Posts in Criminal Law

Anticipatory Bail granted By Delhi High court in 376/509/506 IPC case

Criminal Law

The Hon’ble High court of delhi has granted anticipatory bail in 376 IPC matter wherein allegation of rape has been leveled against the accused.

The case is based upon a complaint filed by a daughter against her step father which resulted in to an FIR under section 376/509/506 IPC. During the investigation the NBWs have also been issued against the accused.

The Hon’ble High court of Delhi based on the obersations of the Hon’ble Supreme court in Siddharam Sthlingappa Mhetre case has held that even though the allegations against the applicant are serious in nature but the severity of the allegations is not the only consideration which should result in denial of grant of bail to the petitioner. The totality of the circumstances deserves to be seen before a person is granted or denied anticipatory bail.

The Hon’ble High court has further held that In the instant case, the petitioner has been able to make out a case for grant of anticipatory bail on account of the fact that no recovery of any articles is to be effected inasmuch as this is a case where all the articles have been seized by the police as per the Status Report and he had joined the investigation at least six times.

There are two more considerations which are being taken into account for grant of anticipatory bail. Firstly, the petitioner is having roots in the society and no apprehension has been shown by the prosecution that there is a chance of fleeing away of the petitioner from the process of law.

The accused has been granted anticipatory bail on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the IO/SHO concerned with the condition that he shall not tamper with the evidence or threaten any of the witnesses.

READ COMPLETE ORDER BELOW:

HIGH COURT OF DELHI

AMEET KHANDELWAL V/S STATE OF NCT OF DELHI

Date of Decision: 23 April 2021

Hon’ble Judges: Rajnish Bhatnagar Case Type: Bail Application
Case No: 1162 of 2021
Subject: Criminal

Acts Referred:

INDIAN PENAL CODE, 1860 SEC 376, SEC 509, SEC 506 CODE OF CRIMINAL PROCEDURE, 1973 SEC 438, SEC 164 NEGOTIABLE INSTRUMENTS ACT, 1881 SEC 138

Judgement Text:-

Rajnish Bhatnagar, J

[1] The present bail application has been filed under Section 438 Cr.P.C. on behalf of the petitioner for grant of anticipatory bail in case FIR No. 005/2021 under Sections 376/506/509 IPC registered at Police Station Greater Kailash as the Court of Sessions dismissed his anticipatory bail application on 01.04.2021, holding that the allegations against the petitioner are serious and it is not a fit case for grant of anticipatory bail.

[2] Briefly stated, the facts of the case are that on 29.12.2020 a complaint was lodged by the victim at P.S. Greater Kailash against the petitioner who is her step father. In the said complaint, the complainant stated that she was pursuing Economics from D.U. and was staying with her mother after the separation of her mother from her father in the year 2001. It is stated that her mother is a business woman and in the year 2010 her mother met the petitioner who was also divorcee, and they married each other in the year 2012. Thereafter the petitioner also started living with them and started working in the complainant’s mother company. It is alleged that shortly, after the marriage between the petitioner and mother of the complainant, behaviour of the petitioner from the beginning was over friendly with her and was always finding excuses to physically touch her and hug her.

[3] It is further alleged that the complainant objected to the behaviour of the petitioner who told her that he was only trying to teach her and discipline her and she could not take it otherwise. It is further alleged that soon his behaviour progressed in the direction of aggressive sexual harassment and was always trying to touch the body of the complainant when no one was looking. It is alleged that the complainant was severely, emotionally depressed and then she started to object very loudly telling the petitioner not to touch her on her bum or any other part of her body even as a friendly gesture.

[4] It is further alleged that after observing this kind of behaviour for a long time, the complainant started avoiding the petitioner whom she always addressed as daddy. It is further alleged that the behaviour of the petitioner was very vulgar and cheap in front of the complainant and he had no respect for her mother. It is further alleged that the life style of the petitioner is like a street goon and he always dresses inappropriately and used to roam around inside the house and in front of the complainant wearing only shorts and with bare chest. It is further alleged that the complainant always used to suspect that he is trying to mix some medicines in her drink such as tea, coffee, juice as on several occasions, she noticed that the taste of the drinks were strange. It is alleged that once after consuming such drink, the complainant felt dizzy and felt like she was going unconscious so she immediately took a bath with cold water to keep herself

awake. It is further alleged that thereafter the complainant avoided having tea, coffee, juice etc. whenever the petitioner was near her or near the kitchen.

[5] It is further alleged that she has not shared this with her mother. One day her mother had a cup of green tea made by the petitioner for the complainant which she did not drink, but her mother consumed this green tea, and she became unconscious and woke up next morning with a severe headache and other symptoms. It is further alleged that after this incident the complainant completely stopped drinking and eating near the petitioner. It is further alleged that every time the petitioner went on international trips, he always wanted to go or come via Bangkok where he would often stay at night to satisfy his lusts. It is alleged that the petitioner used to bring his goon type friends to the house to drink and then they would cheaply speak in the house.

[6] It is alleged that on 18.05.2020 around 09-09:30 a.m. when the complainant was taking bath in her bathroom, she forgot to take her towel inside. It is alleged that after she finished bathing, she shouted out loud to the maid to hand her towel. It is alleged that there was a knock on the door which the complainant thought was maid but to her shock it was the petitioner at the door and he pushed opened the door and grabbed her and licked the face of the complainant. It is further alleged that the petitioner inserted his finger inside her private part and refused to leave her. When the complainant struggled and shouted the petitioner pushed her and punched her in her stomach and asked her to keep quiet. It is alleged that thereafter he took out his mobile and told that he was making nude video of the complainant and if she would make noise then he would show this video on the internet. It is alleged that the petitioner also threatened her to kill the complainant and her mother. It is alleged that thereafter the petitioner left the house and ran away. It is alleged that when she discussed and shared the incident with her mother, she broke down and assured the complainant not to worry and that she would support her and would not keep quiet about this incident, even if the complainant published the nude pictures of the complainant.

[7] I have heard Mr. Sudhir Nandrajog, Sr. Adv., counsel for the petitioner as well as Ld. APP for the State. The private counsel representing the complainant had also made her submissions and assisted the Ld. APP.

[8] The main contention of the Ld. Sr. Counsel for the petitioner is that the petitioner has been falsely implicated in the instant case. It is submitted that the marriage between the mother of the complainant and the petitioner is their second marriage and they had incorporated a company namely “Prayer Dhoop Agarbatti Pvt. Ltd.” of which they are the owners of 50% share holding as well as directors in the company. It is further submitted that Mrs. Pooja Goela was caught cheating by the petitioner as the photographs of Ms. Pooja Goela with another person were revealed to the petitioner and the differences arose due to the infidelity of Mrs. Pooja Goela and for this reason the petitioner left the property where he was living with her family and started living with his friend at Laxmi Nagar from January 2020 till march 2020.

[9] It is submitted that the memorandum of settlement on 05.03.2020 was entered into between the petitioner and Mrs. Pooja Goela which noted the differences between the petitioner and Mrs. Pooja Goela and they agreed to live separately for six months and it was also agreed that separate payments with respect to accommodation for the petitioner shall be paid by the company. It is further urged that the petitioner also arranged for an alternate accommodation in the name of the company in East of Kailash and a lease deed dated 06.03.2020 was executed and the possession was handed over to the petitioner. He further submitted that Mrs. Pooja Goela started misappropriating the funds of the company and started new company namely “Prayer Ensemble Pvt. Ltd.” in which she had share holding of 80% and the same was created with the sole purpose to cause monetary loss to the petitioner. It is submitted that since Mrs. Pooja Goela was indiscriminately withdrawing the money from the account of the company, the petitioner preferred letters to the banker of the company i.e. ICICI Bank to freeze the account of the company, so, acting on the complaint of the petitioner ICICI Bank imposed debit freeze on the account of the company.

[10] It is further submitted that Mrs. Pooja Goela preferred a company petition and vide order dated 10.11.2020, conditional release was granted for limited purpose. It is further urged by the Ld. Sr. cousnel that Mrs. Pooja Goela in collusion with ICICI Bank indiscriminately withdrew money in gross violation of the orders of NCLT so that the petitioner was compelled to initiate contempt proceedings against Mrs. Pooja Goela and ICICI bank. It is further submitted that the cheques issued to the petitioner by the company were dis-honoured by the bankers of the petitioner as Ms. Pooja Goela had stopped the cheques, so complaints U/s 138 NI Act have been preferred by the petitioner against the company and Mrs. Pooja Goela. It is further submitted by the Ld. Sr. counsel for the petitioner that the petitioner was regularly threatened implications in false cases about which he made complaints at P.S. Greater Kailash at different point of time. It is further submitted that there is a delay of more than 7 months in filing the present complaint by the complainant and there is no explanation for the delay. It is further submitted that the alleged incident is dated 18.05.2020 but the complainant preferred the complaint on 29.12.2020 which has been filed solely with the purpose that the petitioner may not pursue his business interest in the company.

[11] It is further urged that the petitioner was not residing at the residence R-64, 3rd Floor, Greater Kailalsh-1, where the complainant was present on the date of the incident and the IO made no efforts to obtain the location of the petitioner’s mobile phone. It is further submitted that the petitioner had never absconded and has joined investigation on 10.02.2021, 11.02.2021, 12.02.2021, 15.02,2021, 16.02,2021 and 17.02.2021. It is further submitted that the allegations in the FIR are totally false and no dates, day, time has been mentioned about the incidents. It is further submitted that no custodial interrogation is required and the petitioner has clean past antecedents. It is further submitted by the Ld. Sr. counsel that the contents of the FIR are highly improbable and cannot be believed. It is further submitted that according to the complainant, the petitioner prior to the alleged incident of 18.05.2020 has been misbehaving and sexually harassing the complainant but she had never made any complaint to her mother or brother which shows that she had no complaints.

[12] It is further submitted that as per the complainant once the mother of the complainant fell un-conscious after drinking green tea which was meant for the complainant but the mother of the complainant drank the same, still the complainant failed to bring to the notice of her mother the alleged conduct of sexual harassment to the notice of her mother. It is further submitted by the Ld. Sr. counsel that the complainant even had a grown up brother and she never brought even to his notice the alleged misconduct/sexual harassment being done by the petitioner. It is further submitted that the FIR has been filed after 7 months of the alleged incident under a well planned strategy to extort money from the petitioner and to take revenge from the petitioner for the cases filed by him for redressal of bonafide grievances as the owner of the company. It is further submitted by the Ld. Sr. counsel that the mother of the complainant was pursuing all sorts of litigations against the petitioner prior to the date of complaint which is 29-12-2020 and had any such incident taken place, there was no reason for the complainant or her mother to keep quiet and it also cannot be said that they were not conversant with the law or had no brush with the court cases.

[13] On the other hand, it is submitted by the Ld. APP that the allegations against the petitioner are grave and serious in nature. The petitioner is step father of the complainant and if the daughter is not safe with one’s father, then she has no place to go. It is further submitted by the Ld. APP that the location of the petitioner as per the ID chart of mobile phone was found at the place of occurrence. It is further submitted that the complainant’s statement U/s 164 Cr.P.C has been recorded wherein she has reiterated the version given in the FIR. It is submitted by the counsel for the complainant that the accused/petitioner may not be available for the trial as he has mentioned different addresses in the bail petition and there are chances that he may flee from the justice. It is further submitted that there is an independent witness who is the maid working at the time of the incident in the house of the complainant. As regard the delay in lodging the FIR, it is submitted that the complainant remained silent to save the matrimonial trauma of her mother and the marriage of the complainant was fixed during that period and if the fiance of the complainant would have come to know about the incident, he would have broken the relationship.

[14] No doubt, the allegations against the petitioner are serious in nature but the severity of the allegations is not the only consideration which should result in denial of grant of bail to the petitioner. The totality of the circumstances deserves to be seen before a person is granted or denied anticipatory bail. The Supreme Court in case titled Siddharam Satlingappa Mhetre Vs. State of Maharashtra, 2011 1 SCC 694 has laid down that the Court should be loath to reject the grant of anticipatory bail in as much as it impinges on the personal liberty of a person. Meaning thereby, unless and until there is an imminent and a great imperative to have a custodial interrogation of an accused, the anticipatory bail does not deserve to be denied.

[15] In the instant case, there is no denial to the fact that the petitioner and his wife who is the mother of the complainant are involved in various litigations amongst each other. The mobile phone has already been recovered and the petitioner has already joined the investigation on 10.02.2021, 11.02.2021, 12.02.2021, 15.02,2021, 16.02,2021 and 17.02.2021. As per the status report, filed by the state in compliance of the order dated 09.02.2021 of Sh. Gaurav Rao, Ld. ASJ, Saket Court, New Delhi, the verification of the complaints given by the petitioner has also been done and it has been found that the applicant/petitioner has filed 3 complaints at P.S. Greater Kailash, wherein he has mentioned about his apprehension of being arrayed in a false case of molestation by his step daughter on the instructions of his wife. As per the status report, all the information with regard to the mobile phones being used by the petitioner has been supplied to the police.

[16] As already observed hereinabove, the petitioner has joined the investigation on numerous occasions. There is a history of litigations in regard to the control of business between the petitioner and the mother of the complainant. Ld. Sr. counsel for the petitioner has also laid much emphasis on the delay in lodging the FIR and contended that there is no plausible explanation for the delay and the same is fatal to the case of the complainant. In the instant case, the alleged offence took place on 18.05.2020 and on the same very day, according to the complainant she had informed her mother about the incident and also discussed with her but the complaint was only lodged on 29.12.2020. In between this period from the record, it is evident that the petitioner and the mother of the complainant have been litigating.

[17] No doubt, the delay in lodging the FIR is not always fatal and it depends upon the facts of each case. The reasons given by the counsel for the complainant for the delay is that the complainant never wanted to spoil the matrimonial home of her mother and secondly her fiance would have left her if he had come to know about the conduct of the petitioner. Though, the complainant has tried to explain the delay, but the same can be looked into at the time of trial and as to what would be the fate of such delay would be seen at that particular stage.

[18] The perusal of the FIR shows that no day, date, month and time has been given by the petitioner with regard to the incident prior to 18.05.2020. It is also not understood as to why she had not even once made any complaint to her mother and brother about the misconduct and sexual harassment being meted out by the petitioner and when at one stage according to the complainant, her mother even fell unconscious after drinking green tea which the petitioner brought for the complainant but was drank by the mother of the complainant but then also the complainant failed to tell her mother and brother about the conduct of the petitioner as already observed.

[19] In the instant case, the petitioner has been able to make out a case for grant of anticipatory bail on account of the fact that no recovery of any articles is to be effected inasmuch as this is a case where all the articles have been seized by the police as per the Status Report and he had joined the investigation at least six times.

[20] There are two more considerations which are being taken into account for grant of anticipatory bail. Firstly, the petitioner is having roots in the society and no apprehension has been shown by the prosecution that there is a chance of fleeing away of the petitioner from the process of law.

[21] In so far as the contention of the petitioner tampering with the evidence or threatening the witnesses are concerned a generalize statement has been made by the counsel for the complainant and nothing has been shown to the Court in the form of any cogent and prim-facie evidence which could show that he has threatened anybody or tried to tamper with the evidence.

[22] It has also been argued by the Ld. APP that NBWs were obtained against the petitioner as he has not been joining the investigation but thereafter as per the status report, the petitioner has joined the investigation. Merely because the NBWs were issued against the petitioner cannot be a sufficient ground for denying the grant of anticipatory bail, if it is otherwise made out. Every reasonable person who has approached the Court for grant of anticipatory bail will keep away from the investigation for some time so that his bail application may not become infructuous.

[23] Having regard to the facts and circumstances of this case, I am inclined to admit the petitioner to anticipatory bail on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the IO/SHO concerned with the condition that he shall not tamper with the evidence or threaten any of the witnesses. The bail application is disposed of accordingly.

[24] Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case.

Court has to decide bail application

Criminal Law

Whenever an accused appears before the court or is brought before the court, he/she has the option to apply for bail. In such cases when the bail application is filed, the court has to first ascertain whether the offence the person is accused of, is bailable or  non bailable. In bailable offence or bailable cases, the accused can get the bail from police station itself as per the mandate of section 436 CrPC if the accused is ready to furnish bail and furnishes bail.  In cases of non bailable offences the grant of bail is a discretion of the court.

In State versus Captain Joginder Singh 1961 Supreme court ash observed that “Whenever an application for bail is made to a court, the first question that it has to decide is whether the, offence, for which the accused is being prosecuted is bailable or otherwise. If the offence, is bailable, hail will be granted, under s. 496 of the Code of Criminal Procedure without more ado ; but if the offence is not bailable, further considerations will arise and the court will decide the question of grant of bail in the light of those further considerations.”

Section 436 provides for the bail in bailable offences whereas section 437 CrPC provides for bail in non bailable offences. In such cases the court shall adhere to the principles provided under section 437 CrPC.

In non bailable offences, the Magistrate may release the accused under section 437 CrPC whereas the Court of session or the Hon’ble High court may release the applicant under section 439 CrPC.

Bail granted in Corruption case

Criminal Law

Gauhati High court recently has granted bail in a corruption case in the matter of Gautam Baruwa versus The state of assam 2021 wherein the accused was arrested an has prayed for granting him regular bail, in connection with CM’s Special Vigilance Cell Police Station Case No. 9/2017, under Sections 120(B)/406/409/468/471/420 IPC, read with Section 13 (2) of the Prevention of Corruption Act, 1988 which involves a cumulative amount of Rs. 121 crores.

The Hon’ble high court also quoted the decision of the apex court in Deepak S Mehta -Vs- CBI; wherein the bail has been granted under Section 439 CrPC, considering that where there is delay in trial, bail should not be denied. Paragraph-19 is quoted below:-
“As observed earlier, we are conscious of the fact that the present appellant along with others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the facts though the investigating agency has completed the investigation and submitted the charge sheet including the additional charge sheet, the fact remains that the necessary charges have not been framed. Therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents, including the certificate of the medical officer, we are of the view that the appellant is entitled to an order of bail, pending trial on stringent conditions, in order to safeguard the interest of CBI.

Bail in cases of non bailable offences is a discretion of the court as per the various decisions of the Hon’ble court the punishment starts after conviction.

Read full judgement below:
Gauhati High Court
Gautam Baruwa vs The State Of Assam on 8 February, 2021
                                                                                    Page No.# 1/6

GAHC010175182020




                               THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Bail Appln./2718/2020

             GAUTAM BARUWA
             S/O LT KSHIRODA KANTA BARUWA, R/O FLAT NO. F-4, CHANDRALAYA
             APARTMENT, LAMB ROAD,AMBARI, P.S. LATASIL GUWAHATI-781001,
             DIST. KAMRUP (M), ASSAM



             VERSUS

             THE STATE OF ASSAM
             REP. BY THE PP, ASSAM



Advocate for the Petitioner    : MR. A CHAUDHURY

Advocate for the Respondent : PP, ASSAM


                                              BEFORE
                     HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
                                      ORDER
08.02.2021 By this application under Section 439 CrPC, petitioner, namely, Sri Gautam Baruwa, who was arrested on 25.02.2020, has prayed for granting him regular bail, in connection with CM's Special Vigilance Cell Police Station Case No. 9/2017, under Sections 120(B)/406/409/468/471/420 IPC, read with Section 13 (2) of the Prevention of Corruption Act, 1988. 
2. Heard Mr A Choudhury, learned counsel for the petitioner. Also heard Mr N K Kalita, learned Additional Public Prosecutor for the State of Assam. 
Page No.# 2/6 
3. The LCR, along with the status report submitted by the learned Presiding Officer has been produced. 
4. Pursuant to an allegation received from the erstwhile Labour Commissioner, Tapan Chandra Sarma, to the effect that during the years 2013-2016, the then Labour Commissioner -cum- Member Secretary and the Chairman and other staff of Assam Building and Other Construction Workers Welfare Board (in short, "ABOCWWB"), Guwahati, illegally incurred huge expenditure in printing leaflets, folders and booklets for awareness campaign and also printing of forms and registers without receiving indent from the Field Officers, violating the prescribed limits, an enquiry was conducted by the Inspector of Police, CM's Vigilance Cell and on the basis of self conducted enquiry by Inspector, Mrinal Sarma, the FIR was lodged, alleging that the FIR named accused persons were involved in printing of various forms and other items for three successive years, in the name of publicity of campaign for labour awareness, which involves a cumulative amount of Rs. 121 crores, while disbursing the work to the particular firms, large scale collusion is alleged to have been indulged into, in the form of manipulation of floating tenders in inflated rates and thereby, causing wrongful loss to the State exchequer and wrongful gain to the accused persons. The aforesaid FIR was registered as SVC Case No. 9/2017, under Sections 120(B)/406/409/468/471/420 IPC, read with Section 13 (2) of the Prevention of Corruption Act, 1988, against- 1) Chohan Doley, IAS, the then Labour Commissioner 
-cum- Member Secretary, 2) Gautam Baruwa, the Chairman of ABOCWWB, 3) N N Choudhury, Administrative Officer of the Board, 4) Priyanshu Bairagi, Proprietor of Purbashree Printing House, Patacharkuchi, 5) Officials of Sarba Siksha Abhijan Mission, Assam. 
5. During investigation three accused persons, Chohan Doley, N N Choudhury and Priyangshu Bairagi were arrested and charge sheet was also laid against them, pending further investigation under Section 173 (A) of CrPC. Those three accused persons were subsequently released on bail. Present accused person, Gautam Baruwa, who is stated to have absconded at the initial stage, but, later on, he was also arrested on 24.02.2020 and, thereafter, were sent to judicial custody and charge sheet was also laid against him, after obtaining prosecution sanction under Section 197 of the CrPC. The learned trial Court in its status report has submitted that prosecution sanction as regards the other accused, Chohan Doley is not yet furnished under Section 19 of the PC Act and the proposal has been sent by the Secretary to the Government of India to the Prime Minister's office in this regard. Soon after obtaining the prosecution sanction order against Chohan Doley, the learned Court will consider the matter of taking cognizance of offences against the accused persons. 
Page No.# 3/6 
6. Thus, from the matters on record and the LCR, it reveals that the charge sheet has already been laid against all the accused persons at different stages and the case is pending for taking cognizance. 
7. The learned counsel for the petitioner has submitted before this Court that all remaining charge sheeted accused(s), except the present petitioner, have been granted bail by this Court as well as the trial Court and the bail prayer of the present accused petitioner should also be considered, in view of length of detention and as a matter of parity. Different bail order(s) of those accused persons have been pressed into as well as other bail order(s), passed by this Court in some other cases regarding the APSC case etc., where this Court granted the bail to co-accused(s) on the ground of parity and length of detention. 
8. Referred decisions annexed are gone through and also the LCR to assess the status of the case. 
9. In support of the contention raised by the learned counsel for the petitioner, the following decisions of the Hon'ble Apex Court have been submitted, wherein the Hon'ble Court has granted bail considering the length of detention in custody, without trial:- 
1) In (2000) 9 SCC 443; Vivek Kumar -Vs- State of UP, bail under Section 439 CrPC (in an offence under Sections 394/395 read with Section 149 IPC) was granted by holding that the accused person is in custody for a quiet long period without commencing the trial and there is no need to detain him in further custody. 
2) In (2002) 10 SCC 403; Sanjay @ Bablu -Vs- State of Gujarat, bail under Section 439 CrPC, (in an offence under Sections 120B/307/392/393 IPC) was granted, considering the length of detention under the custody, against the apprehension of prosecution that accused may abscond from the trial. 
3) In (2012) 4 SCC 134; Deepak S Mehta -Vs- CBI; bail has been granted under Section 439 CrPC, considering that where there is delay in trial, bail should not be denied. Paragraph-19 is quoted below:- 
"As observed earlier, we are conscious of the fact that the present appellant along with others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the facts though the investigating agency has completed the investigation and submitted the charge sheet including the additional charge sheet, the fact remains that the necessary charges have not been framed. Therefore, the presence of the appellant in custody may not be necessary for further Page No.# 4/6 investigation. In view of the same, considering the health condition as supported by the documents, including the certificate of the medical officer, we are of the view that the appellant is entitled to an order of bail, pending trial on stringent conditions, in order to safeguard the interest of CBI." 
4) In 2012 (3) Supreme 270; Shiv Mohan Kapoor -Vs State of UP, bail has been granted under Section 439 CrPC, where the co-accused has already been granted bail. 
5) In 2018 (0) Supreme (SC) 1267; Omprakash @ Manta -Vs- State of MP, the Court granted bail after conviction on parity, where the sentence of other co-accused persons had been suspended. 
6) In (2018) 14 SCC 493; Sharad T Kabra -Vs- Union of India (in an offence under Section 120 (B)/420/467/468/471 IPC and Prevention of Money Laundering Act), bail was granted under Section 439 CrPC, holding that though the charge sheet has been submitted but the trial has not commenced and even the charges have not been framed against the accused and such release on bail should be on requisite conditions, as may be considered appropriate. 
10. This Court in (2018) 0 Supreme (Gau) 1044, Utpal Bhuyan -Vs- State of Assam, (in an offence under Sections 120 (B)/201/420/463/468/471 IPC, read with Section 13 (1) (a) (b), 13 (1) (d), 13 (2) of the PC Act) granted bail under Section 439 CrPC, in cases relating to APSC scam on the ground of parity, as the co-accused on the same footing has already been enlarged on bail by this Court. 
11. Placing reliance upon the above decisions and referring to the matters in hand, it has been urged by the learned counsel for the petitioner that the accused person is a 60-years-old man and is suffering from various ailments and undergoing treatment since 2016 onwards till date in various hospitals (vide Annexure- Q series) for the ailments, like inflammatory lump over right sole and calonic polyp syndrome and operated on 27.11.2017, at Indraprastha Apollo Hospital at New Delhi, further treatment at Fortis Memorial, Gurgaon, for pancreatis, multiple chronic polyps on 01.06.2016, at International Hospital, Guwahati, treated for acute pancreatic, Type-II Diabetes Mellitus, Systemic Hypertension, Grade-II BEP, Hyperuricaemia (as on 06.05.2016) and also other numerous documents annexed, that he was treated at other hospitals also for his various ailments. 
12. Further, bail has been sought for on the ground of parity as while remaining all other co- accused(s) have already been enlarged on bail and trial has not yet begun. The accused has already given an undertaking before this Court to cooperate with the trial and there is no apprehension of Page No.# 5/6 hampering the investigation and tampering the witnesses, as the investigation has already been completed and charge sheet has also been laid. 
13. Learned Additional Public Prosecutor, Mr N K Kalita, has, however, raised objection against the bail prayer pointing towards earlier conduct of accused as he absconded immediately after filing of the FIR and one cannot claim bail only on the ground of parity and otherwise, nature and gravity of the offence cannot be denied. It is submitted that the trial of the case will be started soon after the prosecution sanction, obtained against one of the accused, Chohan Doley. 
14. Due consideration has been given to the rival submissions of both the parties and also gone through the matters on record and the decisions referred above. The LCR as well as the status report is perused, which indicates that the charge sheet has already been submitted, but cognizance has not yet been taken for want of prosecution sanction in respect of one of the accused, which has to be granted by the Central Government, and the same is awaited. As many as four accused persons have been charge sheeted, including the present petitioner and all of the accused are similarly situated. Apart from accused No. 4, Priyanghu Bairagi, proprietor of M/s Purbashree Printing House, all other accused are the officials of ABOCWWB. The other accused person, Chohan Doley was granted bail after 6 months of his custody (with stringent conditions), considering his length of detention as well as the fact that investigation has already been completed and cognizance could not be taken for want of prosecution sanction and as the entire matter is based on documentary evidence, which has already been seized and release of accused will not hamper the case. The accused Priyangshu Bairagi was granted the default bail as the charge sheet was filed much after the statutory period. Accused N. N. Choudhury was granted bail by the learned trial Court on the similar observation that cognizance could not be taken for want of prosecution sanction, despite long detention of the accused. 
15. The present accused person is also similarly situated with other co-accused. Rather he is in long detention, in comparison to other accused persons. Although the present accused was arrested much later than the other accused, but it reveals that he will complete one year detention in the last part of this month and yet there is no immediate prospect of commencement of the trial, in view of the status report received from the trial Court. All other co-accused persons are on bail, particularly on the ground of length of detention, even after filing of the charge sheet, no cognizance, no charge. 
16. Even though the offence relates to economic offence, having magnitude, but a litigant has the right to speedy trial under the Constitution. The accused herein being aged 60+ years, with multiple ailments, should not be denied the privilege of bail, in the light of observation/decision rendered by the Page No.# 6/6 Hon'ble Apex Court, despite the magnitude of such economic offence, apart from the ground of parity. He should be allowed to face the trial regularly. On the other hand, the cognizance of offence has not yet been taken and the trial is far away. 
17. Considering all entirety, this Court is of the opinion that accused Gautam Baruwa should be enlarged on bail, with strict conditions. 
18 Resultantly the accused person named above is hereby allowed to go on bail of Rs.50,000/- (Rupees fifty thousands) only with two solvent sureties of like amount, with the following directions: 
i) Not to leave the jurisdiction of the learned trial Court, without permission; 
ii) He will deposit his passport to the learned trial Court, at the time of furnishing the bail bond; 
iii) He will attend the trial regularly, without hampering the trial. 
19. With the above observations and directions, the bail petition stands disposed of.

Section 436 Bail in Bailable offences

Criminal Law

Section 436 – In what cases bail to be taken
(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, [may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail] from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446-A
[ Explanation .–Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.]
(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

Section 436 crpc provides for the bail in bailable offences, it casts a duty upon the police officer as well as the court to release the accused on bail in bailable offence when the accused is ready and prepared to furnish bail.

examples of Bailable offences Simple Hurt (Section 337; IPC), Bribery (Section 171E; IPC), Public Nuisance (Section 290; IPC), Death by Rash or Negligent Act (Section 304A; IPC) etc. in Indian penal code

This provision has been inserted with a view that a person who absconds or has broken the condition of his bail bond when he was released on bail in a bailable case on a previous occasion, shall not be entitled to bail when brought to Court on any subsequent date even though the offence may be bailable.

Scope of Default Bail under section 167 CrPC

Criminal Law

Section 167 provides for the concept of default bail. it is a section which is based on the fundamental right to life and liberty as provided in the constitution of India.

It provides for the release of the accused from jail when the accused is ready and actually furnishes bail in the condition wherein the investigation agency does not file the chargesheet within 60 or 90 days after the arrest of the accused.

It must be noted that this section is applicable on at pre cognizance stage. This stage comes to an end as soon as the chargesheet is filed by the IO.

The grant of bail under section 167(2) Crpc is not on the merits of the cae but primarily a statutory and technical right of the accused which accrues in the vent of delay in completion of the investigation by the police.

The Hon’ble supreme court in Hussainara Khatoon Vs State of Bihar 1979 has held that it is the duty of the magistrate to inform the accused that he has a right to be released on bail under this section and if the accused is prepared to furnish bail and does furnish bail as ordered, he has to be released.

The kerala high court in State of kerala vs Sadanandan 1984 has held that the court is no clog on investigation and prosecution is no lever for humiliation. freedom of individual is not licence to commit crime; personal liberty can have no conflict with the public interest. It is the duty of the court to strike a balance.

Hence the court is duty bound to release the accused on bail when there is a default on the part of the IO in filling the chargesheet within the period of 60/90 days as the case may.

Arrest- Meaning?

Criminal Law

The word arrest has neither been defined in the code of criminal procedure (Crpc) nor in the I or any other law which deals with criminal offences in India. Section 41 crPC onward provides for the powers of arrest as to who can arrest and whom can be arrested.

It only indicates as to what would constitute arrest is found in section 46 CrPC. In order to arrest a person, the police officer has to touch or confine the body of the person to be arrested unless there is submission to the custody by words or action.

The question as to whether the police is bound to arrest a person has been answered by the the punjab and haraya High court that a police officer is not always bound to arrest an accused even if the allegation against him is having committed cognizable offence.

In gist Arrest means a person in custody and the police is entitled to restrain him. But keep in mind that the custody and arrest are two different terms it means that in every arrest there is custody but not vice versa.

After arrest there are provisions of bail which we shall discuss in upcoming days.

Sexual Harassment of Women at Work Place in Virtual ERA

Articles Criminal Law

Sexual Harassment of Women at Work Place in Virtual World 

In this pandemic time due to COVID-19, work from home is slowly but steadily becoming the new normal. The pre COVID-19 era saw working from home as an exception to the general rule in most sectors. However, the prevalent situation has compelled most sectors to give serious consideration to the option of working from home on a long term basis. With lockdown orders in place and uncertainty looming large, companies have started evaluating implementation of work from home for a large proportion of their employees.  

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 

The Act was the country’s first legislation that aimed to provide protection to women against sexual harassment at their workplace and provide a mechanism for redressal of complaints of sexual harassment. Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any ‘workplace’. 

It is apparent that an important facet that requires determination is the scope of what comprises a ‘workplace’ under the Act. Any misconduct in question that may qualify as sexual harassment in terms of the Act, but which occurs outside the workplace, may not typically attract the provisions of the Act. 

The definition of ‘workplace’ under Section 2(o) of the Act, is an inclusive and non-exhaustive definition and includes any place visited by the employee arising out of or during the course of employment, including a dwelling place or a house. This allows discretion to the relevant adjudicating authority to determine the exact scope of the ‘workplace’ in the facts and circumstances of each case, as and when such determination becomes necessary. 

Given the nature of the legislation and the protection it seeks to extend to women, it may reasonably be assumed that the scope of ‘workplace’ shall usually be construed liberally and not in a restrictive manner. 

Even otherwise, as a socially benevolent legislation intended to extend protection to women at workplaces, the Act would attract the application of the principle of ‘notional extension’, a principle of law that has been used by courts time and again in the interpretation of beneficial legislation, to serve the objective of the legislation. 

Notional extension of ‘workplace’ under employment laws 

On a perusal of available literature and judicial precedents, it appears that the theory of ‘notional extension’ has been used by courts while interpreting laws governing compensation to be awarded to employees or workmen in case they sustain injuries during the course of their employment. A prerequisite under the applicable laws governing the award of compensation to employees/workmen by an employer was that the incident must have arisen “in” or “out of” the course of employment. 

Therefore, the question that often arose in such cases, to determine the liability of an employer, was whether or not such causal relationship between such incident and the employment could be established. Such determination required, in some cases, the examination of what constituted a workplace for the purpose of employment or engagement of the employee or workman. 

In this context, in the landmark case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors., the Supreme Court opined on the applicability of the theory of ‘notional extension’ of the employer’s premises. It was held that the theory of notional extension was applicable to an employer’s premises so as to include an area which the workman passes and re-passes in going to and in leaving the actual place of work. 

The Supreme Court also clearly set out that the scope of such extension of workplace would have to be determined in the facts and circumstances of each case. However, it can be reasonably concluded that an employer’s premises were not restricted to the strict perimeters of the office space and could be extended beyond such physical territory. 

Similarly, in the case of Sadgunaben Amrutlal and Ors. v. The Employees’ State Insurance Corporation, Ahmedabad, while discussing a claim under the Employees’ State Insurance Act, 1948, the High Court of Gujarat observed that recourse may be had to the notional extension theory in order to extend both ‘time’ and ‘place’, in a reasonable manner, in order to ascertain whether an accident to a workman may be regarded as in the course of employment and to effectuate the intention of the Legislature. 

Notional extension of ‘workplace’ under the Act 

Pertinently, the phrase “out of or during the course of employment” has also been included in the definition of ‘workplace’ under the Act. 

In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the Delhi High Court observed that the aim and objective of formulating the Vishaka Guidelines [propounded in Vishaka v. State of Rajasthan] was to ensure that sexual harassment of working women is prevented and any person guilty of such an act is dealt with sternly. 

Keeping in view the objective of the judgment, a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression ‘office’. 

“It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and advancement of information technology. A person can interact or do business conference with other person while sitting in some other country by means of video-conferencing…In a case like, this if such an officer indulges into an act of sexual harassment with an employee, say, his private secretary, it would not be open for him to say that he had not committed the act at workplace, but at his residence and get away with the same.” 

Noting the above, the High Court observed that the following factors would have bearing on determining whether the act has occurred in the ‘workplace’: 

(a) proximity from the place of work; 

(b) control of the management over such a place/residence where the working woman is residing; and 

(c) such a residence has to be an extension or contiguous part of the working place. 

Similarly, in its decision in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, when the issue of the scope of workplace arose, the Bombay High Court deemed it necessary to interpret the scope of workplace to be beyond the literal physical workplace. In this background, it was held that the mode and manner in which the basic concepts are exploited by it, leave no manner of doubt that the design of the Parliament is to provide safety and security to women at all workplaces. When the intention of the Parliament is very clear, it becomes even more evident that the definition of workplace under the Act is inclusive and again deliberately kept wide to ensure that any area where women may be subjected to sexual harassment is not left unattended or unprovoked for. 

Hence, any woman at her workplace cannot be disrespected by anybody. Similarly, she cannot also be disrespected when she is at the workplace of the accused. This is further corroborated by Section 19 of the Act, which mandates that every employer has to provide a safe working environment for a woman at the workplace which includes even safety from the third persons coming into contact with her at the workplace. 

In fact, in addition to the decision of the Delhi High Court in Saurabh Kumar Mallick, it would appear that the courts have given an expansive interpretation to what would constitute workplace as and when the need arose to extend its ambit in the interest of protection of women in their workplace, even before the Act came into force. 

For instance, in the case of Ayesha Khatun v. The State of West Bengal & others, the Calcutta High Court had recognized that even though workplace had not been defined either in the Vishakha guidelines or in the Vishakha judgment, a logical meaning should be given to the expression ‘workplace’ so that the purpose for which those guidelines have been framed, is not made unworkable. 

“Workplace, in my view, cannot be given a restricted meaning so as to restrict the application of the said guidelines within the short and narrow campus of the school compound. Workplace should be given a broader and wider meaning so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her in her place of work where she can continue her service with honour and dignity.” 

With the concept of virtual offices and work from home taking precedence in light of the lockdown orders and with the aid of applications like Zoom, Microsoft Teams and Skype etc, working in physical spaces and proximity has taken a backseat. This raises the question of whether our homes or virtual reality space qualifies the test to be recognised as a ‘workplace’ keeping in mind the spirit of the Act. 

Our understanding is that any act of sexual harassment effected virtually in a home working space can be included in the notional definition of a ‘workplace’. The definition of workplace under the Act, itself envisages the concept of notional extension, and such legislative intent has also expressly been recognized by the Courts. 

While the decision of the Delhi High Court in Saurabh Kumar Mallick pre-dates the existence of the Act, the same concept has been imported to be specifically included under the Act through the use of phrases such as “any workplace” in Section 3 and “out of or during the course of employment” in Section 2(o) of the Act. 

In the virtual world, there is a thin line between such harassment that may occur in the course of work or employment and that which may be perceived as harassment while operating outside the physical workplace. Having said that, the scrutiny of facts and circumstances of any complaint arising in case of employees who are working from home would be necessary to determine whether or not such complaint falls under the purview of the Act, keeping in mind the dynamic scope of ‘workplace’. 

Rise of Domestic Violence cases during Lockdown

Articles Criminal Law

Due to lockdown in India domestic violence cases has increase rapidly. Lockdown increases the risk of domestic violence within the home. Domestic Violence includes a physical, sexual, financial, psychological and emotional abuse against the women in house which is safest place for any person. During lockdown lot of women suffers with the act of assault, threats, humiliation and intimidation by the husband or other family members. Disconnection from outside or parental home support is one of the biggest reason for rise in domestic violence during lockdown. Due to lockdown victim of domestic violence not able the leave the place and continue to suffer the violence and can face physical and mental health difficulties. Another reason for rise in domestic violence is mental stress, insecurity of job, financial stress, future of business and other futuristic emotions of the person which led the violence. Another reason for rise in domestic violence is act of victim in most of the cases victims always blame themselves for violence instead of retaliation. Acceptance of violence increases the cycle of abuse and it should not be acceptable. Victims should always report the domestic abuse to the police and also informed about the violence to friends, family and neighbors. There are helplines number for the victim of domestic violence provided by the government. When the victim report to police, she has to elaborate entire incidents which were happened and should give a written complaint and ask for security from the police. If the violence physically hurt the victim, then she has to ask for medical examination (MLC) from the police. In such situations police called the abuser and send them to the counselors to resolve their family issues. Victim can adopt other legal options against the domestic violence such as she can report to the Woman Commission if police officer is not ready to assist the victim or Victim can directly file the Complaint against the abusers by filing a case under section 12 of DV ACT.

burden cannot be shifted upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139

Criminal Law

Hon’ble supreme court in APS FOREX SERVICES PVT LTD V/S SHAKTI INTERNATIONAL FASHION LINKERS & ORS has observed that burden cannot be shifted upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139

The Hon’be apex court trhough a division bench of Hon’ble Judges: Ashok Bhushan and M R Shah passed the order.

Facts Note:
Negotiable Instruments Act, 1881, Sections 139 and 138-Appeal against acquittal-Accused took plea that cheque was given by way of security-Courts below shifted burden to prove debt upon complainant.

Held – Accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 that there exists a legally enforceable debt or liability-Story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured-Both, Courts, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139.