of political under trials and political prisoners is not exhaustive and every state, regardless of political affiliations uses the ‘jail stick’ to curtail protest and individual freedoms. As numbers of under trials in India’s jail touch close to 5,00,000 with conditions in prisons including the grant of effective legal aid often being a misnomer, an independent judiciary is required to step in to curb repressive state acts.

While several judgements provide guidelines and directives to district and trial courts to grant speedy bail after a correct understanding of the law –even flagging the urgent need for a Bail Statute (law), even India’s constitutional courts have often faltered in upholding freedom and liberty. Individual aberrations or political considerations, these verdicts have resulted in a mixed jurisprudence on the right to every Indian to be granted bail.

2023’s journey reveals a bumpy road towards personal liberty.

Related:

How fundamental are our rights? An examination of the judgement in the Marriage Equality Case: SC

How difficult is it to obtain Bail under the UAPA?

What does it take to secure bail under UAPA?

Mere association or support to terror organisation, not sufficient to attract UAPA: SC

The post India’s constitutional courts navigate challenges in upholding personal freedom over incarceration appeared first on SabrangIndia.

Faridabad police sources however told The Times of India that Bittu (45), however, remained “under house arrest” with a team from the crime deployed at his residence.
The FIR is the latest in a long list of cases filed against Bittu in a month – 4 in Dabua, Mujesar and Saran police stations of Faridabad for controversial statements and social media posts, according to police sources. He has obtained bail in all of them.

The July 31 Facebook video, in which he is heard saying “phool mala taiyyar rakho (keep flowers and garlands ready)” and “tumhara jija aa raha hai (your brother-in-law is coming)” was, in a communally charged atmosphere, perceived as a dare and a reference to cow vigilante leader Mohit Yadav alias Monu Manesar.

All these hate posts that flowed online from members of two communities largely centred around the speculated presence of Monu at the religious yatra in Nuh. Bittu’s video was uploaded around an hour before the yatra on Monday and was widely circulated.

The day before, on July 30, Monu had also posted a video on his Instagram account, urging people to join the religious yatra in Nuh. Monu is one of the accused in the murder case registered in Rajasthan after the bodies of two men, Nasir and Junaid, were found inside a burnt Bolero in Bhiwani in February this year.

According to police sources, 22 FIRs for alleged hate speeches have been registered in Gurgaon, Nuh and Faridabad since the July 31 clashes. TOI had reported on three of these FIRs on Friday that have been filed against Shahid, Aadil Khan Mannaka alias Birjubhai and a Facebook page called ‘Shayar Guru Ghantal’. Another FIR was registered on Friday against Faridabad resident Sajid Qassar and two others for a video. The complaint was filed by a resident of Jawahar Colony who said he got the Facebook clip as a WhatsApp forward.

A Faridabad police spokesperson Sube Singh told TOI the FIR against Bittu was filed at Dabua police station on August 1 on the basis of a complaint by a cop under IPC section 295A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious belief).

In the complaint, sub-inspector Satish Kumar said Bittu and others were “inciting religious animosity” and made statements “to hurt religious sentiments” of a community.
“He was arrested for questioning and at present he is ‘nazar band’. He has been asked not to leave the city while the investigation is under way,” the police spokesperson said.
A senior police officer said Bittu was granted bail because the offence has a jail term of less than seven years.

The 45-year-old, a bachelor, is involved in wholesale trading of vegetables at the Faridabad mandi and rents carts to vendors there. On his social media account, Bittu claims to run a ‘Bajrang Force’ that works for “cow protection”. He has earlier posted photos with Monu Manesar as well.

Speaking to TOI over a phone call on Friday, august 4, Bittu reportedly said that he posted the video on Facebook at 11.30am and had reached a temple in Nuh around 12.30pm on July 31. “How is it possible that in less than an hour of my video, thousands of people armed with deadly weapons assembled in Nuh and started rioting?” he asked, referring to the mob that attacked the yatra in Nuh.

He said his statements in the video were “answers” to clips on social media that threatened to teach him a lesson. “Many objectionable videos were uploaded from Nuh, but no one is talking about them,” he claimed.

Related:

CJP petitions NCM and DGP, Haryana as anti-minority violence spreads takes grip in the state

Lives lost in Nuh violence, a failure on the part of the Haryana police and government?

Nuh Haryana: Who cast the first stone?

Communal violence erupts in Nuh, Mewat, five killed, provocations by VHP-Bajrang Dal continue

Nuh Clashes planned and coordinated, more such violence likely before 2024 Polls: Satyapal Malik

Union MOS Home questions arms allowed in ‘religious’ procession at Nuh, Haryana: Rao Inderjit Singh

The post Bail not Jail for Bajrang Dal man, Bittu who posted a provocative video on day of Nuh clash appeared first on SabrangIndia.

“Allegations are serious but that does not mean bail cannot be granted. While forming our opinion of granting bail, we noted that he was earlier convicted of offences under 1967 Act. Hence, we propose to impose appropriate conditions while on bail. We set aside impugned order and release the appellant on bail,” the Court directed, as provided by the LiveLaw.

Justice Bose also took into consideration that Gonsalves and Ferreira have been in custody for more than five years. Gonsalves and Ferreira have been lodged in Mumbai’s Taloja jail since 2018.

As conditions for the bail, the court ordered that Gonsalves and Ferreira will not be allowed to leave Maharashtra till the trial in the case is over. The two activists will also have to surrender their passports. They have also been directed to use one mobile each and let the National Investigation Agency (NIA), which is probing the case, know their addresses, according to Live Law.

“They can have only one mobile connection during the period,” the court said added. “Their mobile phones should be charged round the clock and the location must be kept on and shared with the NIA [National Investigation Agency] officer for live-tracking. They shall also report to the investigating officer once a week,” as provided by the LiveLaw.

The bench further stated that if there is any breach of conditions, it will be open to the prosecution to seek cancellation of bail. Furthermore, if any attempt is made to threaten witnesses, the prosecution can move court to cancel bail, the Supreme Court added.

Notably, Justices Aniruddha Bose and Sudhanshu Dhulia had reserved the judgment in the current case on March 3, 2023.

 Background of the case:

Vernon Gonsalves and Arun Ferreira were among the sixteen activists, academics and lawyers who had been arrested in relation to the caste violence that broke out on January 1, 2018, in Bhima Koregaon village near Pune. The police had purported that the accused persons were involved in organising the Elgar Parishad event on December 31, 2017, to commemorate the 200th anniversary of the battle of Bhima Koregaon. The police had also alleged that inflammatory speeches made at the Elgar Parishad conclave had reportedly triggered violence the next day near the Koregaon-Bhima war memorial on the outskirts of the western Maharashtra city.

They have been jailed under the Unlawful Activities Prevention Act since the past five years, reportedly without any reliable evidence. The sixteen arrested persons had also been accused of conspiring to kill Prime Minister Narendra Modi and of having links with the banned Communist Party of India (Maoist).

In May 2022, Gonsalves and Ferreira, along with six others, had moved the Supreme Court, filing pleas against Bombay High Court’s December 2021 judgment refusing them default bail. Notably, on December 1, 2021, eight accused persons in the case had been refused bail by the High Court, while another co-accused Sudha Bharadwaj was granted bail. The High Court had distinguished Bharadwaj’s plea from the other eight and noted that Bharadwaj’s application for default bail was pending when an application was made by the Pune Police seeking an extension of time to file the charge sheet.

The eight of whom were denied bail had once again petitioned the Bombay High Court contending that there was an error in the December 2021 judgment and consequently, prayed that they be granted bail. However, on May 4, 2022, the High Court had rejected that plea too, stating that there was no factual error in the December 2021 judgment as claimed.

This had led to the current appeal for bail before the Supreme Court.

Notably, in August 2022, the Supreme Court asked the special NIA court to decide on framing of charges against Gonsalves within 3 months, while refusing to grant any interim relief at the time. Gonsalves’ bail plea was, however, kept pending before the top court. The Court had directed the special court to segregate Gonsalves’ trial from that of the other accused who are absconding.

Related:

Bail order cannot be cryptic and casual, needs to be backed by reasons considering vital aspects: Supreme Court

INDIA versus Bharat’ or ‘India that is Bharat’?

Bhima Koregaon case: 5 years on, charges not framed despite repeat extensions

Bhima Koregaon case: Prof Anand Teltumbde granted bail on merits by Bom HC

Bhima Koregaon case: Justice S Ravindra Bhat recuses himself from hearing Gautam Navlakha’s plea seeking house arrest

Bhima Koregaon case: SC directs NIA court to decide on framing charges within three months

Bhima Koregaon case: SC grants Varavara Rao bail on medical grounds

Bhima Koregaon case: Supreme Court extends Varavara Rao’s interim bail until further orders

Bhima Koregaon case: Bombay HC denies bail to the three accused

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