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The supreme court issues new guidelines for the bail application procedure.

Case title: Kusha Duruka Vs. State of Odisha

Case no.: Criminal Appeal No. 303 of 2024

Decided on: 19.01.2024

Quorum: Hon’ble Justice Vikram Nath, Hon’ble Justice Rajesh Bindal

FACTS OF THE CASE:

The current appeal is for bail for the accused, who has been in custody in connection with exclusive and conscious possession of the substance of Ganja.

Application for release on bail pending trial was denied. The appellant filed his first bail application in the High Court after being dissatisfied with  rejection his bail application. However, the appellant’s bail application was dismissed in high court.

The appellant filed the SLP before this Court, expressing his dissatisfaction with the situation. On 06.12.2023, the appellant’s counsel stated that while the current matter was pending before this Court, the High Court granted bail to the appellant in another bench of the high court by order dated 11.10.2023.

He presented with a soft copy of the High Court’s order. On a reading of the aforementioned order, the Court found that it made no mention of the appellant’s second bail application or the SLP’s pending before this Court, for which notice had already been issued.

The appellant filed a second bail application, in which he was granted bail by the High Court via an order dated 11.10.2023. The Court received the original record of this bail application, along with a report dated 08.12.2023 from the High Court and a note from the Hon’ble Judge who heard the case and issued the order on 11.10.2023.

The judge who granted the bail stated in his comments that at the time of hearing the second bail application, the court was not aware of the factum of the SLP’s pending before this court.

 

COURT ANALYSIS AND JUDGMENT:

The court noted that the appellant made no mention of the High Court’s decision on his earlier bail application, as well as the filing of the SLP in this Court. Though, just below the names of the parties, the appellant mentioned the number of his previous bail application. The appellant has notably refrained from discussing the High Court’s decision to reject his previous bail application and his filing of the SLP with this Court, even within the body of the bail application.

During the course of this case, a new bail application was filed not only before the Trial Court but also before the High Court. The appellant was even granted bail by the High Court.

The appellant did not specify that this was his second bail application in the one he filed with the High Court.

The court has established the following mandatory guidelines in an effort to streamline the proceedings, prevent anomalies with regard to bail applications filed in cases pending trial and even for sentence suspension, and to clear up any confusion going forward:

  • Information about the case and copies of the orders issued in the petitioner’s prior, already-decided bail application(s).
  • Information regarding any bail application(s) that the petitioner has filed, which are pending in any court either the court below the one in question or the higher court or, in the event that none are pending, express notice to that effect.
  • A report generated by the system regarding the approved or pending bail application(s) in the relevant criminal case should also be annexed by the court registry. Even in the case of private complaints, the same procedure must be followed because, even in the absence of a FIR number, every case filed in trial courts is given a unique number (CNR No.).
  • The Investigating Officer and any other officers supporting the State Counsel in court should be responsible for informing the State Counsel of any orders, if any, issued by the court regarding various bail applications or other proceedings related to the same criminal case. Additionally, the solicitors representing the parties must behave themselves genuinely as court officers.

The appeal was dismissed, but the appellant’s bail was not cancelled. The court ordered a cost of ₹10,000/- to be deposited with the Mediation and Conciliation Centre attached to the Orissa High Court.

 

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Written by – Surya Venkata Sujith

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Accused Condemned in Cheque Bounce Case for Failing to Honor Payment Undertaking; Fined Rs 5 Lakhs: Supreme Court

Case Title: Satish P. Bhatt v. The State of Maharashtra & Anr

Case No.: Criminal Appeal No. of 2024 (arising out of Special Leave Petition (CRL.) No.7433 of 2019)

Decided on: 3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE VIKRAM NATH AND HON’BLE MR. JUSTICE RAJESH BINDAL

Facts of the Case

The case centered around a petitioner who, despite numerous court directives, demonstrated a lackadaisical approach to meeting financial obligations, leading to the revocation of bail and suspension of sentence. Both the petitioner and an intervenor faced convictions under the Negotiable Instruments Act and were sentenced to ten months with a combined liability of Rs. 5 crores. Despite settlement agreements, the petitioner failed to adhere to payment schedules, prompting repeated court interventions. The High Court annulled the bail and sentence suspension due to non-compliance. The appellant contested this decision, asserting that he had fulfilled his part of the settlement. The intervenor, claiming a partnership ratio, alleged fraudulent alteration of the settlement terms.

Issue

The central issue in this case is the complainant’s extended legal struggle since 2007 and the non-realization of intended benefits from previous court orders, leading to the Supreme Court directing the appellant and intervenor to surrender for sentence within four weeks.

Legal Provision

Section 138 of Negotiable Instruments Act, 1881 provides for criminal provision regarding a cheque bounced due to insufficiency of funds.

Court’s analysis and decision

The Supreme Court has affirmed the annulment of the suspension of sentence and bail for individuals convicted of cheque bounce, citing a breach of previous commitments. Justices Vikram Nath and Rajesh Bindal, on the matter, noted that despite the High Court’s order on March 20, 2019, the convicts failed to fulfill the agreed-upon payment. Consequently, the interim protection provided through bail and sentence suspension would be revoked automatically, without the need for court intervention.

The Supreme Court observed that the complainant had been engaged in litigation since 2007 and had not yet benefited from the outcomes of previous judgments. In this context, it was highlighted that “the complainant has still not received not only the benefits of the order dated 03.07.2018 but also of the Trial Court’s order dated 26.08.2011. Despite being entitled to a higher amount as per the Trial Court’s order, he agreed to accept a significantly lesser sum. He has been involved in litigation for almost 16 years since 2007.” Consequently, the Supreme Court instructed the appellant and intervenor to surrender within four weeks to serve the sentence.

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Written by- Afshan Ahmad

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Former Maharashtra Minister Nawab Malik’s Interim Bail Extends by Six Months in Money Laundering case: Supreme Court

Case Title:   Mohammed Nawab Malik v. the State of Maharashtra

Case No: Criminal Appeal No. 2415 of 2023

Decided on:  11th January, 2024

CORAM: THE HON’BLE MS. JUSTICE BELA M TRIVEDI AND HON’BLE MR. JUSTICE PANKAJ MITHAL

Facts of the Case

On February 23, 2023, Nawab Malik was arrested by the Enforcement Directorate in connection with a money laundering case related to the notorious underworld figure Dawood Ibrahim and his associates. According to the investigative agency, Malik collaborated with a member of the D-gang, Haseena Parker (Ibrahim’s sister), and two others to fraudulently acquire a property in Mumbai’s Kurla area between 1999 and 2006. The agency asserts that since Parkar managed the illicit operations of the notorious gangster and global terrorist, the funds allegedly paid by Malik to her were ultimately utilized for terrorist financing. Consequently, charges under the Prevention of Money Laundering Act were imposed on the former legislator.

In November, 2023, Malik sought bail from a special court, but his request was denied. Due to his worsening health, Malik has been under custody in a private hospital for ongoing medical monitoring. In a subsequent appeal to the Bombay High Court, concerns were raised about the possibility of granting bail in light of the stringent provisions of Section 45 of the Prevention of Money Laundering Act. Ultimately, on July 13, Justice Anuja Prabhudessai, presiding over a single-judge bench, declined to provide temporary bail to Malik. The court decided to revisit the matter on its merits after a two-week interval.

Dissatisfied with the decision of the high court, the leader of the Nationalist Congress Party has appealed to the Supreme Court.

Issue

Whether the Former Maharashtra Minister Nawab Malik’s interim bail can be extended on medical grounds in Money Laundering case?

Court’s analysis and decision

The Supreme Court has prolonged the temporary release initially granted to former Maharashtra minister Nawab Malik by an additional six months. Malik, arrested by the Directorate of Enforcement (ED) on February 23, 2022, in a money laundering case, had been granted interim bail in August of the same year. Justices Bela M Trivedi and Pankaj Mithal presided over the hearing of a special leave petition filed by Malik against a July 2023 Bombay High Court order that denied the Nationalist Congress Party (NCP) legislator’s plea for interim bail on medical grounds.

Initially, the senior NCP leader had received a two-month interim bail on medical grounds in August. This period was subsequently extended by three months in October, following information that Malik’s health had not improved, and he was undergoing treatment for kidney-related and other ailments at a private hospital in Mumbai. On both occasions, the Enforcement Directorate did not oppose the court’s decision to grant relief.

During the hearing considering a further extension of interim relief, Additional Solicitor-General SV Raju, representing the central agency, stated,

“This request may be considered, and on medical grounds, an extension may be given.”

Granting Malik’s request for a six-month extension of interim bail, the bench declared,

“…Learned additional solicitor-general has no objection. The interim prayer is granted, and the application is allowed. Interim bail is extended for a further period of six months as prayed for. List the main matter after six months.”

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Written by- Afshan Ahmad

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Declined bail application due to severity of the crime without commenting on the merits of the case: M.P. High Court

Case Title: Devraj Dangi v. State of Madhya Pradesh

Case No: Misc. Criminal Case No. 51860 of 2023

Decided on: 6th December, 2023

CORAM: THE HON’BLE MR. JUSTICE ANIL VERMA

Facts of the Case

As per the prosecution story, prosecutrix lodged an FIR at P.S. Boda, District Rajgarh by stating that two years prior to the incident, her father /applicant naked his minor daughter by putting off her clothes and committed rape upon her. On 03.03.2023, at about 2:30 AM, present applicant again repeated the same act and tried to rape her. A case has been registered against the present applicant.

The applicant has denied the allegations and claimed to be innocent. The prosecutrix, during cross-examination, did not support the prosecution’s story and turned hostile. The applicant has sought bail, citing false implication and the prosecutrix’s lack of support for the prosecution’s story. On the other hand, the State has opposed the bail application, emphasizing the severity of the alleged crime.

Legal Provision

Section 439 of the Code of Criminal Procedure, 1973 grants special powers to the High Court and the Court of Session regarding bail.  The High Court or Court of Session may direct that any person accused of an offense and in custody be released on bail, and if the offense is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. The High Court or Court of Session may also set aside or modify any condition imposed by a Magistrate when releasing a person on bail.

Issue

Whether the applicant should be granted regular bail under Section 439 of the Code of Criminal Procedure, 1973 relating to the commission of offence punishable under Sections 376(2)(n), 376(3), 376(1), 376(2)(f), 506 and 376(AB) of IPC and Section 6 of POCSO Act?

Court’s Analysis and Decision

The Hon’ble High Court of Madhya Pradesh has rejected the first bail application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 on the ground that prosecutrix is a minor and innocent girl of 12 years of age and she was raped by her father. The trust and faith that a young girl would normally have in her father and the sanctity of family relationships were shattered by the heinous, inhumane and shameful act of her father.

The prosecutrix has not supported the prosecution’s story during cross-examination. The cross-examination took place after 10 days of examination-in-chief, which could have influenced her testimony by her father/applicant and other family members. The MLC report, which supports the prosecutrix’s statement, indicates redness and swelling over the labia minora and clitoris and her private parts. In the query report, concerned Doctor opined that hymen was found torn and swelled due to the extreme pressure of penis of someone.

In view of the barbaric sexual assault and severity of the instant crime, without commenting on the merits of the case, the Court is not inclined to grant bail to the present applicant.

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Written by- Afshan Ahmad

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It Is Necessary To Fulfil The Twin Conditions Which Are Required For Grant Of Bail Under The PMLA, 2002: High Court Of Chhattisgarh

Title: Mr. Rajnikant Tiwari V Directorate Of Enforcement, Goi

Citation: 2023:Cghc:26629

Coram: Hon’ble Shri Justice Narendra Kumar Vyas

Decided On: 02.11.2023

Introduction:

This is first bail application filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973, for grant of anticipatory bail, who has apprehension of being arrested in connection with Crime dated 29.09.2022 registered at Police Station- Directorate of Enforcement, Zonal Office, Raipur (C.G.) for the offence punishable under Sections 186, 204, 353, 120B, 384 of IPC, Sections 3 & 4 of the Prevention of Money Laundering Act, 2002.

Facts:

The case of the prosecution is that during a search and seizure investigation under Section 132 of the Income Tax Act conducted on 30.06.2022 and one Mr. Suryakant Tiwari at a hotel room of Hotel Shereton Grand, Bengaluru, certain incriminating materials are said to have been found, based upon which a complaint was lodged by the Income Tax Department at the Kadugodi, Police Station Bengaluru alleging offences under Sections 186, 204 and 353 read with Section 120B of the IPC which led to the registration of the FIR. Further investigation was conducted. In the course of the investigation, main accused- Suryakant Tiwari was summoned and was arrested on 13.10.2022.

It is further case of the prosecution that the prosecution has recovered diaries from the possession of Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari, from which it would reveal transaction of cash money between Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari. It is also case of the prosecution that object of Suryakant Tiwari to tamper and destroy the important documents as well as electronic gadgets and Suryakant Tiwari along with his brother, Rajnikant Tiwari and his associates Hemant Jaiswal, Jogendra Singh, Moinuddin Quaraishi, Nikhil Chandrakar, Roshan Singh and others were involved in criminal conspiracy to run a parallel system of collecting illegal levy on coal and were doing illegal and unaccounted cash movement as per instructions of Suryakant Tiwari.

All the above mentioned associates of Suryakant Tiwari had admitted in their statements recorded before the Income Tax officials that they were doing the illegal levy collection on the instructions of Suryakant Tiwari. The proceeds received from the above referred to action were being used for taking undue advantage and to influence public servants by corrupt and illegal means and by exercise of personal influence.

The role of the present applicant is that he was an active member of the extortion syndicate. He was the focal point where all the extorted cash was deposited and was stored and subsequently dispatched for utilization as per the instructions of Suryakant Tiwari.

Learned Senior counsel for the applicant would submit that it is a case where the applicant would be entitled for the benefit under the exceptions carved out under Section 45 of the PMLA, 2002. He would further submit that the applicant has cooperated with the Investigating Agency on all occasions and there is no further possibility of the applicant misusing the bail or would influence in any manner the investigation or tampering of the evidence nor is there any possibility of the present applicant absconding either.

learned counsel for the respondent has filed reply to the application mainly contending that the present applicant has played specific role in commission of offence. It has been further contended that ED investigation revealed that unless cash @ Rs. 25/tonne of coal transported was paid to associates of Suryakant Tiwari, the concerned mining officer in the office of collectorate would not issue the requisite transit pass. All of this was facilitated/coordinated by Suryakant Tiwari with clout of Smt. Soumya Chaurasia and other Government officials. It has been further contended that once these associates of Shri Suryakant Tiwari received the additional charge of Rs. 25 per tonne of coal to be transported, message was then communicated to the Mining Officer (s) and thereafter the delivery orders were cleared for transport.

Court’s Analysis and Judgement:

Involvement of the applicant is reflected. The material collected by the Enforcement Directorate has not been rebutted which also prima facie reflects about involvement of the applicant. The record of the case would further demonstrate that the applicant is unable to fulfil the twin conditions which are required for grant of bail under the PMLA, 2002, is equally applicable for grant of anticipatory bail, which has not been satisfied by the present applicant.

Considering the facts and law, gravity of offence, possibility of tempering of the witnesses and prima facie considering the fact that the applicant is unable to satisfy twin conditions of Section 45 of PMLA, 2002 for grant of anticipatory bail. Due to which the court was not in the opinion to grant the applicant the anticipatory bail. Hence the application was rejected.

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Written by- Sushant Kumar Sharma

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