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Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

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Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

Case title: AJWAR VS WASEEM AND ANOTHER

Case no.:  Criminal Appeal Nos. of 2024 arising out of Petition for Special Leave to Appeal (Criminal) Nos. 513, 2437, 13404, and 16310 of 2023

Dated on: 17TH May 2024

Quorum:  Hon’ble Ms. Justice [HIMA KOHLI And Hon’ble Mr. Justice. AHSANUDDIN AMANULLAH

FACTS OF THE CASE

Bail was granted to accused Waseem on grounds of parity with his father, Niyaz Ahmad, which was later set aside by the Court. An appeal by the appellant-complainant led to the restoration of the bail application of accused Waseem to be decided afresh by the High Court. The case involves multiple accused individuals (Nazim, Aslam, Abubakar) seeking bail on similar grounds under Section 439 Code of Criminal Procedure, 1973 for a case involving various offences. Different Benches of the High Court allowed the bail applications of Waseem, Nazim, Aslam, and Abubakar on separate dates. The appellant-complainant approached the Court aggrieved by the bail orders granted by the High Court on these individuals. The case pertains to an incident on 19 May, 2020, with ongoing investigation and court proceedings involving delays and attempts to transfer the trial. The conduct of the respondents in delaying the trial was criticized by the Additional Sessions Judge in Meerut. Co-accused Niyaz Ahmad filed a transfer petition for a change in the trial judge due to alleged bias. The post mortem reports of the deceased sons of the appellant showed fatal firearm injuries. Eyewitness testimonies implicated Waseem, Nazim, Aslam, and Abubakar in the incident. Multiple arrests were made, and illegal firearms were recovered from Aslam. Trial proceedings involved examination of witnesses and the statement of the informant. Previous court orders for bail were challenged and overturned based on findings. The case is pending trial before the Additional Sessions Judge in Meerut. Allegations of enmity and a targeted attack by the accused are central to the case.

 

CONTENTIONS OF THE APPELLANT

Appearing for the appellant-complainant, Mr. Shreyas U. Lalit and Mr. Ansar Ahmad Chaudhary, learned counsel submitted that this is a case of double murder of two young sons of the appellant-complainant at the hands of the accused persons who harbored previous enmity against him and his family members. Waseem (A-7) was arrested on 27th May, 2020. The other accused persons were arrested on different dates. After their arrest, the police conducted a search of the respondents and recovered five illegal country-made pistols, seven live cartridges and five used cartridges from the possession of Aslam (A-2). A specific role has been attributed to each of the four respondents herein that resulted in the death of the appellant’s two sons and serious injuries to his nephew. All the four respondents herein were named in the FIR, besides the other co-accused. During the course of investigation, the statements of eleven independent witnesses were recorded under Section 161 Cr.P.C. wherein an active role has been attributed to all the four respondents. Later on, the appellant-complainant entered the witness box and appeared as PW-1. He has reiterated the role played by the respondents herein in committing the offence. Two other independent eye witnesses, namely, Abdullah (PW-2), Asjad (PW-3) and Fahim Uddin (PW-4) have supported the testimony of the appellant (PW-1). Learned counsel for the appellant-complainant further states that the High Court has completely overlooked the fact that the respondents-accused parties were the aggressors who had forcibly entered the house of the appellant-complainant and indiscriminately fired at him, his sons and other persons who had gathered at his house to break the fast. They have criminal antecedents and several cases are registered against them. Even before completion of a period of six months granted by the High Court, by an earlier order dated 7th April, 2022 passed on an application moved by the appellant complainant under Section 482 Cr.P.C for issuing directions to the trial Court to complete the trial in a definite period, the High Court has proceeded to grant bail in favour of Waseem on the grounds of parity with his father; similar orders have been passed in favour of Nazim, Aslam and Abubakar. It has also been pointed out that from the side of the accused persons, a cross case was registered on the basis of an application moved under Section 156(3) of the Cr.P.C. The matter was investigated and the police filed its final report. He submitted that this conduct of the respondents was adversely commented upon by the Additional Sessions Judge, Court No.15, Meerut in his order dated 23rd August, 2022, wherein it was observed that five dates were taken by the accused but they failed to cross-examine the appellant – complainant and the accused were cautioned that if the cross-examination would not be completed, then their right to cross-examine him would be closed. To delay the trial, the co-accused, Niyaz Ahmad filed a transfer petition before the Sessions Court, requesting that the trial be conducted by some other Additional Sessions Judge, on the plea of bias.

CONTENTIONS OF THE RESPONDENTS

As for the subsequent conduct of the respondents, it was pointed out that after being released on bail, one of the prime eyewitnesses, Abdullah (PW-2) was sought to be intimidated by them and their supporters. Abdullah (PW-2) filed a complaint on 21st March, 2023 which was registered as an FIR, wherein it was alleged that five accused persons i.e. three respondents herein (Waseem, Nazim and Aslam) and the co-accused, Hamid and Ayyub had threatened him in open Court. After he left the Court premises, he was thrashed by them. On an application moved by PW-2, he was extended protection by the Court. The present petitions have been strongly opposed by Mr. Siddharth Luthra, Senior Advocate appearing for the accused-respondents Waseem, Nazim and Aslam and Mr. Sitab Ali Chaudhary, learned counsel for the accused-respondent Abubakar. Learned counsel submitted that any delay in completing the trial cannot be attributed to the respondents and the adjournments referred to by the learned trial judge in the order dated 23rd August 2022 were not on account of the respondents. In fact, the prosecution witness was available only on two dates for his cross-examination and only one date was taken by the accused, Niyaz Ahmed on medical grounds. He submitted that accused Waseem did not misuse the liberty granted to him by the High Court vide order dated 22nd August, 2022 and when his bail order was set aside by this Court on 14th October, 2022 and remanded back to the High Court for passing a reasoned order, he had surrendered on time. Learned counsel submitted that the appellant-complainant himself is a well-known criminal of the area, having several cases registered against him as also his two sons. The criminal history of the appellant-complaint and his two deceased sons, Abdul Majid and Abdul Khaliq have been detailed in paras 19 to 21 of the counter affidavit. As per the respondents, the appellant-complainant is involved in 10 criminal cases and his two deceased sons, Abdul Majid was involved in 21 criminal cases and Abdul Khaliq was involved in 2 cases. Next, contending that bail once granted cannot be cancelled until there are supervening circumstances and in the present case there are no such circumstances that require setting aside of the impugned orders, learned counsel for the respondents supported the impugned orders and requested that the present appeals be dismissed. It was additionally submitted that even when the accused Waseem was released on bail, he had abided by the conditions of bail imposed on him and did not misuse the liberty in any manner. On merits, learned counsel for the respondents submitted that there was previous enmity between the parties; those three persons had been falsely introduced in the FIR against whom no case was made out and after investigation, their names were dropped from the chargesheet; that the prime eye-witnesses (PW-1, 2, 3 and 4) are related to the deceased being their father/uncle/cousin, etc. Several loopholes in the prosecution version were sought to be highlighted by the learned counsel for the respondents relating to conducting the inquest of the deceased Abdul Majid, the difference in the time between reporting the crime that took place on 19th May, 2020, at 2030 hours as against the time when the investigation had allegedly started (1818 hours); the alleged manipulation in the Medico Legal Reports of the injured, Asjad; the role of Asjad (nephew of the appellant complainant) who had allegedly called twice on the mobile phone of Abubakar (brother of the accused, Waseem) which fact could be verified from the CDR details of the mobile phone and showed that the injured Asjad was the aggressor who had threatened to kill Waseem’s brother. It was also contended that the appellant-complainant and 15 other persons with him were present at the mosque and not at his residence, as recorded in the chargesheet and they were the ones who had badly assaulted Waseem’s brother, entered his residence and thrashed his family members. Learned counsel for the respondents submitted that the real reason behind the dispute between the appellant-complainant and his family members and the accused and his family members related to political rivalry as the appellant-complainant had lost the election for the post of Village Pradhan and then proceeded to falsely implicate the accused persons. Learned counsel argued that where there are two bullet injuries, one each to the two deceased by three assailants, there is a possibility of over-implication of the accused persons. Finally, an assurance has sought to be extended to this Court that the respondents will not abscond as they are permanent residents of the village and they shall continue cooperating for timely completion of the trial.

ISSUES

  1. whether Single Judge disposed of the bail application in an unsatisfactory manner?
  2. whether bail should be granted in a serious criminal offence matter?
  3. whether The High Court’s jurisdiction under Section 439(1) of the Cr.P.C. is in question for granting regular bail Examining the justification of the High Court in granting bail to the respondents?

LEGAL PROVISIONS

Section 439 of the Code of Criminal Procedure, 1973: This section deals with the power of the High Court and Sessions Court to grant bail. It outlines the factors to be considered when granting bail, such as the nature and gravity of the offense, likelihood of the accused fleeing from justice, etc.

Section 154 of the Code of Criminal Procedure, 1973: The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. The provision of Section 154 is mandatory.

Section 173 of the Code of Criminal Procedure, 1973: Every investigation under this Chapter shall be completed without unnecessary delay. [(1-A) The investigation in relation to [an offence under sections 376, 376A, 376AB, 376B, 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code shall be completed within two months.

COURT’S ANALYSIS AND JUDGEMENT

The Court must consider the seriousness and gravity of the crime in question. The High Court overlooked the period of custody of the accused for a grave offence. The High Court granted bail based on insufficient reasoning and questionable factors. The accused involved in previous criminal activities were granted bail in this case. The High Court ignored key eyewitness testimonies and the seriousness of the offence. The appellate Court found the bail orders to be unjustified and lacking reasonable grounds. The accused had spent less than three years in custody for a double murder charge. The police’s investigation was criticized for being one-sided. The delay tactics by the accused in the trial process were observed. The High Court granted bail without proper consideration of the gravity of the offence and relevant material. The principles guiding the discretion of granting bail were disregarded by the High Court. The power to grant bail under Section 439 Cr. P.C is of wide amplitude. The discretion of the High Court or a Sessions Court in granting bail is considerable but not unfettered. Considerations for cancelling bail include supervening circumstances or post-grant conduct of the accused. An order granting bail must reflect due application of judicial mind and well-established legal principles. Appellate Courts may set aside bail orders based on illegality, perversity, or irrelevant material. Considerations for setting aside bail orders include supervening circumstances, accused’s conduct on bail, attempts to delay trial, threats to witnesses, and tampering with evidence. The list of considerations provided is illustrative and not exhaustive. At the stage of granting bail, only a prima facie case needs to be examined, detailed reasons causing prejudice to the accused should be avoided in the bail order. The various factors examined collectively indicate that the respondents do not deserve the concession of bail. The observations made are limited to examining the infirmities in the impugned orders and do not indicate an opinion on the merits of the matter pending trial. All four impugned orders are quashed and set aside. Original Names are to surrender within two weeks from the date of this order. Respondents can apply for bail at a later stage if new circumstances emerge.

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Judgement Reviewed by – HARIRAGHAVA JP

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An Explicate Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023

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An Explicate Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023

ABSTRACT
This study undertakes a comparative analysis of the Criminal Procedure Code (CrPC) in India and the Bhartiya Nagarik Suraksha (BNS), a hypothetical legal framework proposed for consideration. The CrPC is a comprehensive statute governing criminal procedure in India, while the BNS is a conceptual framework that draws inspiration from traditional Indian legal principles. The CrPC, enacted in 1973, provides the procedural framework for the investigation and trial of criminal offenses in India. It outlines the powers and responsibilities of various authorities involved in the criminal justice system, such as police officers, magistrates, and courts. The CrPC also lays down the procedures for the arrest, bail, and trial of accused persons, as well as the rules for the conduct of investigations and trials. On the other hand, the BNS is a proposed legal framework that seeks to incorporate traditional Indian legal principles into the modern criminal justice system. It emphasizes principles such as restorative justice, community involvement, and reconciliation. The BNS envisions a system where the focus is not only on punishing offenders but also on rehabilitating them and restoring harmony in the community.
In comparing the two frameworks, several major differences emerge. The CrPC is a detailed and elaborate statute that provides specific procedures and guidelines for every stage of the criminal justice process. In contrast, the BNS is more principles-based and allows for greater flexibility in its application. The BNS also places a greater emphasis on alternative dispute resolution mechanisms, such as mediation and arbitration, whereas the CrPC primarily relies on formal adjudication by courts. The both frameworks share the common goal of ensuring justice and protecting the rights of individuals. While the CrPC is firmly rooted in the principles of British common law, the BNS seeks to draw on India’s rich legal heritage to create a more holistic and culturally relevant approach to criminal justice.

KEYWORDS –
Legal procedures, Investigation, Trial, Arrest, Bail, Magistrates, Courts, Offenses, Evidence, Traditional Indian legal Principles, Restorative justice, Community involvement, Reconciliation, Alternative dispute resolution, Mediation, Rehabilitation, Harmony, Cultural relevance, Legal heritage, Criminal justice system, social cohesion, Customary law, Conflict resolution, Legal pluralism, Judicial discretion, Summons cases, Warrant cases, Session court, Summary Trail.

 

 

INTRODUCTION
The CrPC is divided into two main parts: the substantive part, which contains provisions related to the investigation and trial of criminal cases, and the procedural part, which contains the rules and regulations governing the conduct of criminal proceedings. One of the key features of the CrPC is its emphasis on the protection of the rights of the accused. The code lays down specific procedures to be followed by the police during the investigation, such as the recording of statements, the collection of evidence, and the arrest of suspects. The CrPC also provides for the rights of the accused, such as the right to legal representation, the right to bail, and the right to a fair trial. Another important aspect of the CrPC is its role in ensuring the efficiency and effectiveness of the criminal justice system. The code contains provisions that regulate the conduct of courts, such as the time limits for the completion of various stages of the trial and the procedures for the disposal of cases. These provisions are aimed at expediting the delivery of justice and reducing delays in the criminal justice system. Overall, the Criminal Procedure Code plays a crucial role in ensuring the proper administration of criminal justice in India. It provides a framework within which the police and courts can operate, ensuring that the rights of the accused are protected and that justice is delivered in a fair and timely manner. On 11th August, 2023 marked a historic day as several speculations regarding the introduction of new criminal major laws were finally laid to rest. On this date, the Hon’ble Home Minister of India, Shri Amit Shah introduced the three bills to replace the existing IPC, CrPC and IEA. These bills are called The Bharatiya Nyaya Sanhita, 2023; The Bharatiya Nagarik Suraksha Sanhita, 2023; and The Bharatiya Sakshya Bill, 2023 respectively. All the three laws have been referred to relevant Parliamentary Standing Committee. Although, the bills are yet to be enacted and subsequently notified, they have become a major point of debate and discussion already. While some are applauding this move to decolonise the existing criminal infrastructure, many others have questioned the move as being abrupt and without proper public consultation. The majority of the current discourse is focusing upon the IPC or the upcoming Bhartiya Nyaya Sanhita.

Highlights of the Bill

1. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace the Criminal Procedure Code, 1973 (CrPC). The CrPC provides for the procedure for arrest, prosecution, and bail.
2. BNSS mandates forensic investigation for offences punishable with seven years of imprisonment or more. Forensic experts will visit crime scenes to collect forensic evidence and record the process.
3. All trials, inquiries, and proceedings may be held in electronic mode. Production of electronic communication devices, likely to contain digital evidence, will be allowed for investigation, inquiry, or trial.
4. If a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him, the trial can be conducted and judgement pronounced in his absence.

 

5. Along with specimen signatures or handwriting, finger impressions and voice samples may be 5. collected for investigation or proceedings. Samples may be taken from a person who has not been arrested.

Major Issues and Analysis

1. The BNSS allows up to 15 days of police custody, which can be authorised in parts during the initial 40 or 60 days of the 60- or 90-days period of judicial custody. This may lead to denial of bail for the entire period if the police have not exhausted the 15 days custody.

2. The powers to attach property from proceeds of crime does not have safeguards provided in the Prevention of Money Laundering Act.

3. The CrPC provides for bail for an accused who has been detained for half the maximum imprisonment for the offence. The BNSS denies this facility for anyone facing multiple charges. As many cases involve charges under multiple sections, this may limit such bail.

4. The use of handcuffs is permitted in a range of cases including economic offences, contradicting Supreme Court directions.

5. The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors. This violates normal rules of evidence when the author of the document can be cross examined.

6. Recommendations of high-level committees on changes to the CrPC such as reforms in sentencing guidelines and codifying rights of the accused have not been incorporated in the BNSS.

The Code of Criminal Procedure, 1973 (CrPC) is a procedural law established for the administration of the Indian Penal Code, 1860 (IPC). It governs the procedure for investigation, arrest, prosecution, and bail for offences. The CrPC was first passed in 1861 to address the problem of multiplicity of legal systems in India. Since then, it has been revised on multiple occasions. In 1973, the erstwhile act was repealed and

replaced by the existing CrPC, and changes like anticipatory bail were introduced. It was amended in 2005 to add changes such as provisions for plea bargaining and rights of arrested persons. over the years, the Supreme Court has interpreted the CrPC in varied ways and revised its application. These include: (i) mandating the registration of an FIR if the complaint relates to a cognisable offence, (ii) making arrests an exception when the punishment is less than seven years of imprisonment, (iii) ensuring bail for bailable offence is an absolute and in-defeasible right and no discretion is exercised in

such matters. The Court has also ruled on procedural aspects such as establishing guidelines for custodial interrogations and emphasising the importance of speedy trials. However, the criminal justice system continues to face challenges like case backlogs, trial delays, and concerns about treatment of underprivileged groups. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on August 11, 2023 to replace the CrPC. It amends provisions on bail, expands the scope of property seizure, and alters powers of police and Magistrates. The Bill has been examined by the Standing Committee on Home Affairs.

Positive Changes
Contrary to popular discourse, several positive changes have been made under the newly enacted BNSS. The author would classify them under five broad categories even though there might be overlaps where one provision can be slotted into multiple categories.
A. Removal of Archaic and Insensitive Terms
Unlike several justifiable critiques against the banality of changing names, sometimes the exercise can be a marvelous step against stigmatisation. One of the most praiseworthy steps in the BNSS is the replacement of archaic and insensitive terminology such as ‘lunatic person’ or ‘person of unsound mind’. All such references have been replaced with more sensitive terms such as ‘having intellectual disability’ or ‘person with mental illness’. This can be seen in Section 219(1)(a) of the BNSS corresponding to Section 198 of CrPC. Similar change has been incorporated in Section 357 of BNSS corresponding to Section 318 of CrPC. Most noticeably, Chapter XXV or 25 of CrPC [Provisions as to Accused Persons Of Unsound Mind] has now been introduced as Chapter XXVII or 27 of BNSS [Provisions as to Accused Persons With Mental Illness] where all the concerned sections have been amended suitably with references to Mental Healthcare Act 2017. The term ‘lunatic asylum’ has been suitably changed to ‘mental health establishment’.
B. Clarity in some procedures
The new code also significantly clarifies and amends the stance to be used viz-a-viz Proclaimed offenders. Earlier as per Section 82(4) of CrPC as added to the code by 2005 Amendment, someone can be declared as a ‘Proclaimed offender’ for only nineteen specified offences under IPC namely, “302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460”. This led to situations wherein someone repeatedly evading legal processes of summons/warrant for any other offence under general penal code of IPC or any other special law could not be declared as a Proclaimed offender. Now, by removing this seemingly arbitrary list of sections, anyone accused of an offence with more than 10 years of imprisonment or other special offences could be declared a proclaimed offender. Similarly, a new section 356 has been added to the BNSS which provides a detailed procedure for conducting a trial/inquiry in the absence of a person declared as ‘Proclaimed offender’. While one may doubt the need for such harsh measures as declaration of a person as a proclaimed offender, but for the time being the code has at least clarified the procedural application of the same.

c. Progressive Safeguards and/or changes

BNSS is also keeping with the times ahead by incorporating changes with respect to use of forensic science in investigation of crimes. By amending Section 311A of CrPC or Section 349 of BNSS, now even finger prints and voice samples may also be taken as compared to just specimen signatures or handwriting samples in the earlier iteration of the code. Earlier only the central government could notify scientific experts for the purposes of Section 293(4)(g) of CrPC, but now state governments may also do the same as per the revised Section 329(4)(g) of BNSS. The new law also seeks to increase the ambit for provision of legal aid. Section 304(1) of CrPC earlier provided for legal aid “in a trial before the Court of Session”. However, the revised section 341(1) of BNSS has replaced this with “in a trial or appeal before a Court” which significantly increases the ambit of the same. In the author’s opinion, the drafters missed an opportunity to bring in comprehensive reforms to legal aid system in India. They could have incorporated some of the suggestions mentioned in reports by NALSA, Law Commission of India, and other reports, most notably the contribution by two of the most preeminent retired judges of Indian Supreme Court such as Hon’ble Mr. Justice P.N. Bhagwati and Hon’ble Mr. Justice V.R. Krishna Iyer.

D. Electronic/Digital alternatives for existing processes
In line of our commitment towards a Digital India, a landmark new Section 532 has been added to the BNSS. As per the same, all trials, inquires and proceedings, recording of evidence therein, examinations of parties, issuance, service and execution of summons and warrants, and several other processes can now be done electronically.
Another change which can be observed is that Section 182 of CrPC which discussed the procedure regarding “Offences committed by letters etc.”, has now been suitably modified to include ‘electronic communication’ as well as per Section 202 of BNSS. While considering the custody and disposal of perishable property during trial, electronic records now need to be maintained of the same as per the revised Section 499 of BNSS or Section 451 of CrPC.

Negative Changes

While most of the changes to BNSS might be categorised as benevolent and/or timely, some changes to the criminal procedure have also raised significant concerns. As abovementioned, while there has been a push on the greater use of forensic science in criminal trials, some provisions could be termed alarming. For instance, as per a proviso added to Section 349 of BNSS corresponding to Section 311A, now a magistrate may ask any person without a history of arrest to give specimens/samples such as fingerprint, voice sample or handwriting samples. Earlier, this could not have been done unless the person was not arrested in connection with an investigation. While one might make the claim that this would reduce unnecessary arrests merely for taking samples, but this exercise of sample taking should ideally be exercised with great caution and only when it is of utmost importance to a trial. Another concerning provision is the addition of a new subsection (3) to Section 43 – ‘Arrest how made’ of BNSS. This new provision now formally brings back the usage of handcuffs. On one hand, it may be argued that usage of

handcuffs become vital in serious cases and not having the same may seriously impede investigation. However, by diluting the scope of this section as can be seen in BNSS, this provision might run contrary to the landmark 1979 Supreme Court verdict of Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579 which heavily critiqued the indiscriminate use of handcuffs. BNSS also adds a new Section 107 which gives vast powers of seizure and attachment of property. This section gives police the power to have the property of any accused seized and forfeited if it is suspected to be involved in criminal activity. The application and judicial interpretation of this section would require a close scrutiny going ahead.As discussed above, to expedite investigations the role of Central government has been explicitly recognised at several instances in the new law. However, while discussing the State government’s power to remit or commute a sentence, earlier as per Section 435 of CrPC the states were only required to ‘consult’ the Central government. Now, as per Section 478 of BNSS the word ‘consultation’ has been substituted by ‘concurrence’. This may lead to situations wherein various state governments might allege that their exclusive power has been made subservient to the will of the Centre. In Section 149(1) of BNSS corresponding to Section 130(1) of CrPC, the level of executive satisfaction to ‘use armed forces to disperse assembly’ has been lowered. Earlier, “Executive Magistrate of the highest rank who is present” could only request the deployment of armed forces. Now, “District Magistrate or any other Executive Magistrate authorised by him, who is present” can also do the same. A new section is added in Chapter XII of BNSS corresponding to Chapter XI of CrPC relating to ‘Preventive Action of Police’. As per this new Section 172, police have been granted wide powers to enforce their will. Anyone deemed to be “resisting, refusing, ignoring or disregarding to conform to any direction” can be detained or removed by the police. Such a detained person may be taken before a judicial magistrate. Ideally, the section should also clarify that such detainee must be brought before a magistrate within 24 hours if the arrest duration is longer than a day and other procedural safeguards must be followed.

CONCLUSION
The CrPC provides for the procedure for investigation and trial for offences. It also contains provisions for security to maintain peace, and maintenance of public order and tranquillity. It contains provisions that allow a District Magistrate to issue orders needed to preserve public order. The BNSS has retained these provisions (in separate chapters). Since trial procedure and maintenance of public order are

distinct functions, the question is whether they should be included under the same law or if they should be dealt with separately. As per the Seventh Schedule of the Constitution, public order is a state subject. However, matters under the CrPC (prior to the commencement of the Constitution fall) under the Concurrent List.
The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) proposes significant changes to India’s criminal justice system. While the BNSS2 includes positive steps like mandating forensic investigations, it raises concerns in several areas:
Limited Bail and Plea Bargaining: Changes to bail provisions and restrictions on plea bargaining could limit the rights of the accused and exacerbate prison overcrowding
Data Collection and Due Process: The BNSS2 expands data collection powers, but these might overlap with existing legislation and raise privacy concerns. Additionally, property attachment procedures lack safeguards compared to the PMLA.

Redundancies and Overlooked Reforms: The BNSS2 replicates provisions from existing laws, creating redundancy. Furthermore, it fails to incorporate well-established recommendations for reform in areas like sentencing guidelines and wrongful accusation compensation. The changes in remand procedure are some of the very problematic aspects which must be viewed with caution. Ideally, better funding and infrastructure along with increased safeguards should be further incorporated in the criminal justice administration to better complement any procedural law. It seems that as part of the decolonisation process (from a law made in 1973), name of the act itself has been changed as well as all the references to the word ‘code’ have been substituted for the word ‘Sanhita’. Conversely, one might argue that by still retaining some problematic aspects such as vast discretion granted to the authorities in arrest and investigation still makes it seem colonial.

Written by Hariraghava jp

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POCSO: The mandatory reporting under Section 21 of the POCSO Act should not be confused with delay in reporting or failure to report : Delhi High court

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POCSO: the mandatory reporting under Section 21 of the POCSO Act should not be confused with delay in reporting or failure to report : Delhi High court

Case title: Jasvinder Kaur & Anr vs State& Anr.
Case no.: CRL. REV.P. 401/2020 & CRL.M.A. 17563/2020, CRL.M.A. 3620/2022
Dated on: 07TH May 2024
Quorum: Hon’ble Ms. Justice Amit Sharma.

FACTS OF THE CASE
The present petition Respondent no. 2 sent a complaint dated 10.09.2018 to the Director, Directorate of Education, Delhi alleging that his son (heretofore referred to as Master “VA” / PW-1), a minor aged about 12 years then, studying in class 7th in a public school had been sexually assaulted by few of his classmates in the preceding year [the name of the survivour and the school are withheld to protect the identity of the survivour in accordance with section 23 of the POCSO Act] and that when Respondent no. 2 approached the school management with the issue and persisted with his adamant efforts requesting for rustication of the 5 alleged CCLs involved in the incident; the management responded to the same with rustication of “M” and “R” and with issuance of warning to the 3 other CCLs. Furthermore, in the aforesaid complaint, it was stated that even after the alleged incident leading to rustication and warning, school authorities and especially one Ms. J. K. S. (name withheld), Teacher-in-Charge of the school continued to mete out different treatment to the survivour (Master “VA” / PW-1), who intentionally was made to sit at the back of the classroom secluded from other students despite his poor eyesight and was failed in class VII. CRL. REV.P.401/2020. One copy of the aforementioned complaint was sent to the DCP, Central District, Darya Ganj, on the basis of which, FIR no. 421/2018 under Sections 377/34 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (heretofore referred as “POCSO Act”) was registered in PS Karol Bagh against the CCLs on 02.10.2018 (Annexure C-3), which was further referred to Juvenile Justice Board where it is currently pending. During investigation, on 06.10.2018, statement of the survivour “VA” (PW-1) under 164 of the Code of Criminal Procedure (heretofore referred as “Cr.P.C.”) was recorded; where he corroborated the allegations made in the complaint regarding forceful unnatural sex by 5 of his classmates.
He further corroborated to the inequitable and exclusionary treatment meted out to him by the school authorities including the Vice-Chairperson and the Teacher-in-Charge, Ms. J.K.S. On further investigation, all 5 CCLs were apprehended. The Principal and Vice-Chairperson Section 21 POCSO Act were thereafter framed against the petitioners. The petitioners in their application under Section 319 of the Cr.P.C. prayed for impleadment of Respondent no. 2 (PW-2) and Ms. G.K. (name withheld) as accused(s) in the case under Section 19 read with Section 21 of the POCSO Act; however, the same was dismissed by the Special Judge (POCSO Act), THC (Central), Delhi on 21.09.2020 on the ground that inculpatory statement of Respondent no. 2 (father of the survivour/PW-2), who is a prosecution witness cannot make him liable to be arrayed as an accused under Section 319 of the Cr.P.C. (Annexure A-1). Hence, the present revision petition.namely Jasvinder Kaur, W/o Gurpreet Kaur, R/o GH13/84, Paschim Vihar, New Delhi (petitioner no. 1) and Harvinderjeet Singh, S/o Sardar Satwant Singh, R/o I-16/390, Military Road, Anand Parbat, Karol Bagh (petitioner no. 2) were given notices under section 41A of the Cr.P.C. Chargesheet was filed. Charges under Section 21 POCSO Act were thereafter framed against the petitioners. The petitioners in their application under Section 319 of the Cr.P.C. prayed for Impleadment of Respondent no. 2 (PW-2) and Ms. G.K. (name withheld) as accused(s) in the case under Section 19 read with Section 21 of the POCSO Act; however, the same was dismissed by the Special Judge (POCSO Act), THC (Central), Delhi on 21.09.2020 on the ground that inculpatory statement of Respondent no. 2 (father of the survivour/PW-2), who is a prosecution witness cannot make him liable to be arrayed as an accused under Section 319 of the Cr.P.C. (Annexure A-1). Hence, the present revision petition.

CONTENTIONS OF THE APPELLANT
The learned Counsel for the petitioners submitted that they had only received a complaint of bullying amongst students of the class of the survivour, which was subsequently resolved by holding a meeting on 14.07.2017. Respondent no. 2 who is the father of the survivour was satisfied with the resolve made out in the issue by the school authorities, so much so that he had provided a letter of satisfaction to the school authorities on 15.07.2017 (Annexure D-4) assuring not to take any legal action against the school authorities. The learned Counsel for the petitioners further submitted that Respondent no. 2‟s (complainant/ explicit “admission” of the “knowledge” he had regarding commission of the sexual assault one year back does not provide him a leeway under POCSO Act and he is equally liable to inform the police about the incident as per the mandate of Section 19 and 21 of the POCSO Act, as Section 21 of the act renders “any person” liable for failure to report the case, which includes parents of the survivour as well. Furthermore, it is submitted that there was a delay of 13 months on behalf of Respondent no. 2 in reporting the alleged incident to the police, who conveniently made the complaint when his son, i.e., the survivour (PW-1) was rusticated from the school on non-payment of his yearly fees.
It is further submitted that the intention of the legislature behind framing such a stringent law as that of POCSO Act was to protect the children from sexual abuse, in which the perpetrators sometimes happen to be close relatives/parents of the children; therefore, both Section 19 (1) which mandates reporting and Section 21 which makes non-reporting punishable have been worded with “any person”. It is thus submitted that Respondent no.2 (the father of the survivour/PW 2) who is a prosecution witness in this case should be arrayed as an accused and there should not be any immunity given to him under the aegis of Section 132 of the Evidence Act as procedural law is always subservient to substantive law. Reliance was placed on Saiyad Mohammad Bakar El- Edroos (dead) by LRs vs. Abulhahabib Hasan Arab and others AIR 1998 SC 1624. Since the complainant admitted voluntarily of his knowledge about the alleged incident in his complaint in the preceding year, it can be used as evidence against him in both civil and criminal proceedings. Section 132 of the Evidence Act protects against self-incrimination; however, in consideration of the above circumstances, statement given by Respondent no. 2 (father of the survivour/PW-2) cannot be construed as self-incriminatory.

CONTENTIONS OF THE RESPONDENTS
Learned APP for the State submitted that the petitioners have exhausted all their remedies, including challenging the order on charge and even for recalling of PW-2 (father of the survivour) for further examination. It is further submitted that Respondent no. 2 came in possession of the knowledge of the alleged incident from one Ms. G.K., i.e., mother of the survivour‟s friend, Master “MS”, who in turn informed him and the school authorities. 9. It is further submitted that the school authorities had called the father (PW-2) and he was forced to sign the satisfactory letter dated 15.07.2017. Besides, in their testimonies, both the survivour child (PW-1) and the father (respondent no. 2) have explained the circumstances and corroborated the contents of the initial complaint. It was also submitted that the survivour has himself in his statement deposed about the acts of mistreatment by the Principal madam, the Vice-Chairperson of the school (the petitioners herein) and one J.K.S., the Teacher-in-Charge. It is further submitted that complaint dated 10.09.2018 was addressed to the Director, Directorate of Education, Delhi and was also sent to the Hon‟ble Lieutenant Governor and the DCP, Central District, Darya Ganj, on which the aforementioned FIR was registered. Learned Counsel on behalf of Respondent no. 2 submitted that “mandatory reporting” under Section 21 of the POCSO Act should not be confused with “delay in reporting” or “failure to report”, because if the “mandatory reporting” provision is given utmost importance, then the legislative intent of the framers as far as the best interest and primary well-being of the child are concerned, would be defeated.
It is further submitted that the petitioners have blatantly revealed the identity of the survivour and respondent no. 2 which stands in contravention to the provision of POCSO Act and a catena of judgements. It is further submitted that the revisional jurisdiction of the High Court and the Court of Sessions under Section 397 and 401 of the Cr.P.C. can only be invoked by the High Court or the Court of Sessions for the purpose of satisfying itself as to the correctness, legality or proprietary of any finding.

LEGAL PROVISIONS
Section 397 of the Code of Criminal Procedure: The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding.
Section 23 of the POCSO Act: No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
Sections 377 of the IPC: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine or both.
Section 34 of the IPC: when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone.

COURT’S ANALYSIS AND JUDGEMENT
The perusal of the aforesaid provisions reflects that the reporting of the nature of incident as mentioned hereinabove is mandatory. Keeping in view of the object of the aforesaid sections, a timely intervention is necessary and important. But the aforesaid provision provides for punishment in case of non compliance of the provisions of Section 19 for reporting an offence and not a belated one. As has been noted in the impugned order that the charges qua the petitioner were framed vide order dated 18.04.2019 under Section 21 of the POCSO Act, which was challenged by way of revision petition before this Court, which was subsequently dismissed as withdrawn vide order dated 17.02.2020. Initially, the application under Section 319 of the Cr.P.C. on behalf of the petitioners was against respondent no. 2 herein and one Ms. G.K, i.e., mother of friend of the survivor, i.e., Master “MS”. It is a matter of record that the aforesaid Ms. G.K. is not being arrayed as a respondent in the present petition. the present case as noted above, respondent no. 2 had filed a complaint on the basis of which the present FIR had been registered, chargesheet was filed and the prosecution evidence stands complete. The delay in making the complaint by respondent no. 2 can be used as a defence by the petitioner during the course of the trial. It was pointed out by learned APP for the State, assisted by the learned counsel for the complainant that sufficient explanations have been given by respondent no. 2 and the survivour during their testimony to explain the delay.
This Court is not entering into the issue whether the said explanation was satisfactory or not, as the same is to be determined by the Learned Trial Court if such defence is taken by the petitioner during the course of the trial. For the purpose of this petition, it is suffice to say that the complaint filed by respondent no. 2 will not bring the case of the latter under Section 21 of the Act, which provides for punishment for “failure to report”. In the present case, respondent no. 2 has reported the case to the concerned authorities, in pursuance of which, the present FIR was registered. the present petition is dismissed and disposed of accordingly.

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Judgement Reviewed by –HARIRAGHAVA JP

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Minors should be taught about ‘virtual touch’ to be safe on social media: Delhi High Court

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Minors should be taught about ‘virtual touch’ to be safe on social media: Delhi High Court

Case title: Kamlesh Devi vs State of Delhi NCT & ANR.
Case no.: BAIL APPLN.NO. 216 OF 2024
Dated on: 6th May 2024
Quorum: Justice Hon’ble Ms. Justice Swarana Kanta Sharma.

FACTS OF THE CASE
The present application under section 439 of the criminal procedure code 1973, has been flied on behalf of the applicant seeking regular bail in case arising out of FIR bearing No.335/2021, registered at Ranhola, police station Delhi for offence punishable under section 363 of the India Penal code, 1860. It is case of the prosecution that on 30.05.2021, the present FIR was lodged by the complainant I.e Smt. X, who had reported that her daughter i.e., ‘S’ aged approximately 16 years was missing. Thereafter, the present FIR was lodged under section 363 of IPC. On 23.07.2021, the mother of the prosecutrix accompanied by the prosecutrix herself, had visited the police station stating that the minor victim had been recovered from Bhind, Madhya Pradesh. The minor victim was allegedly kidnapped by a person she met on social media and subsequently kept confined in a room, where she was sexually assaulted for around 20-25 days. Later, she was coerced into marriage with a 45-year-old man against her will, in exchange for money.
The statement of the prosecutrix recorded under Section 164 of the Cr.P.C revealed shocking details of the ordeal she had endured. She stated that she had come in contact with the co-accused, Rajiv, through social media in 2021. On 29th July 2021, she went to meet Rajiv at Madhuban Chowk Delhi, where she was allegedly given an intoxicating drink and kidnapped. She was taken to Bhind, Madhya Pradesh, where she was confined in a locked room and sexually assaulted by Rajiv. The prosecutrix further alleged that all the family members of Rajiv, including Kamlesh Devi, the present applicant/accused, were involved in the commission of the offense. She specifically accused Kamlesh Devi of catching her when she attempted to escape and physically assaulted her. Thereafter, the chargesheet in the said case was filed for offence punishable under section 363, 365, 372, 376, (2)(n). 344,346,34 of the IPC and section 6, 17 of the protection of children from sexual offences Act, 2012 (POCSO Act).

CONTENTIONS OF THE APPELLANT
The appellant learned counsel argues that the present applicant has been falsely implicated in the present case and that the FIR does not disclose the role of the present applicant in any manner and further statement of the prosecutrix recorded under section 164 Cr.P.C does not assign any specific role to the applicant. He further submitted that there are material inconsistencies in the statement of the prosecutrix recorded under section 161 and 164 of the Cr.P.C. meaning thereby, that prosecutrix is falsely implicating the present applicant.
It is further argued that the prosecutrix was recovered from the house of present applicant of other co-accused I.e Rammohan and not from the house of the present applicant. It is further submitted that the present applicant is in Judicial Custody for approximately 19 months and that the present applicant is a housewife and is dependent on her family for her livelihood. It is further submitted that the present applicant is a resident of Madhya Pradesh whereas the prosecutrix is resident of Delhi and therefore there is no change of her influencing the witness or tampering with the evidence. It is submitted that the trail in the present case will take long time to conclude thus, the present applicant be enlarged on Bail.

CONTENTIONS OF THE RESPONDENTS
The learned respondent APP submitted by state opposes the present bail application and argues that as per allegations and supporting material on record, there are serious allegations against the accused for abetment of kidnapping and rape. It is further submitted that 4 witnesses have been examined out of 18 witnesses and that the prosecutrix has also been examined who has supported the case of prosecution. It is further argued that if the applicant is enlarged bail there is strong possibility that the applicant may threaten or influence the remaining witnesses. It is argued therefore, that the present bail application be dismissed.

LEGAL PROVISIONS
Section 439 of code of criminal procedure: The High court or court of session may direct the release on bail of any person who is in custody and has been charged with an offence.
Section 363 of Indian Penal Code 1860: Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for term which may extend to seven years and shall also be liable to fine.
Section 365 of Indian Penal Code 1860: Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined shall be punished with imprisonment of either description for term which may extend to seven years and shall also be liable to fine.
Section 376 of Indian Penal Code 1860: whoever, except in the cases provided for in sub- section (2), commits rape, shall be punished with rigorous imprisonment of either description for term which shall not be less than ten years, but which extended to imprisonment for life and shall also be liable to fine.
Section 6 of Protection of children from sexual offence (POCSO Act): whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life and shall also liable to fine.
Section 17 of Protection of children from sexual offence (POCSO Act): Punishment for abetment.

COURT’S ANALYSIS AND JUDGEMENT
The Delhi High Court directed stakeholders such as schools, colleges, Delhi State Legal Services Authority, and Delhi Judicial Academy to incorporate education about ‘virtual touch’ into their curriculum alongside traditional concepts of ‘Good’ and ‘Bad Touch’, emphasizing its potential dangers.
A bail plea was filed by the petitioner who was accused of involvement in the kidnapping and exploitation of a 16-year-old girl. The court said that the stressed the necessity of educating children about ‘virtual touch’ to address the risks prevalent in the digital sphere. The Court said, “Just as children are taught to exercise caution in the physical world, efforts must be made taken to teach them to develop critical thinking skills to assess the credibility of online contacts and safeguard their personal information.” Explaining the concept, the Court emphasized that educating minors about ‘virtual touch’ entails instilling knowledge about appropriate online conduct, identifying signs of potential predatory behavior, and understanding the significance of privacy settings and online boundaries. The Court said, “Moreover, parents, guardians, and educators play a crucial role in fostering digital literacy and promoting responsible online conduct among minors. By fostering open communication channels and providing guidance on navigating the digital landscape, adults can empower children to make informed decisions and protect themselves from online threats. The Court added, “The need of the hour in this case is also to send a message through this order/judgment to the concerned stakeholders such as schools and colleges, Delhi State Legal Services Authority as well as Delhi Judicial Academy to hold programs, workshops, and conferences focusing not only on the traditional concepts of ‘Good’ and ‘Bad Touch’ but also on the emerging concept of ‘Virtual Touch’ and its potential dangers. This Court, therefore, emphasizes that the concerned stakeholders should include in their curriculum apart from the education about good touch and bad touch the virtual touch and its repercussions and danger. Accordingly, the present application stands dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

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Supplication of Juvenility May Be Raised Before Any Court and It Shall Be Recognised at Any Stage, Even After Final Disposal of the Case: Supreme Court

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Supplication of Juvenility May Be Raised Before Any Court and It Shall Be Recognised at Any Stage, Even After Final Disposal of the Case: Supreme Court

Case title: Rahul Kumar Yadav vs The State Of Bihar
Case no.: CRIMINAL APPEAL NO. 177 OF 2018
Dated on: 25th April 2024
Quorum: Justice Hon’ble Mr. Justice B.R. Gavai and Justice Hon’ble Mr. Justice Sandeep Mehta

FACTS OF THE CASE
The appellant and a co-accused were tried in sessions trial for the offence under section 302 and 394 of the IPC (Indian Penal Code) 1860, and 27(2) 0f the Arms act, 1959. The trail court convicted them, sentencing them to death for the Section 302 Charge. They filed an appeal to the Patna High court, resulting in a split opinion from the division bench. One judge found the appeal without merit, while the other believed they should be acquitted due to doubt. The matter was then referred to the third bench, who dismissed the appeal but commuted the death sentence to life imprisonment.
Before the case committed, the appellant claimed juvenile status under the Juvenile Justice (Care and Protection of Children) Act, 2000, based on his horoscope. However this claim was rejected both by the chief judicial Magistrate and later by the trial court. When the matter was committed by the Chief Judicial Magistrate to the trail court, a fresh petition under section 7-A of the JJ Act, 2000 was filed by the appellant claiming himself to be a juvenile in conflict with law was rejected vide order dated 28.11.2011 considering the fact that earlier the Chief Judicial Magistrate has rejected a similar applications preferred by the appellant.

CONTENTIONS OF THE APPELLANT
The learned ASG, his submitted that the plea made on behalf of the appellant in the trail court claiming that he was a Juvenile on that date of the incident was dismissed in an absolutely perfunctory manner without holding a proper inquiry and simply on the ground that the same prayer had been turned down by the learned chief Judicial Magistrate earlier Even in the appeal before High Court, a pertinent Plea was raised on behalf of the appellant that he was a juvenile on the date of the incident and thus the proceeding undertaken against him in the trail court were vitiated.

CONTENTIONS OF THE RESPONDENTS
The respondent counsel submitted that shri Rauf Rahim and urged that the highly belated plea of juvenility on behalf of the appellant should not be entertained by this court. We have given our thoughtful considerations to the submission advanced on behalf of the appellant and have also gone through the material available on record. The pendency of the appeal before the Patna High court, the Juvenile Justice Act,2000 hereinafter being referred to as the JJ act 2015 had come into force which provides a comprehensive mechanism to consider the prayer of juvenility raised on behalf of an accused claiming to be a child on the date of the commission of the offence.

LEGAL PROVISIONS
Section 302 of IPC 1860: prescribes the punishment for murder whoever commits murder shall be punished with death or imprisonment for life, and shall liable to fine
Section 394 of IPC 1860: Any person, in committing or attempting to commit robbery voluntarily causes hurt shall punished with imprisonment for life or with rigorous imprisonment for term which may extend to ten years
Section 27(2) of The Arms Act 1959: Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for life and shall also liable to fine.
Section 366 of The code of criminal procedure 1973: when the court of session passes a sentence of death, the proceeding shall be submitted to the High court, and the sentences shall not be executed unless it is confirmed by the High Court.
Section 7-A of Juvenile Justice (care and protection of children Act,2000): Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was juvenile on the date of commission of the offence the court shall make an inquiry, take such evidence as may be necessary and it passed to JJ board for passing appropriate order.

COURT’S ANALYSIS AND JUDGEMENT
In the present case, the appellant file an application at the earliest point of the time raising the claim of juvenility based on horoscope before the learned chief judicial magistrate. The said application was rejected. However, before the trail court, the birth certificate was presented and plea for determination of age was raised learned trial court rejected the said prayer by observing that even though the birth certificate was issued in the year of 1995, the same was not presented along with application filed earlier before the learned chief judicial magistrate. A claim of juvenility may be raised at any stage even after the final disposal of the case the delay in raising the claim of juvenility cannot be a ground for rejection of such claim. We hear by direct that the learned first additional sessions judge it shall conduct a through inquiry to determine the age/date of birth of the appellant in accordance with the procedure provided under the JJ act, 2015 and the rules frame under. We find that proper inquiry in accordance with the provisions of the JJ Act, 2000 or the JJ Act, 2015. The enquiry shall be completed within 12 weeks from today. The inquiry report shall be forwarded to this court and copy shall also be provided to the accused and prosecution. The matter shall be listed for hearing in the third week of august 2024.

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Judgement Reviewed by – HARIRAGHAVA JP

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