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Delhi High court granted bail to an accused under the offence of Kidnapping, as per their authority under section 439 of CrPC.

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Title: Shah Alam vs State Govt. of NCT Delhi

Reserved: 01.06.2023

Pronounced: 07.06.2023

BAIL APPLN. 1033/2023

CORAM: HON’BLE MR. JUSTICE VIKAS MAHAJAN

Introduction

Delhi High court granted bail to an applicant under section 439 of CrPC seeking regular bail in FIR No.394/2020 under Sections 364A/365/342/323/506/102B/34 IPC.

Facts of the case

The mother of the victim on 03.09.2020 made a complaint to the police at 10:02 p.m. that the victim, her daughter, aged about 24 years went to HDFC Bank, Sector-02, Noida, U.P at about 01:30 p.m. with her ATM, passbook and cheque book and she has not returned home and despite searching for her, the victim could not be found. She suspected that some unknown person has kidnapped her daughter by luring her. On the basis of the said complaint, FIR was registered under Section 365 IPC.

The father of the victim also produced few video recordings as well as Whatsapp messages regarding the demand for ransom. On the basis of the statement of the father, Sections 364A/506/342/323/120B/34 IPC were also added in the case.

Search was made for the victim with the help of location and CDR of victim’s mobile number and the victim was recovered on 04.09.2020 from the custody of accused persons namely, Simpal Srivastav and her boyfriend Shah Alam (petitioner herein) from Village Chhalera, Sector-44, Noida (U.P). The said accused persons were arrested on 04.09.2020.

During investigation statement under Section 164 CrPC of the victim was recorded wherein she alleged that she was kidnapped by both the accused persons for ransom and she was also beaten by them. Her mobile phone was also taken by the accused person from which the calls were made and Whatsapp messages were sent demanding ransom. She was also threatened by the accused person and was wrongly confined.

Analysis of the court and decision

The Delhi High Court held that it is Suffice it to state that only the Magistrate’s powers, while handling petitions for the grant of bail, are governed by the punishment specified for the offence for which the bail is requested. An offence under section 364A IPC is punished with death or life in prison. Generally speaking, the Magistrate lacks the authority to issue bail unless the case is covered by the provisos attached to section 437 of the Code if the punishment specified is the life sentence or death penalty and the offence is only triable by the Court of Session (Prahlad Singh Bhati v. State (NCT of Delhi)) There are no such restrictions limiting the High Court’s or the Court of Session’s authority while using the Section 439 CrPC’s authority.

It could also be appropriate to cite the Hon’ble Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40, which outlined the specific conditions under which a person facing trial’s freedom could be restricted as –

“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

Thus, without getting into the specifics of the case at this time, the court believes that, in light of the explanation above, the petitioner has established a case for the granting of bail. As a result, the petition is granted, and upon presenting a personal bond in the amount of Rs. 20,000/- and one surety bond in the same amount, the petitioner is permitted to bail, subject to the satisfaction of the learned Trial Court, CMM, or Duty Magistrate.

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Written By – Shreyanshu Gupta

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Registration of Criminal Case: Violating Article 21 by Absence of Prima Facie Nexus with Alleged Crime – Karnataka High Court’s Stand

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Karnataka High Court

Vipul Prakash Patil V. State Of Karnataka & ors.

CRIMINAL PETITION NO. 104152 OF 2022 

Bench- HON’BLE MR JUSTICE V.SRISHANANDA

Decided On 30-05-2023

Facts of the case-

On the 11th of November, 2022, a complaint was filed by Shivanand S/o Channappa Magadumma with the Chikkodi Police Station. The complaint was registered as Crime No. 242/2022 under Section 9 of the Karnataka Protection of Interest Depositors in Financial Establishment Act, 2004 (referred to as the ‘KPID Act’), and under Sections 406 and 420 of the Indian Penal Code (IPC).

The essence of the complaint alleges that Pankaj Namadev Patil and Santosh Gangaram Ghodake, along with the present petitioner, made an offer to return an invested sum of Rs. 1,00,000/- within ten months in installments of Rs. 15,000/-. Based on this offer, the complainant and others invested substantial amounts of money. 

Initially, the Pinomic Company, a limited liability partnership firm, repaid the amount for a few months but subsequently stopped making the payments. Efforts made by the complainant and others to recover the money proved futile, leading them to approach the Chikkodi police and file the complaint.

After registering the case, the police are currently investigating the matter. Meanwhile, the petitioner challenges the registration of the case and seeks to quash the first information report (FIR). The petitioner contends that they are not involved in the alleged fraud in any way. 

Furthermore, the petitioner questions the registration of the case by the Chikkodi police, arguing that without a preliminary satisfaction report filed by the competent authority with the State Government, the registration of the case for the offense punishable under Section 9 of the KPID Act, or any other IPC offenses, would be unwarranted. The petitioner argues that the registration of the case infringes upon their personal liberty and constitutes an abuse of the legal process. Consequently, the petitioner seeks the quashing of further proceedings.

Relevant Provisions

The KARNATAKA PROTECTION OF INTEREST OF DEPOSITORS IN FINANCIAL ESTABLISHMENTS ACT, 2004

(KPID)

 Related to
Sec. 9

Fraudulent default by Financial Establishment.

 

Judgement

Upon reviewing the case records, the bench determined that the registration of the complaint against the present petitioner lacked prima facie documentary evidence to implicate them in the alleged fraud. Consequently, the registration of the complaint against the petitioner was deemed unnecessary and an abuse of the court’s process.

Although the documents presented by Harshawardhan M Patil, the complainant’s counsel, established that money had been received by Pankaj Namadev Patil and Santosh Gangaram Ghodake, the bench held that the complainant failed to provide any documentary evidence, at least at this stage, to establish a connection between the alleged fraud and the present petitioner.

The bench rejected the complainant’s argument that it was the responsibility of the investigating agency to thoroughly investigate the matter and submit a suitable report. It deemed such an argument on behalf of the complainant as unfounded.

Furthermore, the bench stated that no individual should undergo the ordeal of a criminal investigation unless there is substantive material connecting that person to the alleged crime.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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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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In Shocking Case, Karnataka High Court Upholds Death Sentence for Man Who Brutally Killed Wife and Minor Children with a Chopper

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Karnataka High Court

State Of Karnataka v. Biddadeppa

CRIMINAL APPEAL NO. 100170 OF 2020 C/W CRIMINAL REFERRED CASE NO. 100002 OF 2020 

Bench- THE HON’BLE MR JUSTICE SURAJ GOVINDARAJ AND THE HON’BLE MR JUSTICE G BASAVARAJA 

Decided On 30-05-2023

Facts of the case-

the Appellant’s marriage to the deceased, Pakkeeramma, 12 years prior to the incident. Initially, their relationship was cordial, but the Appellant began suspecting his wife’s fidelity, leading to frequent quarrels and physical assault. Despite advice from elders and neighbors, the Appellant persisted in his suspicions and abusive behavior. He even questioned the paternity of their three children, except for their daughter, Rajeshwari.

On 25.02.2017, in the backdrop of these circumstances, the Appellant allegedly assaulted Pakkeeramma, her sister Gangamma, and the minor children Pavithra, Nagaraj (also known as Rajappa), and Basamma with a chopper. Tragically, four of them died at the scene, while Basamma passed away on the way to the hospital. 

The Appellant emerged from the house and proudly announced that he had attacked his wife and sister-in-law, accusing them of engaging in immoral activities. He also claimed to have harmed the three children whom he believed were not his own.

Consequently, a complaint was filed, and Crime No. 23/2015 was registered at Kampli Police Station for the offense punishable under Section 302 of the Indian Penal Code (IPC). 

Following the completion of the investigation, a charge sheet was filed against the Appellant, and after cognizance of the offense was taken, the Committal Court initiated the trial proceedings. The Appellant was arrested and provided with a copy of the charge sheet. Charges were framed under Section 302 of the IPC, to which the Appellant pleaded not guilty and opted for a trial.

During the trial, the prosecution presented 36 witnesses out of the 66 listed in the charge sheet as PWs.1 to PW.36. Additionally, documentary evidence in the form of exhibits P.1 to P.51 and material objects marked as MOs.1 to MO.22 were submitted to support the prosecution’s case. 

Upon the conclusion of the prosecution’s evidence, the Appellant was confronted with the incriminating evidence, and his statement under Section 313 of the Code of Criminal Procedure (CrPC) was recorded. The Appellant denied the allegations against him and chose not to present any evidence in his defense.

Subsequently, after hearing the arguments from both the prosecution and the defense, the trial court delivered the judgment of conviction and imposed the death penalty. Dissatisfied with this decision, the Appellant has appealed before this court, represented by Sri S L Matti, a panel counsel for the High Court Legal Services Committee, High Court of Karnataka, Dharwad Bench, Dharwad.

Relevant Provisions

Indian Penal Code (IPC) Related to
Sec. 302 Punishment for murder.

 

Judgement

After carefully examining the evidence provided by the witnesses and considering the circumstantial factors, the court concluded that the Appellant was responsible for the homicides. The court emphasized that the deaths were intentional killings, driven by the Appellant’s motive, as he had openly admitted to causing the deaths. Furthermore, eyewitnesses testified to seeing the Appellant immediately after the incident, wearing blood-stained clothes and carrying a bloodied chopper, which he later surrendered to the police. Witnesses also attested to the existence of frequent altercations between the Appellant and his wife, indicating a history of suspicion and conflict. Additionally, the court noted that the Appellant had meticulously planned the entire event by sending his surviving daughter to the house of another individual. Considering these factors, the court concluded that the Appellant’s actions were premeditated, motivated, and deliberate, leading to the murder of two adults and three children.

The court further highlighted the heinous nature of the crime, involving the murder of the Appellant’s wife, sister-in-law, and three young children, all under the age of 10. This brutality demonstrated the depravity of the Appellant’s actions. The court firmly stated that based on the evidence presented, it was convinced beyond a reasonable doubt that the Appellant was responsible for the deaths of all five victims.

In affirming the death penalty, the court sought to identify any mitigating circumstances. It interacted with the accused, obtained reports from various authorities, and carefully reviewed them. However, the court observed that the manner in which the offense was committed, with the Appellant violently attacking two women and three children inside the house, inflicting multiple injuries, and later publicly proclaiming that he had killed “prostitutes” while holding a blood-covered chopper, was deeply shocking. This act of extreme violence disturbed the conscience of the court, despite its experience with numerous murder cases.

Having considered the aggravating circumstances, the court then turned to search for any significant mitigating factors. However, it found none of substance. The Appellant had destroyed his entire family based on unfounded suspicions, leaving no remaining family members to support his potential reformation. From every perspective, despite the court’s efforts to discover mitigating factors, none could be identified.

Therefore, taking into account all the aforementioned factors, the court concluded that the death penalty was warranted in this case.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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