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Parole Denied: Delhi High Court Rejects Petitioner’s Plea Due to Existing Marriage and Co-habitation with Live-In Partners

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 Case Name:  Sonu Sonkar v. The Lt. Governor, Delhi & Ors 

Case No.: W.P.(CRL) 889/2024 & CRL.M.A. 13860/2024 

Dated: May 08, 2024 

Quorum: Justice Swarana Kanta Sharma 

 

FACTS OF THE CASE: 

The petitioner, who is currently being held in Jail No. 8/9, Tihar Jail, Delhi, was found guilty under Sections 302/34 of the Indian Penal Code, 1860 (the “IPC”) by the learned Trial Court in a judgement dated November 15, 2011. The petitioner was also fined Rs. 5,000 and sentenced to life in rigorous prison. On March 23, 2012, this Court dismissed the Criminal Appeal No. 1590/2011 that was submitted in opposition to the aforementioned judgement. According to the nominal roll, the petitioner in this case has not filed an SLP in the Hon’ble Apex Court to contest the judgement of this Court on 23.03.2012.  

Including a period of about 02 years and 09 months of remission, the petitioner’s case states that he has been in judicial custody for approximately 16 years and 10 months. He also claims that he has been married for three years, having tied the knot with Ms. T on January 10, 2021. The petitioner has allegedly been in judicial custody since then, which has prevented him from fully consummating his marriage to Ms. T. According to the record, which is annexed to the main writ petition, Ms. T applied to the correctional authorities on January 2, 2024, asking for the present petitioner to be released on parole solely on this basis.  

In addition, it is mentioned that Ms. T, the petitioner’s Pairokar, has filed the main writ petition, her Aadhaar card, and the rent agreement dated April 7, 2022, at which address she currently resides, along with the petitioner’s commitment to stay with her at the same address.  

 

ISSUES: 

  • Whether the petitioner is guilty of concealment of facts and not approaching the Courts with clean hands? 
  • Whether a ‘live-in partner’ will be covered under the definition of ‘family’ as provided under Rule 1201 of Delhi Prison Rules, 2018 for the purpose of grant of parole? 
  • Whether a convict is entitled to grant of parole on the ground of maintaining conjugal rights and procreation with his ‘live-in partner’, when he already has a legally wedded wife? 

 

LEGAL PROVISION: 

  • Section 482 of the Code of Criminal Procedure, 1973- Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 
  • Section 302 of IPC- Punishment for Murder. Those who commit murder will be punished with life in prison or the death penalty, as well as a fine. 

 

CONTENTIONS OF THE PETITIONER: 

The learned counsel for the petitioner contends that Ms. T, the petitioner’s wife, has stated her desire to begin a family with the petitioner, Ms. T, has been denied the opportunity to bear children despite the fact that she has never broken the law. It is further maintained that denying his wife a conjugal contact will have a negative impact on her rights. It is further claimed that the petitioner’s capacity to uphold social connections will suffer if parole is denied.  

Additionally, it is said that the petitioner was freed from judicial custody on September 11, 2019 on the Honourable Lieutenant Governor’s advice, although he was taken into custody again in a new case, as a result of advice from the Honourable Lieutenant Governor. It says that the petitioner was granted bail in the said case. 

The petitioner further claims that he has previously been granted parole and furlough on multiple occasions, that he has never abused the freedoms bestowed upon him, and that he has always turned himself in on time to the jail authorities. According to the statement, on July 20, 2023, the petitioner was granted parole for ten days. The court noted that the petitioner’s wife is the pairokar in this case, and that the parole was given to him in order to care for her as she has no other carers.  

The petitioner further argues that in cases similar to this one, where the accused who have been granted parole and furlough have not abused the privileges, the courts have repeatedly granted parole on the grounds of upholding social ties and preserving marriage and family relationships. Thus, it is declared that the petitioner shall be allowed parole for a term of four weeks in order to consummate his marriage to his wife and to continue his social connections.  

It is also specified that the petitioner must provide care for his wife, Ms. T, and get funding for her medical needs. It is noted that the petitioner has filed two more writ petitions, with the numbers 2931/2023 and 1661/2023, asking for different remedy. These petitions are currently pending before this court and are scheduled to be listed on July 15, 2024.  

 

CONTENTIONS OF THE RESPONDENTS: 

The respondent’s counsel argues that as Ms. T is not the petitioner’s wife, the learned ASC for the State opposes the current writ petition and claims it was filed on frivolous and false grounds. It is further indicated that the petitioner has not been formally separated from his first wife, Ms. A, as of yet, and that the petitioner is already married to this woman (name withheld from the judgement), according to the Status Report. This Court should thus not permit the petitioner to be granted parole on the grounds that he must consummate his relationship with his putative wife, Ms. T. 

Additionally, the petitioner argues that the allegations made in the application for the petitioner’s release on interim parole while the current writ petition is pending should be immediately rejected for the same reason: Ms. T, the petitioner’s purported second wife, is not the petitioner’s legally wedded wife, and during the investigation, she was unable to provide any documentation proving her marital status. As a result, it is urged that the current petition and the temporary application be denied. 

 

COURT’S ANALYSIS AND JUDGMENT: 

The petitioner has repeatedly requested parole or furlough from this court until the year 2019, among other reasons, including medical ones related to his wife’s illness, medical treatment, or surgery (Ms. A.). The court carefully noted this. which the parole had been sought by him. 

It is important to note that Ms. A. was the wife’s name as stated in both the petition and the medical treatment documents that were annexed to the petitions. This is relevant information because the petitioner in the aforementioned writ petitions had requested parole due to his wife’s illness.  

The petitioner was freed from jail on September 11, 2019, at the recommendation of the Sentence Review Board. This is also noted by the Court at this point. 

But on March 1, 2023, he was arrested once more because the Hon. Lt. Governor of the GNCTD had revoked his sentence through order, dated September 24, 2022. This was due to the petitioner’s alleged offence, for which a FIR with the number 539/2021 had been filed at Subzi Mandi Police Station in Delhi. The petitioner was accused of committing another crime, for which Section 307/34 of the Indian Penalties Code, and for which he had breached the terms and conditions of his early release. The petitioner has been under court supervision ever since. 

It’s interesting to note that while the petitioner had previously requested release in order to treat or have surgery for his wife Ms. A, the petitioner’s wife’s name was listed as Ms. T in this petition. By order dated July 20, 2023, 19 he was granted parole in the aforementioned petition for a term of 10 days. The petitioner also identifies Ms. T as his spouse, whom he wed on January 10, 2021, in this current plea. Nonetheless, the petitioner states that Ms. T is his second wife and live-in partner in the application for the issuance of temporary parole while the main petition is being considered.  

The petitioner, Mr. Sonkar, was the subject of a detailed discussion of his conduct in the preceding paragraph, the court decided. Through his pleadings in many writ petitions, he has misled and misled the courts by failing to disclose that Ms. T is his live-in partner rather than his lawfully wedded wife. Furthermore, the record shows that the petitioner is actually married to Ms. A, with whom he has three children. It is also not the petitioner’s case that he is divorced from Ms. A. Furthermore, the petitioner has not disclosed any of these facts to this Court through Mr. Sonkar.  

The court, finally, decided that given he already has a lawfully married wife and three children born outside of that union, the court determined that Mr. Sonkar is not eligible for parole due to his desire to procreate or continue a marital relationship with his second wife or live-in partner.  

 

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Judgment reviewed by Riddhi S Bhora. 

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NIA Chargesheeted Accused in IS Recruitment Conspiracy: Court Upholds Denial of Default Bail, Validates Sanction under UAPA

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Case Name:  Ammar Abdul Rahiman v. National Investigation Agency  

Case No.: CRL.A. 79/2024 & CRL.M.A. 2650/2024 

Dated: May 06, 2024 

Quorum: Justice Suresh Kumar Kait and Justice Manoj Jain 

 

FACTS OF THE CASE: 

The Islamic State of Iraq and Syria (ISIS) was known to be affiliated with a man named Mohammed Ameen Kathodi@ Abu Yahya (A-1), who was reportedly running multiple ISIS propaganda channels on several secure social media platforms. This information was deemed credible and reported to the Central Government. He had been indoctrinating naive and credulous Muslim adolescents and spreading the violent Jihadi doctrine of ISIS through these means.  

According to the investigative agency, he (A-1) and his friends intended to carry out a religious pilgrimage, or “Hijrah,” to areas under ISIS control and Jammu and Kashmir (J&K) in order to commit acts of terrorism. They had obtained virtual numbers and phoney SIM cards in order to create multiple identities on secure social media chat platforms. They then used these to communicate with other like-minded individuals in order to raise money for funding ISIS operations and to carry out anti-national crimes in India. 

On March 15, 2021, three individuals were taken into custody: Abdul Karim Anwar (A-2), Rahees Rasheed (A-3) and accused Mohammed Ameen Kathodi @ Abu Yahya (A-1). Their involvement was made clear by the evidence gathered for the investigation, which identified them as ISIS members—a terrorist group that is outlawed. On September 8, 2021, the National Investigating Agency (NIA) issued the first chargesheet against them, alleging a variety of violations covered by the Unlawful Activities (Prevention) Act, 1967 (better known as “UAPA”) and the Indian Penal Code.  

The appellant (A-10) in this case was taken into custody on August 4, 2021, and on January 28, 2022, a supplemental chargesheet about him and the other accused parties was submitted. 

 

LEGAL PROVISION: 

Section 120B of IPC- If there is no specific provision in this Code for the punishment of such a conspiracy, then anybody found to be a party to a criminal conspiracy to commit an offence that carries a sentence of death or imprisonment for a period of two years or more would be punished as though they had assisted in the commission of the offence. 

Section 121A of IPC- Anybody who, whether inside or outside of India, plans to carry out any of the offences listed in section 121 or plots to intimidate the Central Government or any State Government by using force or the threat of using force will be imprisoned for life or for ten years. 

Section 17 of UAPA- -Anyone who, whether directly or indirectly, raises, provides, or collects money for any person or people, whether from legal or illicit sources, or tries to provide to, raises, or collects money for any person or people knowing that the money is likely to be used, in whole or in part, by that person or people, or by a terrorist organisation, terrorist gang, or by an individual terrorist, to commit a terrorist act, whether or not the money was actually used for the commission of the act, shall be punished with a minimum sentence of five years, but it may be extended to life imprisonment. 

Section 38 of UAPA. Offence relating to membership of a terrorist organisation. An offence related to membership in a terrorist organisation is committed by someone who identifies or claims to be linked with one with the objective of advancing the operations of the organisation 

 

CONTENTIONS OF THE APPELLANT: 

The learned counsel for the appellants strongly contended that the appellant, who is about thirty years old, is a law-abiding individual with strong social ties and no criminal history. It is emphasised that the main accusations levelled against the accused are that his sister-in-law (A4) radicalised him to support ISIS, and that his phone contained multiple photos demonstrating that he had access to extreme sermons, ISIS-related videos, and accounts on Instagram that supported the group.  

The fact that he was seeing content that had been downloaded into his electronic devices would not be significant in and of itself because there is no proof that he has ever shared, acted upon, or taken any action related to the content. 

It is also asserted that, of the approximately 1000 pages that the involved Forensic Labs claim to have recovered from his two mobile phones, the prosecution appears to be relying on six pages of photographs and one page of browser history (D-140). He has never acknowledged being a member of, engaged in, or been connected to any terrorist group, despite the fact that pictures and online history have been recovered. 

It is further stated that the mere fact that charges had been filed would not prevent bail from being granted, even though it would be extremely difficult for any accused person to get bail in such a case.  

It is argued that the learned Trial Court should have conducted a surface analysis of the evidence’s probative value even though the charges had been established. If this had been done correctly, it would have become evident to the Trial Court that there was no admissible evidence, indicating a prima facie case against the accused.  

 

CONTENTIONS OF THE RESPONDENTS: 

The argument is that the chargesheet was presented to the appropriate court regarding the appellant on January 28, 2022, and the learned trial court determined the charges against him on October 31, 2022, specifically noting that there was a prima facie case for offences under Section 120B read with Sections 38 and 39 of UAPA read with Section 2(o) and Section 13 of UAPA.  

It was also argued that A-1 Mohammed Ameen Kathodi@ Abu Yahya had already passed away, according to the information provided regarding the accusations made against the appellant and his co-accused. A-2 Mus’Hab Anwar and A-3 Rahees Rasheed were freed on default bail, and A-8 Obaid Hamid was released on bond because he had not been charged with any offences covered by Chapter IV or Chapter VI of the UAPA. 

It is asserted that the thorough investigation unequivocally reveals the existence of a criminal conspiracy involving all of the accused, and that the Investigating Agency has successfully deciphered this conspiracy with the aid of several pivotal events. 

Four of the appellant’s mobile devices are allegedly found during the alleged search of their residential property on August 4, 2021, in accordance with Search and Seizure Memo (D-76). For digital data extraction, these were forwarded to CERT-In. When the report and data from these digital devices were carefully examined, it was discovered to contain a number of incriminating materials, including images of different Muslim extremist preachers and movies from ISIS.  

In 2015, it was argued that ISIS was declared a terrorist organisation and that, despite this, there was sufficient evidence in the record to support the appellant’s continued affiliation with and support of the organisation. ISIS is listed as a banned terrorist organisation under the First Schedule of the United Antiterrorism Provisions Act (UAPA), with serial number 38. The claim also makes reference to social media material that was acquired from the accounts of A-10 and his sister-in-law/co-accused, Deepthi Marla (A-4). It was established that A-4 and A-6 had talked about their intentions for the Hijrah, and that A-10 was a part of this plot.  

 

COURT’S ANALYSIS AND JUDGMENT: 

According to the court, they were also aware of Section 43-D(5) of the UAPA, which establishes a kind of restriction and limitation on the granting of bail in the event that the accused has committed offences covered by Chapter IV and/or Chapter VI of the UAPA and the prosecution’s case against them is presumed to be valid.  

This Court can still very well contemplate granting bail under the aforementioned circumstances, even though the allegations have been established and the order in question has not been contested. We might also refer to Chandeep Singh (above), where it was noted that the trial court has a duty to consider the role of the accused by carefully reading the complaint and taking into account the limitations imposed by Section 43-D(5) of UAPA, adding that bail cannot be denied simply because the charges have been filed.  

As a result, it was clear that the court in a UAPA case might take bail into consideration even after the charges were established. The right to request bail is unalienable and may be used at any time. It never goes out of style. 

He never had access to the texts that were sent between him and his co-accused, so he cannot be held accountable for them. To claim that someone was operating in support of a prohibited terrorist group would be impossible if all they did was follow news reports on the Middle East and Israel-Palestine conflict or listen to hate speeches from radical Muslim preachers.  

In light of this, it appears incorrect and inappropriate to use Sections 38 and 39 of the UAPA. The court ruled that the statutory bar under Section 43-D (5) would only apply in cases where the accused person’s offence is covered by either Chapter IV or Chapter VI of the UAPA. The appellant has not been accused of committing any crimes under Chapter IV, and in light of what we have already discussed, we believe that the evidence in the record does not point to the appellant having committed any crimes under UAPA Sections 38 or 39, which are under Chapter VI.  

The appellant was ordered to be released on bail under any terms and restrictions that the concerned learned Special Court deemed appropriate and fitting after the court granted the current appeal. The prosecution may request the cancellation of bail without bringing this case before this court if there is any violation of any condition set forth by the learned Trial Court, or if the appellant makes any direct or indirect threats or attempts to influence any witness, or if the appellant tries to delay the trial.  

The court further stated that the aforementioned remarks were only intended to be used in determining the bond amount and were tentative in nature.  

The statements above, which were clearly not a conclusive statement regarding the merits of the case, will not persuade the Learned Trial Court. The trial court would have the freedom to reach any decision following a thorough review of the material, as the court has limited its proceedings to the mere claims thus far.  

 

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Judgment reviewed by Riddhi S Bhora. 

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Granting Pre-Arrest Bail for Accused Individuals Residing Abroad

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Abstract:

The article basically highlights on the aspects whether anticipatory bail should be given to the accused who are residing in abroad, especially is they are charged for non-bailable offences. An application for pre-arrest bail can be entertained even though the applicant is residing abroad since he has a fundamental right to travel abroad and also a fundamental right to access courts for determination of his rights.

Key words: interim bail, anticipatory bail, regular bail, bail and non-bailable offences.

Introduction:

Law is a dynamic field which consistently changes or more specifically, improvises itself and takes its shape as per the needs and requirements of common man. An offence under statutory meaning, it is an act or omission made punishable by any law for the time being in force. The term ‘offence’ is itself categorized into two groups i.e; bail and non-bailable offences. Bail is defined under CrPC 1973. But it could also be defined as interim release of an accused person accompanied by some sort of security with the belief that the person would appear before the court whenever and wherever called. However, in this Article the focus is on Pre arrest Bail i.e; Anticipatory Bail basically governed under Section 438 of the Code of Criminal Procedure. Section 438 is procedural provision which is concerned with the personal liberty of the individual. Section 438 has a clear nexus with the personal liberty which is protected from unfair, unjust and unreasonable deprivation by Art. 21 of the Constitution.

Remedies available to an Accused upon accusation of a Crime:

 Regular bail- A person who is arrested and in police custody can apply for a regular/daily bail. Bail provisions are given under Section 437 and 439 of the Code of Criminal Procedure. Under Section 437 Cr.pc courts other than High Court and Sessions grant bail, whereas under Section 439 Cr.pc High courts and Sessions Court grant bail.

 Interim bail- Interim bail is awarded by a direct order of the Court to temporarily release an accused for a short term. The Courts noticed that interim bails are being misused in many cases and have decreased the number of interim bails issued.   

 Anticipatory bail:

An anticipatory bail is defined under code of criminal procedure of 1973. However, Section 438 of the code deals with the anticipatory bail in India. ‘Anticipatory’ as the word suggests that when any person apprehends that he may be arrested on an accusation of having committed a non-bailable offence, he may approach the High Court/ Session Court for a direction that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and by that it acts as a preventive measure for the accused. The guardians of the Law had to come with this legislation or bare minimum provisions that could deal with the issue of anticipatory bail. As, the so-called influential people tend to take advantage of this provision and detain their nemesis into false cases with the purpose to create nuisance in their lives and defame them by putting them behind the bars.

Necessities required for granting the Anticipatory Bail:

The High Court and the Sessions Court especially while granting an anticipatory bail have to keep certain conditions in the mind. These conditions are mentioned in the Section 438(2). The following are the conditions for an anticipatory bail:-

 The applicant must be present whenever and wherever called upon by the court for police investigation as required by the police officer.  The applicant shall not leave the country without the court’s consent. The applicant must submit his personal details like contact number, permanent address and a subsidiary address to the concerned police officer. The applicant shall not use any undue influence like use of threat, inducement or make any lucrative promise to any person of importance of the case. The charges framed against the applicant are vague and are generic in nature.

Can a person while residing outside India file for an anticipatory bail?
  
The Hon’ble Kerala High Court in Vijay Babu v. State of Kerala and Anr. (2022) held that a person can file for a pre-arrest bail if residing outside India. Section 438 of CRPC 1973, does not include a provision which specifically states that a person residing outside India can’t file for an application of Anticipatory bail. It is quite possible for a person to be apprehended even outside the country for an offence committed in India, due to advancements in tech & communication. In case, a person residing outside India, there is a possibility that he can be arrested under Sections 188 of CrPC and Sections 4 of IPC, the statute empowers such a person to seek protection from such kind of arrest. According, to the single bench of Judge bench of Hon’ble Justice Bechu Kurian Thomas, a bail application can be filed by a person residing outside India on the condition that “The applicant must be present in the country i.e., within the court’s Jurisdiction prior to the final hearing in order for the court to enforce proper conditions as per the statute.  

Judicial pronouncements:

In Anu Mathew v. State of Kerala- The Hon’ble Judge while considering the Anticipatory Bail has referred the case to Division Bench by discussing the various case laws which are as given below: “In Shafi Vs State of Kerala: A person sitting in another country cannot file an application under S.438 of the CrPC before the Court apprehending arrest. There are no averments in the Bail Application that there is an apprehension of arrest to the petitioner in the country w ere he is now residing based on the accusation in this case. Even in such a situation, an application under S.438 CrPC cannot be entertained by this court. A bail application under S.438 CrPC cannot be filed before this Court by the petitioner sitting in an armchair in a foreign country. He is not entitled an order under S.438 CrPC in such a situation. Jurisdiction of this Court under S.438 CrPC is discretionary” The Learned Judge has referred the following issues to Higher Bench, If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a non-bailable offence against him, and thereafter if he file bail application under Section 438 CrPC whether the bail court should entertain such a bail application? When an accused went abroad, after knowing that he is an accused in a nonbailable offence, and thereafter filing a bail application before this Court, whether he is entitled interim bail as per Section 438(1) CrPC? Whether the bail court has jurisdiction to pass orders restraining the Police in arresting accused without passing interim bail orders.

In Princy Nijoy v. UOI- While considering the bail application, the Honourable High Court has discussed the following case laws: “In Anu Mathew vs. State of Kerala [2023(3) KHC 151], a Division Bench of this Court has succinctly laid down the law that if an accused has absconded from India and gone abroad knowing fully well about the registration of a crime in respect of a non-bailable offence, though he may technically have a locus standi to maintain an application for pre-arrest bail, but, if the Court is convinced that the accused had absconded and fled away from the Law Enforcement Agencies, it would not be right and proper for the Court to exercise its jurisdiction under Section 438 of the Code. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) SCC 694] the Hon’ble Supreme Court has held as follows: “No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. 
In Sibbia case [(1980) 2 SCC 565: 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. In Jai Prakash Singh v. State of Bihar and Anr.[(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. The Hon’ble Judge held that, on consideration of the facts, the materials placed on record, the rival submissions, the law referred, and on comprehending the nature, seriousness and gravity of the offences alleged against the petitioner, that the petitioner is abroad for the last more than two years, and further that the petitioner custodial interrogation is necessary and recovery is to be effected, I am not inclined to exercise the discretionary powers of this Court under Sec.438 of the Code and grant an order of pre- arrest bail in favor of the petitioner”. 

Conclusion:

Anticipatory bail, is a preventive measure for an individual who has an 
apprehension of arrest and to save him from police abuse and ill treatment by the system in general and also it acts as a safeguard from the powerful people, when they are involved in a case. The Hon’ble Supreme Court of India has emphasised on this point time and again through a catena of judgements. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely. That being the case as far as an individual who flees the Country to escape from clutches of law and seek the relief of Section 438 from a foreign country needs to be adjudged on case to case basis with regard to nature of offences alleged and various other facts. Further, we may await for the Higher Bench ruling on the said fact for settlement of the issue.

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“Period of Detention Can’t be Sole Basis to Grant Bail, Gravity of Offence Must be Considered: MADRAS HIGH COURT”

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“Period of Detention Can’t be Sole Basis to Grant Bail, Gravity of Offence Must be Considered: Madras HIGH COURT”

Case Title: K. SelvaKumar vs. The Deputy Superintendent of Police, Tamil Nadu

Case no.: Civil Appeal No. 3391 of 2011

Dated on: 15th April 2024

Quorum: Hon’ble Mr. Justice M. Nirmal Kumar

FACTS OF THE CASE
On 27.12.2023 at about 15.30 hours the defacto complaint lodged to the respondent police stating that he and his uncle Sengottaiyan were hunting birds using slingshot, at that time, some stones hit the hen and cocks in A1 property. The hens and cocks got panic, started making noise and were flying here and there. On hearing the noise of the birds, A1 came out of his house, caught hold the defacto complainant and Sengottaiyan, called the villagers and friends who tied them in the coconut tree and the accused beaten them black and blue. Further Sengottaiyan died. In this case A4 is still absconding. Special court dismissed the bail application of the appellant and had now preferred the present appeal.
Criminal Appeal filed under section 14(A)(2) of SC/ST Act, the appellant who is arrayed as A7 in crime NO.783 of 2023 for the offence under section 147,148, 294(b), 342,324,506 (ii), 307, 302 IPC r/w. 3(1)(r), 3(2)(b) of SC/ST (POA) Act, 2015 filed this appeal/bail application. This court by order dated 10.01.2024 directed the appellant to surrender before the Trial court and on such surrender, directed the special judge to consider his bail applicant on the same day of his surrender.

CONTENTIONS OF THE APPELLANT

The learned ASG, his submission was that the appellant is innocent and not committed any offence. The appellant was implicated on the confession of co-accused. In this case bail was already granted by Special Court TO A1 IN Crl.M.P.NO. 376 of 2024 on 20.02.2024, A2, A4 to A6 granted bail by the Special Court in Crl.M.P.NO.378 of 2024 on 20.02.2024 and A8 granted bail by the Special Court in Crl.M.P.NO. 421 of 20240n22.02.2024.
He would submit that the Special Court granted bail to the accused finding that they were in confinement for 56 days and 54 days, 56 days respectively and also for the reason that investigation is almost completed. But the appellants bail application was dismissed for the reason that the appellant was in prison only for 30 days and the investigation as far as the petitioner, it is in premature stage. Now, the appellant is in confinement for more than 60 days and hence, prayed for bail.

CONTENTIONS OF THE RESPONDENTS

Submission by the Respondents, has argued that the on 14.03.2022 some unknow persons searched and reached them, attempted to tamper the witness to fizzle out the case of its rigor. For the threat and to dissuade the witnesses. Submitted that the wife of sengottaiyan was sanctioned the compensation amount of Rs.6 lakhs. The prosecution though represented that they were informed about notice and also made their objection while granting bail to the other accused is not proper.
Respondent further submitted that the accused in this case was very influential persons belonging to the dominant community with muscle and political power, and played fraud on the court in collision with the person who are entrusted with duty to safeguard the victims from oppression, all joined hands with the offenders and facilitated them to grant bail.

LEGAL PROVISIONS
Section 14(A)(2) OF SC/CT Act: An appeal shall lie to the high court against an order of the special court or the Exclusive Special court granting or refusing bail.
Section 147: whoever is guilty of rioting, shall be punished with imprisonment of either description for term which may extend to two years or with fine or both.
Section 148: whoever is guilty of rioting, being armed with deadly weapon of offence is likely to death shall be punished with imprisonment of either description for term which may extend to three years or with fine or both.
Section 294(b): whoever commits offence such as sings, recites or utters any obscene songs near any public place, shall be punished with imprisonment of either description for term which may extend to three months, or with fine or both.
Section 342: whoever wrongfully confines any person shall be punished with simple imprisonment of either description for a term which may extend to one year, or with fine or both.

COURT’S ANALYSIS AND JUDGEMENT
Considering the submission made and on perusal of the materials the sum and substance is that defacto complaint was not informed, no summons issued and his objection were not heard in any of the bail applications as mandates under section 15A (3) of the SC/ST (POA) Act.
The rationale for the decision, the term refers to key factual point or chain of reasoning in case that drives the final judgement. Through analysis of the fact, the judge applies appropriate rule or principle of law and makes ruling on the verdict of case. It is generally binding on lower courts and later and later judgement, ratio decidendi is a norm law that the judge openly or implicitly treats as an essential step in reaching the decision.
It is informed by the legal aid counsel appearing for the third respondent that already cancellation bail petitions flied for suppressing the facts and fraud committed in obtaining bail. Further, granting of bail in cases under SC/ST Act cannot be on the ground of period of detention or the stage of investigation, it has to be considered on the gravity and nature of the offence. Hence present bail petition stands dismissed.
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Judgement Reviewed by – HARIRAGHAVA JP

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At the stage of considering bail, Court to exercise utmost diligence in evaluating the prima facie allegations against the accused- Delhi High Court

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Case title: Sunny Alias Ravi Kumar v. State of NCT of Delhi.

Case no: Bail Appln. 3580/2023

Dated on: 29th April, 2024

Quorum: Hon’ble Mr. Justice Amit Mahajan.

Facts of the case:

The present application is being filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) seeking a grant for regular bail in FIR No.255/2023 on 10.03.2023 for offences under Sections 376/354D/506 the Indian Penal Code, 1860 (IPC). It is alleged that the applicant used to stalk the prosecutrix and claimed that he loved her. It was stated that after the prosecutrix rejected the applicant, the applicant had threatened her. It was declared that on 01.12.2021 the applicant had called the prosecutrix at GTB Nagar metro station, the applicant then had threatened the prosecutrix with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. In December 2021 the applicant took the prosecutrix to his friends house in Aadarsh Nagar, and forced her to have sexual relations with him for the first time. It was stated the applicant took the prosecutrix to a hotel named Welcome Hotel 5-6 times and forced her to have sexual relations with him. It is alleged that the applicant took the prosecutrix to Haridwar on April,2022 and allegedly married the prosecutrix there. Later on, the prosecutrix found out that the applicant was married and also had two children. It was also stated that the applicant would demand gifts from the prosecutrix leading her to give him nearly Rs. 1.5 lakhs in cash and many other items. On 07.03.2023, the applicant had called the prosecutrix when he was intoxicated and told her to meet him at Aadarsh Nagar Metro Station from there the applicant took her to the Welcome Hotel and forced her to have unnatural sex with him. A medical examination was conducted of the prosecutrix at BJRM hospital Delhi, and her statement was recorded under Section 164 of CrPC. Chargesheet was filed under Section 376/354D/506 of IPC.

Contentions of the prosecution:

It was alleged that the applicant used to stalk the prosecutrix and also claimed that he was in love with her. It is alleged that after the prosecutrix rejected the advances of the applicant, the applicant threatened her. It was stated that on 01.12.2021, the applicant called the prosecutrix at GTB Nagar Metro Station. When the prosecutrix reached to meet him, the applicant threatened her with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. It was alleged that in December, 2021, the applicant took the prosecutrix to one of his friend’s house in Aadarsh Nagar, and forcefully established sexual relations with the her for the first time. It is alleged that thereafter, the applicant took the prosecutrix to a Hotel, namely, Welcome Hotel, about 5-6 times, and forced her to have sexual relations with him there. It is alleged that the applicant also took the applicant to Haridwar in April, 2022 for three days and allegedly married the prosecutrix there. Later, found out that the applicant was married and had two children. It is alleged that the applicant used to demand gifts from the prosecutrix and she had allegedly given ₹1.5 lakhs in cash, two mobile phones, clothes and two silver rings to the applicant, and also resorted to violent means when she did not pay heed to his demands. on 07.03.2023, the applicant called the prosecutrix when he was intoxicated and forced her to meet him at the Adarsh Nagar Metro Station, the applicant thereafter took the prosecutrix to the Welcome Hotel and forced her to have unnatural sex and beat her when she refused. A medical examination of the prosecutrix was conducted at BJRM Hospital, Delhi and her statement was also recorded under Section 164 of CrPC. The chargesheet was filed under Section 376/354D/506 of IPC. The Public Prosecutor for the State opposes the present bail, saying that there is a high possibility that the applicant could extend the threats to the prosecutrix’s family, and therefore, the bail application to be dismissed.

Contentions of the applicant:

The case that was filed against the applicant is basically to humiliate, torture him and to harass him and he has been in judicial custody since 10.03.2023. It was stated that there are material differences in the FIR and the statement of the prosecutrix recorded under Section 164 of CrPC. It is also contended that as clear from the contents of FIR, the relationship between the applicant and the prosecutrix was consensual in nature and had continued for two years. It was further submitted that the custody of the applicant is not necessary for the investigation, as there are no chances of the applicant to abscond or flee from justice, and that the promise of marriage is completely absurd and untrue. Lastly, he says that there has been an unnecessary delay in the filing of an FIR which increases the suspicion about the allegations made by the prosecutrix.  

Issue:

Whether the Bail application filed by the Applicant is to be allowed?  

Legal provision: 

Section 376 of IPC- Rape the punishment is not for less than 10years, which may extend to life imprisonment and, a fine.

Section 354D of IPC- Stalking any man who repeatedly follows, contacts, or monitors a woman’s communication despite her clear disinterest will amount to imprisonment for three years.

Section 506 of IPC- Criminal intimidation.

Section 164 of CrPC- empowers a magistrate to record a person’s testimony or confession regardless of whether or not he has the jurisdiction.  

Courts analysis and judgement:

The Court, while considering the application for bail, has to consider the nature of the offence, severity of the punishment and prima facie involvement of the accused. The Court is now not required to enter into the detailed analysis of the evidence. The bail is not to determine the guilt but it’s only a safeguard to ensure the accused’s right to liberty, pending trial. The court needs to maintain balance between securing the complainant’s interest and safeguarding the accused’s right. In the present case, the allegations levelled is that the Applicant had established forceful physical relations with the prosecutrix on multiple occasions on the false pretext of marriage. It is not denied that the prosecutrix had known the applicant for a long time. The alleged incident, for the first time, is said to have taken place in the month of December, 2021, however no complaint was made at the time. Thereafter, the prosecutrix continued to have sex on several occasions and even then, no complaint was made by her. The prosecutrix got FIR registered on 10.03.2023, that is, almost after fifteen months from the first alleged incident The Hon’ble Supreme Court Apex Court, in Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188, held that Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story…” The prosecutrix has not mentioned date or time of the alleged incidents. The prosecutrix was a major and hence the consent of the prosecutrix whether vitiated by a misconception of fact arising out of a promise to marry can be established only at the time of trial. The averment of the applicant that there are discrepancies between the FIR and Section 164 CrPC statement is also a matter of trial. At this stage, no evidence has been adduced to show that the applicant had made forceful relation with the prosecutrix or has issued any threats of making viral her photographs or has demanded money, mobile phones from the prosecutrix. It is apparent that the prosecutrix was meeting the applicant for quite some time before filing the complaint and wanted to continue their relationship despite knowing that the applicant is a married man. The decision to continue with the relationship points towards her consent. The actions at this stage, does not suggest passive acquiescence under psychological duress but implies towards her consent which is devoid of any kind of misconception. The Hon’ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra: (2019)SCC 608 has laid out as to when a “promise to marry” is a “false promise” or a “breach of promise”. The Supreme Court held that two propositions must be established to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry ie the promise of marriage must have been a false, given in bad faith and with no intention of being adhered. The false promise must be of immediate relevance or bear direct nexus to the woman& 39 decision to engage in the sexual act. At the stage of considering bail, it is neither appropriate nor feasible for the court to draw conclusion, as to whether a promise of marriage made to the prosecutrix was false and in bad faith with no intention to adhere. This issue can be determined after an assessment and evaluation of evidence. It is imperative on the part of Court to exercise utmost diligence in evaluating the prima facie allegations on cases to case basis especially when there are contentious issues of consent and intent. Further, it is not in dispute that the antecedents of the applicant are clean. The applicant, is aged about 34 years and is in custody since 10.03.2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose. 
In view of the above, the applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹25,000/- with two sureties of the like amount, subject to the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case; b. He shall not contact the complainant other witnesses; c. The applicant shall not travel out of the country without prior permission; d. The applicant shall not tamper with evidence nor indulge in any unlawful act or omission which would prejudice the trial. The applicant to appear before the learned Trial Court as and when directed. The applicant shall not visit the locality where the prosecutrixy resides. The applicant to provide the address where he would be residing and shall not change the address without informing the concerned IO/ SHO; h. The applicant to give his mobile number to the concerned IO/SHO and shall keep his mobile phone active and switched on at all times. In the event of any FIR/ DD entry/ complaint lodged against the applicant, State can seek redressal by filing an application for cancellation of bail. The observations made in the present order are for the purpose of deciding the only the present bail application and should have no bearing on the outcome of the Trial and shall not be taken as an expression of opinion on the merits of the case. The bail application is accordingly, allowed.  

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Judgement reviewed by- Parvathy P.V.   

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