Tag: #BailApplication

-Report by Reyanshi Bansal

It has been held by the Hon’ble High Court of Delhi in the case of Sarvesh Singh v. State NCT of Delhi that the bail application will be rejected given the nature and gravity of the offence as well as the impact of the crime on society.

The bail application was filed by the petitioner under Section 439 (a person is in “custody” as and when he surrenders to the police) and Section 482 (the High court can recall a judgment or an order which was passed without hearing a person prejudicially affected by it) of the Cr.P.C.

An F.I.R. was reported under IPC 364/48 (abduction or kidnapping order to murder) by Ramesh Chand in which he alleged that his son, Prem Kumar, went to the house of his friends, Ajay Singh and Sarvesh Singh. Then, his son’s phone was found switched off and all his efforts to find where his son was were unsuccessful.

Based on this information, a case was registered and an investigation was carried out. Evidence was found against the petitioner and Ajay Singh, because of which they were arrested and after the completion of the investigation, charges under section 302/201/120-B/34 IPC (murder, hiding evidence of a crime, criminal conspiracy, a criminal act carried out by several persons with a common intention) were framed against the accused persons.

The petitioner claimed that he was falsely implicated, he had no history of committing any criminal offence and that no recovery has been effected from the petitioner. Moreover, the petitioner argued that there was only the presence of circumstantial evidence and not an eyewitness by which the prosecution is trying to trap the petitioner. The petitioner further contends that he is arrested because of a disclosure statement of the co-accused which is not admissible in the court as evidence. No incriminating substance was found against him.

Along with this, the petitioner surrendered himself to the court after the expiry of his interim bail and never misused the liberty granted to him by the court. Furthermore, the seven-year-old son of the petitioner is not keeping well. He requested to be released on regular bail for the above-mentioned reasons.

Contrary to the statements given by the petitioner, the prosecution opposed the bail application for several reasons. The state provided CCTV footage of the petitioner and co-accused in uniform carrying the dead body of the deceased Prem Kumar, a compact disc of a conversation between the petitioner and the daughter of the complainant, Kiran and two witnesses. One of the witnesses was the driver, Narender who deposed against the accused and revealed that the iron box was kept in the car. The other, Islamuddin, identified Sarvesh and Ajay Singh by their name plates who came to purchase the Tin box from his shop. The prosecution also contended that just because the petitioner made an interim bail, it does not entitle him to the grant of regular bail, more so, considering the merits of the case and the
heinous crime. As far as the uneasiness of the petitioner’s son goes, his wife is there to look for the child.

The court quashed the application for regular bail and held that:

“In view of the discussion mentioned hereinabove, looking into the nature and gravity of the offence, its impact on the society and severity of the punishment of the offence, no ground for bail is made out, the bail application is, therefore, dismissed. Petitioner is directed to surrender forthwith. The bail application is disposed of accordingly.”

–Report by Nistha Sahoo

Kerala High Court on Monday approved the bail in the case of Vishnu vs the State of Kerala. Justice Bechu Kurian Thomas delivered a bail order for Vishnu sanctioning conditions in accordance with it. The petitioner was charged with the crime of rape against a minor.

PETITIONER’S CONTENTION:

The petitioner contented the entire prosecution’s allegations of rape to be fallacious and the incident to be fictitious.
The learned counsel, Sri Manu Harshakumar lashed out against the allegations by putting forth the disapproval of calling the victim a minor. He also added that the victim herself admitted the fact that her workplace i.e., the spa center encouraged illicit activities.

Defending one’s own client, petitioner counsel submitted that, on the verge of this matter, the accused is being the scapegoat. He solicited that further detention of the petitioner is inequitable.

RESPONDENT’S CONTENTION:

The respondent contended that the petitioner is alleged to have committed a heinous crime against a minor and
he ought not to be dismissed on bail. The learned Public Prosecutor, Smt. M.K. Pushpalatha claimed that releasing the petitioner on bail would be a prejudice against the legitimate investigation. She exclaimed that there is the probability of intimidation of witnesses and the possibility of the petitioner influencing them as well.

DECISION OF THE COURT

The High Court examined the victim’s statement as well as the medical report. With due regard to the circumstances stated under Section 164 of Cr.P.C., Hon’ble Justice Bechu was satisfied with the contentions raised by the petitioner’s counsel. It was approved that the continued detention of the petitioner was unwarranted. The investigation has reached a final terminal therefore the petitioner is entitled to be released on bail. The court put forth some conditions:

1. Petitioner shall be declared on bail provided a bond for Rs50000/-.
2. The Petitioner must confront the Investigating Officer on demand.
3. The Petitioner ought not to try to intimidate the witnesses; nor shall he tamper with the available evidence or contact the victim or her family members.
4. Petitioner must not commit any similar offense while he is on bail.
5. Petitioner should not leave India without the permission of the Court having jurisdiction.

The bail application was allowed.

–Report by Monishka Allahbadi

Kerala High Court rejected a bail application in MONSON MAVUNKAL V. STATE OF KERALA & ANR considering the gravity of the accusations against him and his criminal record. Justice Bechu Kurian Thomas ruled that the prosecution’s worries that the accused would influence victims and witnesses and tamper with the evidence were justified and that his release on bail could hurt the prosecution’s case.

The prosecution has filed that the victim, in this case, had been raped by the petitioner. The victim who was a staff of the accused was raped on different dates from 11th January 2020 to 24th September 2021 in the house of the petitioner.

The petitioner contended that he has been in custody for a long period of time and the case of rape cannot be prima facie made against him. There can be a possibility of consensual sex. It was further contended that the victim was questioned earlier regarding the petitioner before even registration of the rape case, during which the victim did not mention anything about rape. This conduct shows falsity in the survivor’s case.

The prosecution opposed the bail application by saying that the nature of the offense is serious and that on release, the petitioner can influence the victim as well as witnesses. The witnesses, in this case, are the mother and brother of the victim who was also employees of the petitioner.

The court observed that although the contentions of the petitioner can be appreciated the fact that the petitioner was admittedly involved in several crimes, including three rape instances cannot be ignored. A Trial for raping a minor is already underway. The said minor has also been alleged to be raped even after turning 18, and this crime is connected to the alleged obnoxious behavior. The court found merit in the arguments of the prosecution. The court observed:
“The criminal antecedents of the petitioner also stare against him in granting bail. Several cases are alleged to have
been committed by him and therefore, such antecedents cannot be ignored while considering the application for bail.”

The court further relied on the case of P.Chidambaram v. Directorate of Enforcement [(2020) 13 SCC 791] and Prahlad Singh Bhati v. NCT, Delhi and Another [(2001) 4 SCC 280], wherein it has been held that each case has to be decided based on the circumstances of the case. The circumstances, in this case, lean against the petitioner and it was observed:

“There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and
circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. The nature of accusation and the severity of the punishment, apprehension of the prosecution about influencing the witnesses, the circumstances that are peculiar to the accused and the larger interest of the public all lean against the grant of bail to the petitioner.“

The bail was denied as there was no merit in the application.

-Report by Monishka Allhabadi

The Karnataka High Court recently ruled that an order granting or refusing regular bail must be a speaking order, and courts must consider all evidence on record before reaching a decision. While overturning the Special judge’s order, the court also stated that the Court is required to provide reasons for granting or denying bail, particularly in cases involving serious offences. When a Court hearing a bail application fails to consider all relevant factors, an appellate Court may rightfully overturn the order.

In NELSON RAJ v. THE STATE OF KARNATAKA, the accused had been charged with violating Sections 302, 120B, and 149 of the IPC, as well as Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. As a result, the appellant filed a petition before the Special Court under Section 439 of the Cr.Pc., requesting that they be released on bail. Following that, the Special Court denied the bail request.

Three Criminal Appeals were filed under Section 14(A) of the SC/ST (POA) Act, challenging the special court’s order and praying for an order of regular bail under Section 14(A)(2) of the SC/ST (POA) Act.

CONTENTIONS OF THE APPELLANTS:

The appellants argued that after the appellants were apprehended, the alleged eyewitnesses did not identify them. Their statements recorded under Section 164 of the Cr.P.C are contradictory. It is also claimed that some names of people who have been accused of the offence are not even mentioned in the FIR. Furthermore, the appellants’ liberty has been restricted due to their detention in judicial custody.

RESPONDENTS CONTENTION:

They asserted that due to the heinous nature of the offence committed and the presence of eyewitnesses to the incident in question, the learned Special Judge has correctly denied the bail petition. As a result, it is not a suitable case to release the appellants on bail.

DECISION:

The Bench noted some well-established primary considerations in deciding whether to grant bail. The Bench went on to say that if a court hearing a bail application fails to consider the relevant factors, an appellate court may rightfully overturn the order.

“Bail orders, whether granting or refusing, cannot be issued mechanically or in a cryptic manner without taking into account the material facts of the case. The court must provide reasons for granting or denying bail, especially in serious cases.“

While overturning the order, the HC held

“that when a court considers an application for bail, the Court is required to consider all contentions raised and pass an appropriate order. It is necessary to examine the evidence on record that appears to link the accused to the crime, and based on that evidence, the Court can determine whether a prima facie case has been established and assign reasons for either granting or rejecting a bail petition.”

Furthermore, the court directed the special judge to rehear the parties involved and issue orders on the bail application in accordance with the law as soon as possible.

On Friday, the government of Maharashtra opposed the bail request of activist Sudha Bharadwaj, who was arrested in the Elgar Parishad case of the Mumbai High Court, arguing that he lacked the right of the lower courts. The accusation of jurisdiction is wrong. Sudha Bharadwaj, who has been detained since September 2018, applied for bail because the court hearing the prosecution was initially not authorized to do so.

Advocate General Ashutosh Kumbhakoni argued that although the case was referred to under the Unlawful Activities (Prevention) Act (UAPA), the 2020 investigation was taken over by the National Investigative Agency (NIA) of police. The special court only took over the NIA afterward, he said. Until then, the court of appeal in Pune will be responsible, he added.

Special tribunals will be set up under the NIA to “try” matters investigated by the NIA that “do not include pre-trial hearings,” Kumbhakoni said. “The petitioner’s argument is wrong,” confirmed the Attorney General.

A division bench consisting of Judge SS Shinde and Judge NJ Jamadar will continue hearing the petition on July 23. According to Sudha Bharadwaj, the Pune court that arrested her and eight others in police custody in 2018 did not have the power to hear a UAPA case. His attorney, Yug Chaudhry, argued in previous hearings that a trial judge can only take cognizance of UAPA crimes following specific instructions from the district judge.

Police alleged that “incendiary speeches” held at the Elgar Parishad conclave in Pune on January 1, 2018, led to caste violence at the Bhima Koregaon Breed Memorial in the district, and the conclave was supported by Maoists. Activist Stan Swamy, arrested in the case last year, died in hospital earlier this month.

-Report by MANASWA SHARMA