Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Posted on November 10, 2020 by ShadesOfKnife

Supreme Court held that, the default bail that is available to an accused person u/s 167(2)(a) of CrPC, is part of the fundamental rights available to him/her under Article 21 of Constitution of India.

From Para 28,

A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.

But then from Para 29,

…

We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

…

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Citations : [(2020) SCC Online SC 824]

Other Sources :

https://indiankanoon.org/doc/10807134/

https://www.indianemployees.com/judgments/details/bikramjit-singh-versus-the-state-of-punjab

Subhash Bahadur @Upender Vs State (NCT of Delhi) on 6 Nov 2020

Posted on November 10, 2020 by ShadesOfKnife

Delhi High Court held that there is no need for filing an formal application seeking default bail, once the conditions set out in section 167(2)(a) are made out, as continued confinement violates fundamental right under Article 21.

From Paras 32, 33 and 34,

32. A plain reading of the Proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail “if he is prepared to and does furnish bail”. Thus, in cases where the statutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein – that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application.

33. It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of law [See: Natbar Parida Bisnu Charan vs State of Orissa: (1975) Supp SCR 137 and Union of India vs Thamsharasi: (1995) 4 SCC 190]. As is apparent from the language of Proviso (a) to Section 167(2) of the Cr.PC, the power of a Court to remand an accused to custody pending investigation is circumscribed and stands denuded if the period of sixty days or ninety days, as the case may be, has expired and the accused is ready and willing to furnish bail.

34. It is also necessary to bear in mind that courts have consistently leaned to resolve the tension between form and substance, in favour of substance and have used the interpretative tools to address the substance of the matter. In Ajay Hasia Etc v Khalid Mujib Sehravardi & Ors:1981SCR(2) 79 had, in an altogether different context, observed that “where the constitution fundamentals vital to maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form”. Thus, if in substance the essential conditions as set out under the Proviso (a) to Section 167(2) of the Cr.PC are met and complied with – that is (i) if the investigation has not been completed within the period of sixty or ninety days, as the case may be, from the date of arrest of the accused; and (ii) if the accused is prepared to offer bail – then there would be no justifiable reason to detain the accused.

Subhash Bahadur @Upender Vs State (NCT of Delhi) on 6 Nov 2020

More Gyan here.

Default or Statutory Bail under Code of Criminal Procedure

Posted on November 10, 2020 by ShadesOfKnife

Code of Criminal Procedure contains lot of provisions that give powers to Police/investigating agencies to take an accused person into their custody (police custody in the lockup cell of a Police station, where lockup deaths happen). At the same time, time limits were placed on such custody for inquiry/investigation so as to protect the fundamental rights of accused. When such time limits expire, Courts are empowered (actually duty-bound) to order for release of such accused at the expiration of such statutory time-limits.

Here are the provisions.

As per subsection (2) of section 167 CrPC, the following situation allows for default bail for an accused.

(2) XXXXX:
Provided that—
(a) XXXXX, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and,

on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

Also, obviously

Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

As per subsection (2A) of section 167 CrPC, the following situation allows for default or statutory bail for an accused.

(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and
thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where no order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):

Some helpful cases laws are here.

Index of all Bail matters is here.

AP Suryakrasam Vs State of Tamil Nadu and Ors

Posted on November 9, 2020 by ShadesOfKnife

High Court of Madras observed that, punishment for corrupt practices should be increased to include death sentence also. Wonderful step!

From Para 11,

11. Though the learned Advocate General has referred to about the prevailing Act, namely, the Prevention of Corruption Act and its procedures, the menace of corruption has not come down. Prevention of Corruption Act is a Central Act, enacted by the Central Government as early as in the year 1947, followed by several amendments, with the latest amendment in the year 2018, giving elaborate procedures to be followed along with punishment and penalties. People are compelled to accept corruption as normal one. Corruption has become deep rooted and has spread like Cancer. Every day, it is reported in the media that many officials are caught red handed, while taking bribes. Hence, the punishment needs to be enhanced. Therefore, this Court is of the view that there should be a re-visit and the Act should be strengthened and stringent penalties should be imposed to curb the menace of corruption. The Central Government may consider imposing punishment, such as, “hanging” or “death penalty”, for corrupt practices or for demanding and accepting bribes, like in China, North Korea, Indonesia, Thailand and Morocco. Hence, this Court suo-motu impleads,
i) the Secretary to Government, Ministry of Home Affairs, Union of India, North Block, New Delhi;
ii) the Secretary to Government, Ministry of Law and Justice, Union of India, Shastri Bhawan, New Delhi; and
iii) the Secretary to Government, Ministry of Parliamentary Affairs, Union of India, Parliament House, New Delhi
as party respondents / respondents 5 to 7 to this proceedings.

AP Suryakrasam Vs State of Tamil Nadu and Ors on 02 Nov 2020

Hansa Research Group Pvt Ltd Vs Sachin Vaze and Ors

Posted on November 9, 2020 by ShadesOfKnife

Bombay High Court directed the Respondents not to harass the petitioners by calling them daily. Respondents agreed to call the petitioners for inquiry twice in a week.

Hansa Research Group Pvt Ltd Vs Sachin Vaze and Ors on 07 Nov 2020

Here is the Writ petition:

Hansa Research Group Pvt Ltd Vs Sachin Vaze and Ors

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 09 Nov 2020

Posted on November 9, 2020 by ShadesOfKnife

Division Bench of Bombay High Court, while denying interim protection from arrest to Arnab Goswami, held that,

From Para 45,

45. The principle stated therein will equally apply to the exercise of this Court’s power under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure while considering the applications for bail since the petitioner is already in Judicial custody. The legislature has provided specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure.

and from Para 70,

70. In our opinion, the petitioner has an alternate and efficacious remedy under section 439 of the Code of Criminal Procedure to apply for regular bail. At the time of concluding the hearing of Applications, we had made it clear that if the petitioner, if so advised, to apply for regular bail under section 439 of the Code of Criminal Procedure before the concerned Court, then, in that case, we have directed the concerned Court to decide the said
application within four days from filing of the same.

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 09 Nov 2020

Here is the Bail application

Arnab Bail Application

Dr Nallapareddy Sridhar Reddy Vs State of AP and Ors

Posted on November 9, 2020 by ShadesOfKnife

AP High Court held that u/s 216, Trial Court well within it’s power to frame additional charges based on additional charge sheet filed by police, even when the case is pending pronouncement of judgment. But since the procedure contemplated was not followed by Magistrate, High Court set aside the second set of charges framed on accused and directed the Magistrate to follow the procedure contemplated u/s 217.

Dr Nallapareddy Sridhar Reddy Vs State of AP and Ors on 01 June 2017

But then, Revision-Petitioner went to Supreme Court and there also he lost.

Dr Nallapareddy Sridhar Reddy Vs State of AP and Ors on 21 January 2020

United India Insurance Co Ltd Vs Satwinder Kaur and Ors on 30 June 2020

Posted on November 9, 2020 by ShadesOfKnife

3 judge bench granted compensation to the surviving members of a fatal-accident victim, while revisting a catena of a landmark SC judgments.

United India Insurance Co Ltd Vs Satwinder Kaur and Ors on 30 June 2020

Citations :

Other Sources :

Sarmila Ghosh Vs State of Tripura and Ors on 02 Nov 2020

Posted on November 8, 2020 by ShadesOfKnife

High Court of Tripura correctly held that being critical of the government or administration is part of the rights available under the Article 19 of the Constitution of India.

The right of freedom of speech and expression would include the freedom of being critical of the public administration or authority. Abrogation or
afferent of such right need not necessarily be always direct, it can also be indirect. Any inroad into such freedom howsoever stealthily made,
constitutional court will step in.

Citation :

Other Sources :

Balaji Baliram Mupade Vs State of Maharashtra on 29 Oct 2020

Posted on November 8, 2020 by ShadesOfKnife

Supreme Court, again, highlighted the need of delivering judgments at the earliest, as the “problem is compounded where the result is known but not the reasons.”

From Para 3,

3. Further, much later but still almost two decades ago, this Court in Anil Rai v. State of Bihar – 2001 (7) SCC 318 deemed it appropriate to provide some guidelines regarding the pronouncement of judgments, expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments.

From Para 10,

10. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rai’s case (supra) and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later.

Balaji Baliram Mupade Vs State of Maharashtra on 29 Oct 2020

Citations :

Other Sources :

Shades of Knife

True Colors of a Vile Wife

Month: November 2020

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Subhash Bahadur @Upender Vs State (NCT of Delhi) on 6 Nov 2020

Default or Statutory Bail under Code of Criminal Procedure

AP Suryakrasam Vs State of Tamil Nadu and Ors

Hansa Research Group Pvt Ltd Vs Sachin Vaze and Ors

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 09 Nov 2020

Dr Nallapareddy Sridhar Reddy Vs State of AP and Ors

United India Insurance Co Ltd Vs Satwinder Kaur and Ors on 30 June 2020

Sarmila Ghosh Vs State of Tripura and Ors on 02 Nov 2020

Balaji Baliram Mupade Vs State of Maharashtra on 29 Oct 2020