bail Archives - Page 7 of 8

11 Jul

The petition is allowed, and bail granted by Punjab high court accused under Sections 7 and 14 of the Foreigners Act of 1946 and Sections

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TITLE: Mohammad Rahim Ashori v State of Haryana

Decided On-: 04.07.2023

CRM-M-22276-2023

CORAM: Hon’ble Justice Mr. Manoj Bajaj

INTRODUCTION- Through this petition under Section 439 of the Criminal Procedure Code, the petitioners seek regular bail while the case is pending in FIR No. 540 from August 12, 2021, which was filed in accordance with Sections 7 and 14 of the Foreigners Act of 1946 and Sections 12 (1A) of the Passports Act of 1967.

FACTS OF THE CASE-

Short facts of the prosecution case are that on 12.08.2021, SI Suresh Kumar, Ct. Parveen Kumar, Ct. Mahipal, and Ct. Manish were present in the area of Bakhtawar Chowk in Sector 39, Gurugram, for the purpose of crime checking and patrolling duty.He learned secretly that Manish, the proprietor of the Sawaram Cafe, is living with some foreigners, including Mohammad Rahim Ashori, son of Adena Mohammad, of Takhar, Chyap, in Kabul, Afghanistan; Hameedullah Salari, son of Nakib; and Abdul Basir, son of Abdul Jalil of village Aftal, city Badakhshan Tehrakulam, Afghanistan; in the home of Prem Lata, wife A raiding party was organised on the basis of confidential information, and a raid was carried out at the Swaram Cafe to find out more about the aforementioned individuals.Mohammad, a resident of Takhar, Chyap, Kabul, Afghanistan, and accused applicant Hameedullah Salari were discovered together, and

The request was made for their passports and visas. Further investigation revealed that the accused applicant, Hameedullah Salari, was residing there without a passport or visa that was currently valid. It served as the foundation for registering the current case.

COURT ANALYSIS AND DECISION

Expert legal representation for the petitioners has argued that although they have lived in India for a considerable amount of time, the petitioners are actually citizens of Afghanistan and have only been accused of overstaying their welcome because their passports and visas have run out. The petitioners, who have been in custody for about two years and eleven months, can receive a sentence of up to five years for the alleged crimes, according to the learned counsel. He asserts that although charges were filed on May 29, 2023, only two of the prosecution’s nine witnesses have been questioned thus far, and the trial will take a significant amount of time to complete. Prays for bail

On the other hand, learned State attorney with ASI’s assistance in his response, Sanjay Kumar cites an affidavit from Abhimanyu Lohan, HPS, Assistant Commissioner of Police, Sadar Gurugram, who states that the petitioners’ respective visas expired on July 7, 2016, February 5, and October 10, 2018, respectively, and that they were discovered to be residing in India without a valid passport and visa.The petitioners are being tried for overstaying in India after their passport and visa had expired, according to the court, which finds that there is no evidence that they were engaging in any illegal activity or committing a crime.

Petition allowed, bail granted.

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Written by– Steffi Desousa

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18 Jun

THE KERALA HIGH COURT SAYS AGAIN THAT MAGISTRATE CANNOT IMPOSE CONDITION TO DEPOSIT CASH SECURITY WHILE GRANTING BAIL

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Bench – THE HON’BLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

Case Title – RAJESH V STATE OF KERALA

Case No – CRL.MC NO. 3385 OF 2023

Date – 30/05/2023

FACTS –

The petitioners are accused Nos. 1 and 2 in Crime No. 1103/2022 of the Vadakkancherry Police Station.
They are accused of offences punishable under Sections 406 and 420 r/w Section 34 of the IPC.
The final report was not filed within the statutory period, so the petitioners applied for statutory bail.
The learned magistrate granted statutory bail but imposed a condition that the accused must deposit a sum of Rs. 50,000/- as cash security for appearance.
The learned magistrate justified this condition by relying on the judgments in Sumit Mehta v. State [2013 (2) KLD 677] and Lekha v. State [2019 (3) KLJ 825].
The learned counsel for the petitioners argued that the judgments relied on by the magistrate relate to anticipatory bail and are not applicable to the present case.
The counsel cited the Supreme Court’s judgement in Saravanan v. State [2020 (9) SCC 101], which states that no cash security can be imposed while granting default bail.

JUDGEMENT –

The court considered the submissions and reviewed the records.
The court referred to the Supreme Court’s judgement in Saravanan v. State, which clarifies that no condition of depositing the alleged amount involved can be imposed while granting default bail under Section 167(2) of the Cr.P.C.
The court held that the judgments relied on by the magistrate were not applicable to the present case.
The court set aside Condition No. 2 in Annexure-1 order (which required the cash security deposit) and allowed the petition.
All other conditions imposed by the magistrate remained unchanged.

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WRITTEN BY – ANVITHA RAO

13 Jun

The Application of ‘Bail is Rule’ Norm: Karnataka HC Denies Bail to Riot Accused in UAPA Offences

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Karnataka High Court

Imran Ahmed V. National investigation agency

Bench- THE HON’BLE MR JUSTICE KRISHNA S DIXIT AND THE HON’BLE MR JUSTICE PRADEEP SINGH YERUR

CRL.A.NO.124/2023

Decided On 29-05-2023

Facts of the case-

On the night of 11.08.2020, violent riots erupted in the K.G.Halli area of Bangalore City. The rioters attacked the local police station, setting it on fire and causing extensive damage to private and public property. Government and private vehicles were looted, and the general public was terrorised.

Despite being attacked with various weapons such as stones, iron rods, wooden sticks, and improvised petrol bombs, the police officials held their ground. Eventually, the police had to resort to a lathi charge and firing to disperse the organized offenders. This incident became widely known as the “K.G.Halli Riots.”

Numerous criminal cases were registered against a large number of miscreants involved in the riots. These cases were filed under various sections of the Indian Penal Code, including sections 143 (unlawful assembly), 147 (rioting), 148 (rioting with a deadly weapon), 353 (assault on public servant), 332 (voluntarily causing hurt to deter public servant from his duty), 333 (voluntarily causing grievous hurt to deter public servant from his duty), 436 (mischief by fire or explosive substance with intent to destroy a house), 427 (mischief causing damage to the amount of fifty rupees), and 149 (unlawful assembly with a common object). Additionally, the cases were also registered under Section 4 of the Prevention of Damage to Public Property Act, 1984.

Three prominent cases, namely Crime Nos. 227, 228, and 229 of 2020, were registered. On 17.8.2020, additional charging provisions under sections 15, 16, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967, were added to Crime No. 229 of 2020. A total of 181 individuals were accused, out of which 141, including a juvenile, were arrested. Twelve individuals were reported as absconding, and one person died during police firing.

Considering the severity of the violence, the brutal manner in which the offenses were committed, and the extensive damage caused to public and private property, the Central Government, through the Ministry of Home Affairs, issued an order on 21.9.2020, under the National Investigating Agency Act, 2008. This order directed the National Investigating Agency (NIA) to take over the investigation of Crime No. 229 of 2020. The NIA re-registered the case as R.C.No. 35/2020/NIA/DLI on 21.9.2020.

The NIA conducted the investigation and subsequently filed a charge sheet. The charge sheet implicated the appellant, identified as accused No. 22, as part of a terrorist gang involved in the incident. The charge sheet provided detailed information on the incident, and a summary of it was included in the NIA’s Statement of Objections filed to oppose the bail petitions.

The appellant had previously filed a bail petition in Spl.C.C.No.141/2021, which was rejected by the Special Judge of the Court below on 19.11.2022. This decision was upheld by a Coordinate Bench of the Court in an earlier appeal, Crl.A.No.585/2021, along with Crl.A.Nos.576/2021, 582/2021, and 745/2021, on 15.9.2021. Another bail petition was presented in Spl.C.C.No.152/2021, which was also denied. In this current appeal, the appellant is challenging the rejection of the bail petition.

Judgement

The Division bench comprising Justice Krishna S. Dixit and Justice Pradeep Singh Yerur declined to apply the well-established principle of “bail is the rule and jail is an exception” in this particular case. The court emphasized that this principle cannot be applied in cases involving offenses under special statutes of significant importance, such as the Unlawful Activities (Prevention) Act, 1967.

The court provided three key reasons for its decision. Firstly, it acknowledged that Parliament, with its accumulated wisdom, has enacted provisions in the aforementioned Act that severely restrict the grant of bail. Secondly, the court noted that the Act includes a “negative burden” clause, which places the burden of proof on the accused, contrary to the usual rule where the burden lies on the prosecution. Lastly, the court highlighted that the dictum of “bail is the rule and jail is an exception” originated decades ago in cases governed by the Indian Penal Code of 1860 and may not be directly applicable in the current context.

The court rejected the accused’s arguments invoking basic human rights and the presumption of innocence, pointing out that the negative burden clause under the 1967 Act challenges the immediate application of the doctrine of innocence. The bench expressed reservations about readily invoking the doctrine of innocence in a case of this nature, considering the severe and undesirable consequences that could arise from releasing an undertrial involved in a heinous incident of such magnitude.

The court supported the Special Public Prosecutor’s contention that in serious cases where the National Investigation Agency (NIA) has conducted a thorough investigation and filed a charge sheet, bail should not be granted. The NIA presented substantial evidence, including video and photographic evidence of the incident, mobile phone call records, mobile tower records, weapons used, and statements of eyewitnesses, including injured police officials, establishing the active participation of the appellant-accused in the horrifying incident.

Furthermore, the court agreed with the prosecution’s submission that in bail matters, the court must consider not only the rights and liberties of the accused but also the threat to the safety of civil society if such offenders are released. Citing a Supreme Court judgment, the bench acknowledged the importance of human rights but ultimately concluded that keeping the accused in custody would serve the cause of justice better.

Recognizing that several accused individuals have already been denied bail and are currently in judicial custody, the court emphasized the need for an expedited trial conducted on a day-to-day basis. The court stressed the fundamental right of these individuals to speedy justice and acknowledged the burden on the trial judge of the Special Court.

Finally, the court dismissed the Criminal Appeal, stating that it lacks merit. It clarified that the observations made in the decision pertain solely to the appeal’s disposal and should not impact the ongoing trial or the orders to be made by the lower court in that regard.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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7 Jun

The Discretionary Authority of Granting Bail on Medical Considerations Under the PMLA Must Be carried out With Caution: The Delhi High Court

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Title: SANJAY JAIN (IN JC) v. ENFORCEMENT DIRECTORATE

BAIL APPLN. 3807/2022

Judgment on – 05.06.2023

CORAM: HON’BLE MR. JUSTICE VIKAS MAHAJAN

Introduction

“The independence of a person accused or found guilty of an offense can be curtailed according to the procedure prescribed by law; nevertheless, right to health is also recognized as an important facet of Article 21 of the constitution; simply because a person is under trial or, for that matter, a convict, placed in jail, this facet of right to life cannot be curtailed; it remains an obligation of the state to provide adequate and successful healthcare to every person lodged in jail.”

The Delhi High Court decided on Monday that the right to grant bail on medical excuses under the PMLA is optional and must be employed prudently after establishing satisfaction that requisite conditions exist leading to the use of such a decision.

Facts of the Case

The court was considering a bail petition filed by Sanjay Jain, who was charged with money laundering. The standard bail plea was handled by his wife. During the usual bail hearing, Jain’s wife filed a declaration on May 22 asking for temporary relief on medicinal and humanitarian fronts for three months, claiming that his health was critical. According to the wife’s statement, the 57-year-old had several pre-existing conditions, including hypertension, depression and anxiety, diabetes, and damaged mitral valve prolapse. It was also reported that his health had deteriorated in jail and that he was unable to receive medical care.

While declining to grant Jain temporary release, the court did order the Director of AIIMS to promptly form a Medical Board of Doctors to evaluate Jain’s medical condition.

According to section 45 of the PMLA, not every condition enables a defendant to grant bail for medical reasons, and the term used in the provision’s first proviso is that a person can be freed on release if he is “sick” or “infirm.”

Courts Analysis and Decision

Merely, the petitioner’s health must take precedence, and it is his fundamental right to adequate and effective treatment while incarcerated. However, if specialized or sustained treatment and care is required due to the petitioner’s medical condition and is not possible while incarcerated, the petitioner will be eligible for the benefit of interim bail under the first proviso to Section 45(1) of the PMLA, the court said. Justice Mahajan stated that appointments for Jain’s diagnostic procedures were booked roughly five months to one year later, indicating that government Hospitals are overcrowded and unable to handle the medical concerns he encountered while in jail.

Nevertheless, there is no medical consensus on record indicating how critical is the need for the applicant to undergo CT angioplasty for his heart disease and MRI LS spine and whether, as a result of the postponement of the said testing and subsequent delay in treatment, the petitioner’s life could be jeopardized,” it said. “In lieu of the conclusions of the experts, it is hard for this Court to conclude that there is a case for grant of interim bail on medical grounds,” the court added. “The Court can’t assume the role of a doctor and make its own assessment of the petitioner’s health on the medical grounds.”

The judge ordered the Jail Superintendent to turn over all of Jain’s medical records to the Medical Board of Doctors and allowed the wife to turn over pertinent medical data to the governing body with a duplicate to the Special Counsel for ED. The Jail Superintendent received further instructions to make sure that Jain appears before the Medical Board on June 7 at the date and place specified by the Board. “Upon review of medical documentation and testing of the applicant, the Medical Board will submit its report to this Court before or on 10.06.2023, the court ordered.”

Judgment

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Written by- Anushka Satwani

3 Jun

The purpose of bail is not punitive or preventive; it is primarily intended to ensure the presence of the accused during the trial: Delhi High Court on 2nd June 2023

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Facts of the case

Malvinder Mohan Singh, the former promoter of Religare Enterprises Limited, has been granted bail by the Delhi High Court. FIR No. 50/2019 BAIL APPLN. 2810/2021, The bail pertains to his alleged involvement in the Religare Finvvest scam, which amounts to Rs. 2,397 crores.

Singh, along with Shivinder Mohan Singh and Sunil Godhwani, allegedly conspired to make Religare Finvest Limited (RFL) provide unsecured loans amounting to Rs. 2,397 crores to shell companies. These loans were given without proper documentation and on a non-arms’ length basis. Subsequently, the shell companies intentionally defaulted on the repayments.

The Economic Offence Wing of the Delhi Police registered FIR 2019 based on a complaint by Manpreet Singh Suri, the authorized representative of Religare Finvest Limited. The FIR was filed under sections 409(criminal breach of trust by public servant) 420(Cheating), and 120B( criminal conspiracy) of the Indian Penal Code.

Courts Analysis and Decision

The Delhi high court on 2^nd June 2023 held after referring to various cases and precedents said, the severity of an offense can be considered when considering whether to grant bail, but it should not be the sole criterion for denying bail. The court further said, the purpose of bail is not punitive or preventive; it is primarily intended to ensure the presence of the accused during the trial. The fundamental principle highlighted in the referred judicial pronouncements is that a person who has community ties and meets the general conditions for bail should not be subjected to prolonged judicial imprisonment as a form of punishment prior to the conclusion of the trial.

In the current case, the court believes that granting bail to the applicant, with appropriate conditions to protect the prosecution’s interests, would not cause any significant prejudice to the prosecution’s case before the trial court. This is especially true when considering that other co-accused individuals have already been granted bail.

Judgement Reviewed by A single judge bench of Justice Amit Sharma

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Judgement:

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Written by – Anushka Satwani

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