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Tag: CrPC 439 – Special powers of High Court or Court of Session regarding bail

Harish Chander @ Suraj Bhatt Vs State NCT of Delhi on 06 Dec 2023

Posted on December 26, 2023 by ShadesOfKnife

A single bench judge of Delhi High Court held as follows while disposing a Regular Bail petition,

From Paras 8 to 13,

8. In the present case, this Court is of the opinion that a perusal of the statement of the victim, under Section 164 of Cr.P.C., reveals that the accused herein had introduced himself, to the complainant/mother and the victim, as a munshi of a Judge of the High Court of Delhi; and that he could get their work done i.e. get them compensation by asking the Judge with whom he was attached. Thereafter, he had insisted on procuring the nude videos of the victim, on the pretext of showing them to the Judge Sahab. victim in her statement recorded under Section 164 of Cr.P.C. The victim had also disclosed that the applicant had made her talk to ‘Judge Sahab’ on a conference call after which the applicant had asked the victim to prepare two nude videos of 15 minutes each and had also told her how to prepare such videos. Later on, he had started blackmailing the complainant and had demanded Rs. 25,000/-, for deleting the videos. He had also threatened them, that in case he will not be paid money, he will post the said videos on social media, and send these to High Court and Supreme Court. He had kept on continuously sending the videos and photographs to the family members of the victim, and had also threatened them with dire consequences.
9. A perusal of the FSL report reveals that though the mobile phone which was used for the commission of offence had been formatted, the phone had been sent for cyber forensic analysis and the Cyber Forensic Division of Forensic Science Laboratory, Delhi has given a finding that obscene images and video files were retrieved from the mobile phone in question belonging to the present accused. Thus, thanks to the advanced technology, that the investigation revealed the prima facie truth of statement of the victim. The detailed forensic report is not being reproduced or discussed in the present order, lest it affects the trial of the case, at a later stage.
10. Moreover, in the facts and circumstances of the case, it is unlikely that the mother of the victim would herself prepare the nude photographs of her daughter. Further, in light of the specific allegation that the accused herein had misrepresented to the victim that he was making her speak to a High Court Judge, and that he was working with a High Court Judge, who will ensure that compensation is granted in a pending case before a District Court when the videos will be sent to the Judge, are in themselves grave and serious allegations, which undoubtedly bring the judicial system into disrepute. It also reflects how unassuming or illiterate persons are allured in the name of the Judges for blackmailing and for commission of offences, as the present one.
11. This Court also notes that in case the present case was not registered or the truth was not brought out through police investigation and FSL report, the accused herein would have succeeded in giving an impression that the judicial system was indulging in such abhorring acts. The judicial system or the name of any judge or judicial officer used by unscrupulous persons brings disrepute to the system which cannot be allowed at any cost. This case and order would also serve as a reminder that general public should not believe unscrupulous persons and give them money, even if they are assured that they will get some work done from within the judicial system by such payment. Such persons and such acts are a threat to the judicial system which shake the faith of the community in the judicial system. The justice delivery system has to be stubbornly safeguarded from such acts and persons.
12. Considering the overall facts and circumstances of the case, the conduct of the accused, and the fact that charges are yet to be framed and the victim is yet to be examined, no ground for grant of bail is made out at this stage.
13. Accordingly, the present bail application is dismissed.

Harish Chander @ Suraj Bhatt Vs State NCT of Delhi on 06 Dec 2023

Citations:

Other Sources:

Posted in High Court of Delhi Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 439 - Special powers of High Court or Court of Session regarding bail Harish Chander @ Suraj Bhatt Vs State NCT of Delhi Regular Bail Denied | Leave a comment

P.K. Shaji Vs State of Kerala on 27 Oct 2005

Posted on July 15, 2021 by ShadesOfKnife

A division bench of the Apex Court held that a superior court always has power to give directions to lower court to pass appropriate orders. In this case, to check if the bail conditions are violated and cancel the bail.

The order of the Sessions Court shows that the learned Magistrate has been empowered to consider the question of violation of any of the conditions imposed by the Sessions Court and was given powers to pass appropriate orders. The plea raised by the appellant’s learned Counsel is that when the learned Magistrate had no such power, the Sessions Court was not empowered to invest that power in the Magistrate. We do not find any force in this contention. The superior court can always give directions of this nature and authorise the subordinate court to pass appropriate orders and the trial Magistrate would be the competent authority to decide whether any condition had been violated by the person who had been released on bail. When there is a specific direction to pass appropriate orders as if the conditions for granting bail had been imposed by the learned Magistrate himself, the impugned Order is legal and valid.

P.K. Shaji Vs State of Kerala on 27 Oct 2005

Citations : [2005 JT 9 481], [2006 AIR SC 100], [2005 SCC 13 283], [2005 SCALE 8 724], [2005 CRLJ SC 5063], [2005 SCR SUPP 4 840], [2005 CRIMES SC 4 184], [2005 SUPREME 7 2652005 AIOL 534], [2005 AIR SC 5560], [2006 SCC CRI 2 174], [2005 KERLT 4 856], [2005 CRILJ 5063], [2005 ALD CRI 2 517], [2005 JT SC 7 282], [2005 SCC 12 461], [2005 UJ 2 1136], [2006 SCC CRI 174], [2005 CRI LJ 5063], [2005 KLT 4 856], [2005 AIR SCW 5560]

Other Sources :

https://indiankanoon.org/doc/440533/

https://www.casemine.com/judgement/in/5609ae1ee4b0149711413041

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 439 - Special powers of High Court or Court of Session regarding bail Landmark Case Legal Procedure Explained - Interpretation of Statutes P.K. Shaji Vs State of Kerala Reportable Judgement or Order | Leave a comment

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Posted on March 18, 2021 by ShadesOfKnife

A 3-judge bench of Apex Court held as follows regards to default bail u/s 167 CrPC,

From Para 4,

Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed.

From Para 25,

25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence “not less than” that sentence provided for. Therefore, thewords “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable witha minimum of 10 years imprisonment.

From Para 31,

31. In the 154th Report, the Law Commission noted that the unanimous opinion of members of the Bench and the Bar, prosecuting agencies and senior police officers during legal workshops held at various places was that the investigation of serious offences punishable with a sentence of 7 years or more should invariably be undertaken by senior officers. The Law Commission concluded, as a result of these extensive discussions, that it was desirable toseparate the investigating police from the law and order police and as many as seven reasons were given for arriving at this conclusion in Chapter II of the Report.

From Paras 40 and 41,

40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and  should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.

Then finally in Paras 46 and 47,

46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to ‘default bail’ but must apply for regular bail – the ‘default bail’ chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of ‘default bail’. It would have been another matter altogether if the petitioner had not applied for ‘default bail’ for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for ‘default bail’ during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to ‘default bail’ which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce.
47. Consequently, we are of opinion that the petitioner had satisfied all the requirements of obtaining ‘default bail’ which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Citations : [2017 SCC ONLINE SC 924], [2017 ALLCC 101 287], [2017 ACR 3 2474], [2017 ALT CRL AP 3 141], [2017 CCR SC 3 371], [2017 DLT 242 79], [2017 ILR KER 3 673], [2017 JLJR 4 37], [2017 KHC 4 470], [2017 KLT 4 284], [2017 MLJ CRL 4 62], [2017 PLJR 4 53], [2017 RCR CRIMINAL 3 996], [2017 SCALE 9 24], [2017 UC 3 1756], [2017 SCC 15 67], [2018 SCC CRI 1 401], [2017 AIR SC 3948], [2017 AIC 178 75], [2018 CRI LJ 155]

Other Sources :

https://indiankanoon.org/doc/194334432/

https://www.casemine.com/judgement/in/599a9dfd4a93262f6c14fba6

https://www.indianemployees.com/judgments/details/rakesh-kumar-paul-versus-state-of-assam

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 167 - Default Bail CrPC 167 - Default Bail on Oral request or application CrPC 439 - Special powers of High Court or Court of Session regarding bail Landmark Case Legal Procedure Explained - Interpretation of Statutes Prakash Singh and Ors Vs Union of India and Ors Rakesh Kumar Paul Vs State of Assam Reportable Judgement or Order | Leave a comment

Jugal Vs State of Rajasthan on 25 Nov 2020

Posted on November 28, 2020 by ShadesOfKnife

Rajasthan High Court passed a direction to all trial Courts in Rajasthan that, in all Bail matters u/s 437/438,  a detailed report on antecedents of the accused is to be filed along with judgment.

There is no mention regarding the status of criminal antecedents of the present petitioner in the impugned order. It is often seen by this Court that the learned courts below are not specific in regard to antecedents of the accused persons, which causes delay in the disposal of the bail applications, as, if the person is not having antecedents and his antecedents are called, receiving of such antecedents reports takes quite some time. Though the antecedent alone is not a ground of rejecting or accepting a bail, but it is must that the Hon’ble High Court should have the antecedent report to check the applicability of Section 437 (1) of Cr.P.C. as well as to weigh the case of the accused person with overall perspective of the allegations levelled.

Thus, this Court directs that all learned trial courts shall, while allowing or disallowing any regular/anticipatory bail application of any accused person,give the complete details of the antecedents, if any, and also record that there are no antecedents of the accused person in case of none being there. If there are antecedents of the accused, then the complete details of the antecedents i.e. FIR Number(s) & Case Number(s), Section(s), date(s), status and date of arrest & release on any previous occasion, if any, in the chart form shall be prepared and incorporated in the learned trial courts’ order, while granting or dismissing the bail application.
This order shall be conveyed by the Registry of this Court to all learned District & Sessions Judges of the State, who shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are hearing the bail applications. The detailed antecedents report in aforesaid format so provided in the trial courts’ order shall be the requirement of disposal of any bail application in State of Rajasthan. It is also directed that the learned Public Prosecutors all over the State shall call for the antecedents report well in advance in every case of bail, so as to enable the courts to have a definite and correct information regarding previous criminal antecedents of the accused. A certified copy of this order be also sent by the Registry to the Director of the Prosecution Department of the State for necessary compliance, amongst the learned Public Prosecutors all over the State of Rajasthan.
The Registry of this Hon’ble Court shall ensure compliance of this order, in its letter and spirit, and submit such compliance before this Court on 05.01.2021.

Jugal Vs State of Rajasthan on 25 Nov 2020
Posted in High Court of Rajasthan Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 439 - Special powers of High Court or Court of Session regarding bail Issued or Recommended Guidelines or Directions or Protocols to be followed Jugal Vs State of Rajasthan Work-In-Progress Article | Leave a comment

Pradeepkumar Vs State of Kerala on 23 Nov 2020

Posted on November 27, 2020 by ShadesOfKnife

A consensual sexual act is given a color of a rape in this case and the accused got bail u/s 439 CrPC on his third attempt, as this very same judge was not inclined to grant bail in earlier two instance and hence the bail applications were withdrawn.

Pradeepkumar Vs State of Kerala on 23 Nov 2020
Posted in High Court of Kerala Judgment or Order or Notification | Tagged CrPC 439 - Special powers of High Court or Court of Session regarding bail False Incest Or Rape Or Sexual Or Sexual Harassment Allegations Legal Terrorism Misuse of Women-Centric Laws Pradeepkumar Vs State of Kerala | Leave a comment

Subhranshu Rout @ Gugul Vs State of Odisha on 23 Nov 2020

Posted on November 25, 2020 by ShadesOfKnife

Single judge bench of Orissa High Court, in this bail matter, held that right to be forgotten (or left alone) is part of bouquet of rights enshrined in Article 21 of the Constitution.

From Para 5,

5. While examining the pages of the case records, prima facie, it appears that the petitioner has uploaded the said photos/videos on a social media platform i.e. Facebook and with the intervention of the police, after some days, he deleted the said objectionable contents from the Facebook. In fact, the information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away. Under the Indian Criminal Justice system a strong penal action is prescribed against the accused for such heinous crime but there is no mechanism available with respect to the right of the victim to get the objectionable photographs deleted from the server of the Facebook. The different types of harassment, threats and assaults that frighten citizens in regard to their online presence pose serious concerns for
citizens. There is an unprecedented escalation of such insensitive behavior on the social media platforms and the victim like the present one could not get those photos deleted permanently from server of such social media platforms like facebook. Though the statute prescribes penal action for the
accused for such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved. There is a widespread and seemingly consensual convergence towards an adoption and enshrinement of the right to get deleted or forgotten but hardly any effort has been undertaken in India till recently, towards adoption of such a right, despite such an issue has inexorably posed in the technology dominated world. Presently, there is no statute in India which provides for the right to be forgotten/getting the photos erased from the server of the social media platforms permanently. The legal possibilities of being forgotten on line or off line cries for a widespread debate. It is also an undeniable fact that the implementation of right to be forgotten is a thorny issue in terms of practicality and technological nuances. In fact, it cries for a clear cut demarcation of institutional boundaries and redressal of many delicate issues which hitherto remain unaddressed in Indian jurisdiction. The dynamics of hyper connectivity- the abundance, pervasiveness and accessibility of communication network have redefined the memory and the prescriptive mandate to include in the technological contours is of pressing importance.

From Para 14,

14. Section 27 of the draft Personal Data Protection Bill, 2018 contains the right to be forgotten. Under Section 27, a data principal (an individual) has the right to prevent continuing disclosure of personal data by a data fiduciary. The aforesaid provision which falls under Chapter VI (Data Principal Rights) of the Bill, distinctly carves out the “right to be forgotten” in no uncertain terms. In terms of this provision, every data principal shall have the right to restrict or prevent continuing disclosure of personal data (relating to such data principal) by any data fiduciary if such disclosure meets any one of the following three conditions, namely if the disclosure of personal data:
(i) has served the purpose for which it was made or is no longer necessary; or
(ii) was made on the basis of the data  principal’s consent and such consent has since been withdrawn; or
(iii) was made contrary to the provisions of the bill or any other law in force.
In addition to this, Section 10 of the Bill provides that a data fiduciary shall retain personal data only as long as may be reasonably necessary to satisfy the purpose for which it is  processed. Further, it imposes an obligation on every data fiduciary to undertake periodic reviews in order to  determine whether it is necessary to retain the personal data in its possession. If it is not necessary for personal data to be retained by a data fiduciary, then such personal data must be deleted in a manner as may be specified.

 

Subhranshu Rout @ Gugul Vs State of Odisha on 23 Nov 2020

Index of Article 21 case laws is here.

Posted in High Court of Orissa Judgment or Order or Notification | Tagged 1-Judge Bench Decision Article 21 - Protection of life and personal liberty CrPC 439 - Special powers of High Court or Court of Session regarding bail Right to be Forgotten Right to be left alone Right to Personal Liberty Subhranshu Rout @ Gugul Vs State of Odisha | Leave a comment

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 11 Nov 2020

Posted on November 11, 2020 by ShadesOfKnife

Supreme Court granted interim bail to Arnab Goswami, after he suffered judicial custody for 7 days.

Here is the Order.

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 11 Nov 2020

Here is the Judgment with reasons.

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 27 Nov 2020

Index of Quash judgments here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Arnab Manoranjan Goswami Vs State of Maharashtra and Ors Article 226 - Power of High Courts to issue certain writs Article 227 - Power of superintendence over all courts by the High Court CrPC 439 - Special powers of High Court or Court of Session regarding bail CrPC 482 - FIR Can Be Quashed Interim Bail Reportable Judgement or Order Work-In-Progress Article | Leave a comment

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
Posted in High Court of Bombay Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Arnab Manoranjan Goswami Vs State of Maharashtra and Ors Article 226 - Power of High Courts to issue certain writs Catena of Landmark Judgments Referred/Cited to CrPC 173 - Report of Police Officer on Completion of Investigation CrPC 439 - Special powers of High Court or Court of Session regarding bail CrPC 482 - Saving of inherent powers of High Court Landmark Case Legal Procedure Explained - Interpretation of Statutes Police Closure Reports | Leave a comment

Jayesh Khemchandbhai Patel Vs State of Gujarat on 9 February, 2017

Posted on January 12, 2020 by ShadesOfKnife

This is the Regular Bail application of the Rapist Jayesh Patel that got rejected by Gujarat High Court.

Jayesh Khemchandbhai Patel Vs State of Gujarat on 9 February, 2017

Citations:

Indiankanoon.org or Casemine link: https://indiankanoon.org/doc/155267301/


Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from main.sci.gov.in/judgments, judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in

Posted in High Court of Gujarat Judgment or Order or Notification | Tagged CrPC 439 - Special powers of High Court or Court of Session regarding bail Jayesh Khemchandbhai Patel Vs State of Gujarat Regular Bail Denied Sensational Or Peculiar Cases

Biman Chatterjee Vs Sanchita Chatterjee & Anr on 10 February, 2004

Posted on September 15, 2018 by ShadesOfKnife

Cunning knife got the bail granted earlier to husband, cancelled by the local magistrate for alleged reason that the appellant is not cooperating in the compromise talk.

The Hon’ble Supreme Court has rightly set aside the order of High Court at Ranchi.

Biman Chatterjee Vs Sanchita Chatterjee & Anr on 10 February, 2004
Posted in Supreme Court of India Judgment or Order or Notification | Tagged Bail Not Cancelled For Baseless Allegation Biman Chatterjee Vs Sanchita Chatterjee and Anr Cancellation of Bail Set Aside CrPC 439 - Special powers of High Court or Court of Session regarding bail | Leave a comment

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