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“Can Guidelines Be Extended To UTPs Facing Prosecution For Offenses Not Covered By The Exclusion Clause?”: The Delhi High Court requested clarification from a High-Powered Committee

“Whether the guidelines released in 2021 offer the benefits to Under Trial Prisoners who are facing trial for offences under Section 364A, 394, 397 IPC, etc., especially where these charges do not figure in the Exclusion Clause,” Justice Subramonium Prasad asked while dealing with two bail requests.

The confusion emerged after the bench read two High Court rulings in the matter of Manish Kumar @ Manny V. The State; Ajit V. The State Of Nct Of Delhi while dealing with two instances in which the Court denied interim release to an accused on the basis that the offence under Section 394 IPC was not covered by the HPC guidelines published in 2020. The Court had granted benefit of the same guidelines in the other bail application for offences under sections 302, 392, 397, 411, 120B, and 34 of the IPC. The Delhi High Court has asked its High Powered Committee to clarify if the guidelines released this year can be applied to inmates on trial for offences not covered by the exclusion clause, particularly sec. 364A (kidnapping for ransom), 394 (Voluntarily causing hurt in committing robbery), and 397 (Robbery, or dacoity, with attempt to cause death or grievous hurt) of the Indian Penal Code. The Court was asked if a person accused with an offence under Sections 392, 394, 395, 397, and 412 of the IPC is entitled to the benefit of the HPC guidelines or not. The Court stated,

“In order to avoid further conflicting orders, this Court deems it appropriate to place the matter before the High Powered Committee to issue BAIL APPLN. 2112/2021 & other Page 14 of 14 appropriate clarifications for the guidance of Benches dealing with application for grant of interim bail to Under Trials facing trial for offences under Section 364A, 394, 397 IPC etc.”

APP, on the other hand, claimed that the Committee intentionally omitted offences such as dacoity, robbery, and kidnapping for ransom, and that the Members of the HPC did not intend to extend the benefit to the persons accused of these offences, based on the minutes of meetings of the HPC dated 20th June, 2020 and 31st July, 2021.

Following the same, the Court observed,

“In the High Powered Committee meetings of 2020, clarification had to be sought from the High-Powered Committee, and while deciding the representations, the HPC clarified that offences like dacoity, robbery, kidnapping for ransom were not covered by the HPC guidelines 2020. However, even in 2021, the exclusion clause does not include the offences under Section 364A, 394 and 397 IPC and there is nothing to indicate that decisions taken by the High Powered Committee in the year 2021 are in continuation of the decisions taken by the High Powered Committee in the year 2020. If that be so, the issue which arises for consideration is that, do guidelines issued in 2021 extend the benefit to Under Trial Prisoners who are facing trial for offences under Section 364A, 394, 397 IPC etc. especially when these offences do not figure in the Exclusion Clause.”

 

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The Court declined pre-arrest bail to the petitioner as he was arrested under Sections 341, 323, 307, 504, and 506/34 IPC and 27 of the Arms Act, 1959: High court of Patna

 The petitioner was arrested under Section 341 of the Indian Penal Code, “Punishment for wrongful restraint”, section 323, “ Punishment for voluntarily causing hurt”, section 307, “Attempt to murder”, section 504, “Intentional insult with intent to provoke breach of the peace”, section 506, “Punishment for criminal intimidation”, section 34 IPC, “Acts have done by several persons in furtherance of common intention” and section 27 of the Arms Act, 1959, “Punishment for using arms, whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.” This present petition is in connection with Muffasil PS Case No. 116 of 2020 dated 14.05.2020.

In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Md Irshad versus the state of Bihar criminal miscellaneous No. 12365 of 2021 Mr. Shivendra Kumar Sinha Represented as the advocate for the petitioner, and Mr. Niranjan Parihar represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference.

The following are the facts of the case, the petitioner and others have been accused of entering the house of the informant and abused and threatened to withdraw the case filed by the nephew of the informant against the petitioners and they further assaulted the informant with an iron rod and the petitioner especially was accused of firing with his gun which is a violation under the arms act which hit the inside wall after breaking the window glass.

The counsel for the petitioner held that the FIR was lodged almost 3 hours before the incident and the delay for the same was no explained. The petitioners have also filed a case against the informant however there has been no injury caused to anyone despite the scuffle and the petitioners have been falsely implicated for the same.

The additional public prosecutor held that according to the FIR, it clearly indicated the petitioner has mens rea which is motive and intention to commit this crime as they were also accused by an earlier case filed by the nephew of the informant and they used force and exerted pressure to withdraw the case. Further, the APP held that after investigation they have recovered an empty cartridge which proves the incident was done mala fide.  Regarding the delay in the FIR, which was lodged by the informant it was lodged at 9:45 AM on the 14th May 2020 and the incident took place at 8:30 AM, whereas the petitioner’s lodged an FIR with a delay of almost 24 hours and therefore it is inapplicable to grant bail for the same.

The court concluded that “Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioner.  Accordingly, the petition stands dismissed.”

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The recovery was made from the premises owned by the petitioner, prima facie an offense is made out under the Bihar probation excise act, 2016: High court of Patna

The petitioner was taken into custody after committing an offense under section 30 of the Bihar Prohibition and Excise Act, 2016, “Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor”. This present petitioner is in connection with Manigachi PS Case No. 136 of 2020 dated 24.06.2020. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Shravan Roy @ Sharvan Rai and others versus the state of Bihar criminal miscellaneous No.17457 of 2021, Ms. Aprajita Represented as the advocate for the petitioner, and Ms. Pronoti Singh represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference.

The following are the facts of the case, the police in Bihar on prior information found out the petitioner and others were dealing with liquor, and hence they visited the spot and when the accused people saw the police approaching, they ran away leaving behind two motorcycles and one person was caught in the process and the police recovered liquor from the petitioner from various places including his hut.

The counsel representing the petitioner held the recovery of the liquor was made about 500 meters away from his home and he was absent during the time the police sized the liquor the petitioner was elsewhere with his wife at the primary Health Centre, as his wife was giving birth and therefore the petitioner has no connection with regard to the recovered liquor, further, the counsel held that the co-accused, in this case, one Mr. Suraj Kumar Ray has been granted the anticipatory bail by the courts in the order passes on 25.06.2021 in Criminal  Miscellaneous No. 17100 of 2021

The additional public prosecutor brought to light that this petition under Section 438 of the Code of Criminal Procedure, 1973 cannot be maintainable due to bar of Section 76(2) of the Bihar prohibition excise act, 2016, “Notwithstanding anything mentioned in Section-438 of Code of Criminal Procedure, 1973  shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offense under this Act.” Since the recovery of the liquor was made in the premises of the petitioner which is his hut and therefore it is considered an offense under the Bihar prohibition excise act 2016, and regarding granting anticipatory bail for the co-accused Mr. Suraj Kumar Ray was because there was no liquor recovered from his premises and henceforth was granted bail however the scenario is different with the petitioner and must be held liable for the same.

The court concluded that “Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP. Once the recovery is from the premises owned by the petitioner, prima facie an offense is made out under the Act and, thus, the bar of Section 76(2) of the Act would apply. Accordingly, the petition stands dismissed as not maintainable.”

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Position of the accused to be considered while granting bail: Delhi High Court

If there are chances of the accused tampering with evidence and also looking at the severity of punishments, the chances of the accused absconding or jumping the bail are present, then the grant of bail must be declined. This was held by Hon’ble Justice Subramonium Prasad in the case of Kuldeep Vs. State (NCT of Delhi) BAIL APPLN. 2206/2021 on the 31st of August, 2021 before the Hon’ble High Court of Delhi at New Delhi.

The brief facts of the case are, FIR No.510/2020 dated 25.10.2020 was registered on the statement of the prosecutrix. The prosecutrix is aged about 16/17 years. the prosecutrix lost her father about 10 years back before the lodging of the FIR and her mother left them. All the siblings were living with their grandmother who also passed away four years prior to the filing of the FIR. her aunt (father’s sister) kept the prosecutrix with her and brother of the prosecutrix started living with his aunt. certain differences arose between the prosecutrix and her aunt (father’s sister) and when she narrated out the incident to her aunt and uncle (father’s brother), they kept the prosecutrix with them. It is stated that certain difference arose with them also and the prosecutrix later shifted to her father’ brother and his wife, i.e. accused/Suman. accused/Suman used to work in a Spa and the prosecutrix went with her aunt to the Spa where she was introduced to accused/Poonam, who was running the Spa. It is stated that the next day accused/Suman took the prosecutrix to the parlor where the prosecutrix noticed that there were cabins and there were beds inside the cabins. Accused/Suman threatened her and asked the prosecutrix not to reveal anything otherwise she would kill her. r. The prosecutrix was sent to various customers in the Spa and also to persons in various hotels. The Spa was taken on rent/lease deed in the name of the Petitioner.

The counsel for the petitioner submits that, the petitioner was unaware of what was happening in the Spa. He further states that the lease deed had already expired and, therefore, the petitioner cannot be said to be the tenant. The counsel for the state however submitted that, Material on record shows i.e. the CCTV footage obtained from the premises shows that the petitioner was regularly visiting the Spa. It cannot be said that the petitioner was unaware of the activities of his own wife and that the petitioner was unaware that the girl aged 16/17 years was forced into prostitution and she was being physically exploited in the Spa. Furthermore, The Call Detail Records of the numbers used by the petitioner and his wife shows that the petitioner was in constant touch with his wife. The learned judge heard both the parties and observed that, “While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

The petition was rejected by looking at the age of the prosecutrix and the fact that the petitioner is a man of means, the chances of the petitioner influencing the witnesses cannot be ruled out. There are chances of the petitioner tampering with evidence and also looking at the severity of punishments, the chances of the petitioner absconding or jumping the bail also cannot be ruled out. As stated above, it cannot be said that the petitioner was unaware of the activities of his wife, rather material on record shows that the petitioner was in constant touch with his wife and was a regular visitor to the Spa and, therefore, it can be reasonably presumed at this stage that the petitioner was fully aware of the activities of his wife in the Spa.

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Under Section 313 Cr.P.C the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them: Rajasthan High Court.

Under   Section   313   Cr.P.C court has power to called accused for personally to explain any circumstances appearing in the evidence against him. At any stage, without previously warning the accused put such questions to him as the Court considers necessary. The judgment was given by the High court of Rajasthan in the case of Hariram vs. State Of Rajasthan through PP. Case No: [71/2015].

The judgment was passed by Hon’ble Mr. Justice Sandeep Mehta and Hon’ble Mr. Justice Rameshwar Vyas. The counsel for petitioner was Mr. Rinesh Kumar Gupta, Mr. Ashvin Garg and counsel for respondent represented by Ms. Rekha Madnani, AGA.

The petitioner lodged a written F.I.R to the SHO, Police Station Mahaveer Naagar, and Kota on 23.01.2009 at 05.10 p.m. alleging inter alia that on the same day between 02.30 p.m. and 03.00 p.m., he was standing at Samrat Cross Roads.   His brother Pradeep Gautam, Sunny, Sonu and Deepak Gautam were having Kachoris at nearby Namkeen shop. They got into a quarrel with Kuldeep and Brijesh over a trivial matter.  Brijesh slapped Sunny.  After this incident, all went back to their respective homes. At about 04.00 p.m.-04.30 p.m., his brother Pradeep Gautam, Sonu and Deepak had gone to Samrat Cross   Roads   for   a   stroll.   Deepak   came   running   towards   the informant and told him that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys by baseball bats and sticks etc.  The informant immediately rushed to the place of incident and saw that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys with baseball bats in front of the Saras Booth.   The informant, Deepak, Sonu and Sunny intervened in on attempt to save Pradeep from the assailant’s who escaped on their motorcycles.   Deepak also received injuries in this incident.  Pradeep became unconscious because of the grave injuries suffered in the incident and thus, 108 ambulances were called and he was rushed to Apollo Modi Hospital, where the doctors declared Pradeep to be dead.

The counsel for petitioner said that the prosecution case regarding participation of the accused   appellants   in   the   incident   is   well-proved   from   the testimony of the first informant Pramod Gautam  and the eye   witnesses   Deepak and   Brijesh   Kumar. The contention of the learned counsel for the appellants was that even if the highest allegations as set out in the testimony of the material prosecution witnesses are accepted to be true on the face of the record, the offence punishable under Section 302 IPC cannot be held proved out against the accused persons. The counsel said that the incident took place at the spur of the moment without any pre-meditation. It was further urged that the appellants’ do not have criminal antecedents.  They are young students and have suffered imprisonment of terms varying from 6 years to 7 years and thus, the conviction of the appellants should be altered either to Section 325 IPC or to Section 304 Part II IPC and they should be released on the sentences already undergone by them.

The counsel for public prosecution said that the appellants and their companions (who could not be identified) formed an unlawful assembly and brutally  assaulted  the  deceased  Pradeep  Gautam without  any rhyme or reason and inflicted a forceful injury on the chest of the deceased  by  a  heavy  implement   i.e. baseball  bat,   causing fracture of the rib and as a result, the lung was ruptured leading to instantaneous death. The counsel urged that the conviction of the appellants as recorded by the trial court does not warrant any interference by this court in these appeals.

The court after hearing the both counsels said that, a trivial verbal altercation took place between the parties, wherein accused Brijesh gave a slap to Sunny. In the second part, the deceased and his two companions Sonu and Deepak had gone to the same place where the incident of morning happened, and there it is alleged that Kuldeep, Brijesh, Hariram and 10-12 other boys came around and all these assailants, who were armed with baseball bats and sticks etc. launched an indiscriminate assault on the members of the complainant party. Further court said that the accused cannot be clothed with either the intention or the knowledge that by causing such injury on the chest of the victim, they could cause his death.

The Court relied upon Supreme Court on judgment of kashi Ram & Ors. Vs. State of Madhya Pradesh (AIR 2001 SC 2902) held that the “offence attributed to the accused would not be one punishable under Section 302 IPC, but rather that under Section 304 Part II IPC”.

The court view that the conviction of the accused appellants deserves to be toned down from the offence punishable Section 302 IPC read with Section 149 IPC to one under Section 304 Part II IPC read with Section 149 IPC. The appeals are partly allowed.

 

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