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Patna High Court directed the District Court to release the car in favour of the petitioner after verifying the registration of the car

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TITLE: Sukh Sagar Kumar v. The State of Bihar & Ors.

Decided on: 20-07-2023

Cr.WJC No: 1491/2022

Coram: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA 

Facts of the case:

The order dated 06.09.2022, issued in NDPS Case No. 30/2021 by the learned 1st Additional Sessions Judge, Begusarai, has been challenged in the current writ application.

The petitioner’s car, with registration number BR 09 AJ/0706, was parked outside the home of the accused identified in the FIR when a search was conducted, and 385 gms. of brown sugar were found inside the vehicle. These are the key facts that gave rise to the current writ application. It has been claimed that the car in question was used by the accused individuals listed in the FIR to carry illegal substances, and brown sugar has also been found inside. As a non-FIR named accused, the petitioner has been added.

Learned Counsel for the petitioner claims that the vehicle that was seized and whose registration number is BR 09 AJ/0706 belongs to the petitioner. He was unaware that brown sugar was kept in the vehicle. He further states that the petitioner is not named in the First Information Report and that the police actually seized his car on December 2, 2021, as would be clear from the GPS data, but that the police only revealed the actual seizure on December 3, 2021, after the First Information Report was filed against other accused parties. The petitioner has attached the registration certificate as proof of ownership. He additionally submits that the confiscation action has not yet begun and that it cannot begin until the trial is over in accordance with Section 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He also asserts that because the car in question is stored in the police station’s open area, it is constantly deteriorating and losing its ability to go on public roads. 

On the other hand, the State’s learned counsel opposes the petitioner’s request to have the car released in his favour while the trial and/or confiscation proceedings were ongoing, arguing that the petitioner knew the car was being used to transport a prohibited substance and that it was parked in front of the accused people’s home. Furthermore, he claims that the in question car has been found to contain a commercial amount of brown sugar.

Analysis of the court and decision:

The court has heard counsel for petitioner and learned Additional Public Prosecutor for the State.Reviewing Section 60 of the 1985 Narcotic Drugs and Psychotropic Substances Act, it appears that any conveyance used to transport such substances is subject to confiscation if it can be demonstrated that the owner of the vehicle or conveyance knew about or approved of its use. There cannot be any confiscation in the initial instance without any such material.

Sections 451 and 457 of the Code of Criminal Procedure, 1973, which deal with the court’s authority to order the disposal or custody of the property pending trial in certain cases and the procedure by the police upon seizure of the property, would apply to the question of the car’s release in light of the aforementioned facts.

Accordingly, the order dated 06.09.2022, passed by the learned 1st Additional Sessions Judge, Begusarai, in NDPS Case No. 30/2021, arising out of Sahebpur Kamal Police Station Case No. 288 of 2021, is set aside and the learned District Court is directed to release the car, in question, in favour of the petitioner after verifying the ownership/registration of the car within a period of four weeks from the date of receipt/production of a copy of this order, subject to the following conditions:- 

(1) That the petitioner shall furnish bank guarantee of Rs. 3 Lacs to the satisfaction of the learned District Court; 

(2) That before handing over the car to the petitioner, a detailed and proper Punchnama of the said car, after taking its photograph, shall be prepared; 

(3) That the petitioner shall also execute bond that the car, in question, shall be produced as and when required at the time of trial or confiscation proceeding; and

(4) That petitioner shall also furnish an undertaking on oath that he shall not alienate or part with the ownership of the car, in question, till pendency of the trial or confiscation proceeding, if any. 

With the aforesaid directions and observations, this application is allowed.

There shall be no order as to costs. 

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Delhi High Court granted bail to the petitioner who was imprisoned for more than seventy days.

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Title: Prabhakar Reddy vs State of Delhi (Govt. of NCT)

Date of decision: 13th July, 2023

+ BAIL APPLN. 2025/2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

The complaint of Mr. Vivek Rana, an authorised representative of DMI Finance Private Limited (hence “complainant company”), which asserted that M/s P dot G Constructions Private Limited violated the law, led to the registration of the current FIR.

Through its directors, who included the petitioner and his wife, [hereinafter “borrower company”], obtained a loan from the complainant business for Rs. 35,000,000/- according to a first-term loan agreement dated August 18, 2015. On January 27, 2017, the parties additionally agreed to a Second Term Loan Agreement, under the provisions of which an additional sum of Rs. 17,00,000 was approved.

The parties signed a Memorandum of Settlement on January 3, 2017, which was exchanged. According to the terms of the agreement, the borrower firm allocated the complaint company the receivables from a number of identified sold units as well as rights to a number of identified unsold flats.

The lawsuit claims that the accused individuals shifted title and control of several residences that were allocated to the complainant without the complainant’s knowledge. Additionally, it is claimed that the loan money was misappropriated and utilised for other projects, resulting in the complainant’s unlawful loss of Rs. 52,000,000.

The borrower company’s forensic audit report, which was acquired from Brahmayya & Co. Chartered Accountants, showed that bank and cash receipts recorded in the internal Cash Relationship Management data of the borrower company were not accounted for in the books of accounts. The inquiry also showed that the defendants personally took the money from the different house buyers and used it for their own or other initiatives. The inquiry revealed that the accused individuals misappropriated the receivables and failed to deposit them in the Escrow Account in violation of the terms and conditions of the assignment agreement with the lenders.

By rulings dated May 26, 2023, and June 2, 2023, respectively, the learned Chief Metropolitan Magistrate and the learned Additional Sessions Judge both rejected the petitioner’s bail requests.

Analysis of the court

The petitioner’s primary domicile is in Chennai, and he solely does business there. The investigating authorities have already taken the petitioner’s passport. The petitioner is therefore unlikely to elude justice. Additionally, the petitioner is no longer a director of the borrower firm, making it less likely that she would tamper with the evidence or sway any witnesses.

When the investigation against the petitioner is already finished and a chargesheet has been filed, granting bail based only on the fact that the petitioner’s wife is the subject of the inquiry is inadmissible. At this point, the Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40 (Refer para 21-22 & 42), may be cited.

It would not be wise to imprison the petitioner indefinitely in light of the extract above, the likelihood that the trial in the matter will take some time, and the assurance given on behalf of the petitioner that he will continue to cooperate in the investigation qua his wife as well. The petitioner has already been detained for seventy days.

Due to the aforementioned factors, this Court determines that the petitioner should be granted bail in the current instance. The petitioner is therefore ordered to be freed in exchange for a personal bond in the amount of Rs. 1,00,000 and one surety in an amount equal to that, subject to the satisfaction of the Trial Court and additionally subject to conditions.

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The court should only use the authority granted by Section 311 CrPC to further the interests of justice.

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TITLE: Anil Sehgal v State of Punjab

Decided On-: March 10, 2023

CRM-M-8107-2018 (O&M) and CRM-M-8363-2018 (O&M)

CORAM: Hon’ble Justice Mr. Aman Chaudhary

INTRODUCTION-   The defendant, Vikas Shrivastva, challenges the application in a reply, claiming that he is entitled to a speedy trial under article 21 of the Indian Constitution. While the FDR regarding the alleged incidents was registered in 2007, the challan in the case was filed on November 10, 2009, and the charge in the aforementioned case was framed on June 4, 2011. The case in question dates back to 1993. The prosecution’s case has been hanging since that point due to a lack of prosecution evidence.

FACTS OF THE CASE-

The current petitions have been filed under Section 482 CrPC to set aside the order dated 19.01.2017, Annexure P-11, passed by the learned Judicial Magistrate 1 Class, Ludhiana, and to issue the proper instructions to the learned Judicial Magistrate 1 Class, Ludhiana to consider and decide the applications dated 17.10.2010 and 24.01.2012 arising out of FIR No. 18 dated 28.02.2007, Annexure P-1, registered at Police Station Ladhowal

Allegations against the petitioner included that the complainant, who was the promoter-director of M/s Sutlej Fun Resorts Limited and owned 30% of its shares, provided sureties and securities, including personal undertakings, and signed various loan agreements in order to obtain the loan amount from different financial institutions, including PSIDC and PFC, among others. He also agreed to part with his retained titled deeds in the form of an equitable mortgage. The similarly accused G.D. Agarwal and A.K. Agarwal deposited their respective title deeds to secure the loan facilities, along with other Directors, but they did so with ulterior, dishonest motives from the start. The accused never complied with the PSIDC requirement that no changes to the Board of Directors or management of the company could be made without their prior approval when the loan was sanctioned and granted; however, they forced the complainant to sign an agreement that required him to sell 20% of his shares in favour of G.D. Agarwal and 10% of his shares in favour of Mukesh Khullar, and the remaining 30% of his shares in the company would be paid in full. Instead, they filed a false and baseless criminal complaint against the petitioner and his family members. By transferring the complainant’s share and forging his signatures, they caused the complainant to suffer an injustice and themselves to benefit unfairly. As a result, the case’s challan was delivered on September 21st, 2009.

COURT ANALYSIS AND DECISION

The learned trial Court, according to the learned counsel, erred in dismissing the application primarily on the basis of hyper technicality because the complainant lacked locus standi to file it and the prosecution should have been the one to do so. Learned According to the state attorney, the petitioner’s application was correctly rejected by the skilled trial court because it lacked locus standi, and the contested order contains no errors.

With regard to CRM-M-8363-2018, the learned State counsel claims that the applications, Annexures P-7 and P-8, have already been decided, making the petition infructuous. This petition is asking the trial court to direct itself to decide the applications.

Considering the discussion from above, this Court concludes that the order contested in CRM-M-8107-2018 is not unlawful or erroneous. Due to the infructuous disposition of CRM-M-8363-2018, the aforementioned petition is hereby dismissed.

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Law and Custodial Death.

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The death of a person in custody violates the basic rights of the citizens recognized by the Constitution of India. Typically, it is difficult to secure evidence against the police responsible for adopting third-degree methods since they are in charge of the police station records. The guidelines given by the Supreme Court under various cases provide protection such as the right to be informed about the grounds of arrest, the right to bail, the right to appoint a person to be informed of the arrest and place of detention, etc. The Constitution of India also provides various rights to a person in custody.

Introduction:

Custodial death is one of the most heinous crimes in a civilized society regulated by the Rule of Law. Sometimes, custodial death happens due to not providing proper care at a proper time, due to complications of physical torture by police and some deaths remain suspicious. Custodial death in terms of Human Rights is a wretched offense. Custodial violence is the most prominent factor responsible for deaths in prisons and lock-ups. The incident of custodial death in the world’s greatest democracy has risen. Our Constitution has set out fundamental rights to guarantee certain basic rights and liberties to the citizens. The toll of deaths in police custody is on the rise in the past decade. Many deaths have happened while in custody but no attention has been paid so far. The National Human Rights Commission has proposed that in custodial death cases the police officer in charge must be held liable and not the state. In India, police lock-ups are managed by the police, and such incidents are possible only by their actions. Thus, custodial death is an important issue for a country like India.

Custodial Death

The death of a person while in the custody of the police or judiciary will amount to Custodial Death. Custodial Death can happen due to Negligence by the concerned authorities in any form of torture or cruel, inhuman, or degrading treatment by the police officers whether it occurs due to investigation or interrogation, unlawful detention of a person more than a stipulated time, and so on. Prisoners are entitled to fundamental rights under the Indian Constitution while they are in custody. They are not deprived of basic human rights except those which are curbed by the court.

Custodial death generally refers to death either in police custody or judicial custody.

Police Custody: A police officer arrests the accused by following the receipt of information or compliant or report by police about crime and prevent him from committing further offenses and brings him to the police station is known as the police custody. In this, the accused is kept in the lock-up.

Judicial Custody: When an accused is kept in jail by the order of the concerned magistrate, then it is said to be under Judicial Custody. When an accused is presented before a magistrate, he can either be sent to jail or kept under police custody by the magistrate.

Offenses Committed by Police Misusing the Custody:

Police are misusing the Custody and causing torture to the victims in the custody. This generally means the action or practice of inflicting severe pain on someone as a punishment to force someone to make him give some information. Due to this, the victims get immense pain and suffering. It deprives victims of life’s enjoyment and also compels them to commit suicide.

Rape: Rape is one of the prevalent forms of custodial torture. The Mathura rape case where Mathura, a kidnapped minor was raped by three policemen in the lockup is an example of such custodial torture.

Harassment: In Nilabeti Behara v. the State of Orissa, the victim had died due to the harassment and beatings by the police. Such actions are prevalent among the police and it leads to many sufferings to the victims.

Illegal Detention: In Rudal Shah v. the State of Bihar, the accused was kept in jail for 14 years, after his acquittal by the Sessions Court. Such action leads to immense pain and suffering.

Statutory Provisions:

The Constitution of India, 1950

Article 21:

Article 21 provides the citizens of India with the right to life and personal liberty. In the Case of D.K. Basu v. State of West Bengal, The Hon’ble Supreme Court held that the rights guaranteed under Article 21 of the Constitution could not be denied to convicts, under-trials, and other prisoners in custody, except according to the procedure established by law. The Supreme Court in this case laid down certain guidelines to be followed by the Centre and State investigating and security agencies in all cases of arrest and detention. Hence, these guidelines are popularly known as “D.K. Basu guidelines” and are as follows;

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear clear identification and name tags with their designation.
  2. The police officer carrying out the arrest must make a memo of arrest at the time of the arrest.
  3. A friend or relative or any other person known to the arrestee shall be informed about the arrest as early as possible.
  4. If the next friend or relative of the arrestee lives outside the district or town, they must be informed through the ‘legal aid organization’ in the district and the police station of the area concerned telegraphically after the arrest within a period of 8 to 12 hours.
  5. The arrested person must be instructed about the right to have informed someone about his arrest.
  6. An entry should be made in the diary regarding the arrested person.
  7. The arrestee should be examined at the time of the arrest.
  8. The arrested person should be subjected to medical examination within 48 hours during his detention.
  9. Copies of all documents including the memo of arrest should be sent to the concerned magistrate for his record.
  10. The arrestee should be allowed to meet his lawyer during interrogation.
  11. A police control room should be set up in all district and state headquarters and information about the arrestee has to be communicated within 12 hours of effecting the arrest to the police control room.

There are certain rights for prisoners conferred in Article 21. They are:

  • Right to bail.
  • Right to free legal aid.
  • Right against Solitary Confinement.
  • Right against Handcuffing.
  • Right against inhuman treatment.
  • Right against Illegal Detention.
  • Right to a speedy and fair trial.
  • Right to meet friends and consult a lawyer. 

Article 20:

Article 20(1) provides that a person should be prosecuted as per those laws that were in force when he committed the offense.

Article 20(2) provides that a person shall not be prosecuted and punished for the same offense more than once.

Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself.

Article 22:

Article 22 guarantees protection against arrest and detention in certain cases and provides that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest. They shall not be denied the right to consult and defend themselves by a legal practitioner of his choice.Article 22(2) directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest, excluding the journey time necessary from the place of arrest to the Court of Magistrate.

The Code of Criminal Procedure, 1973

  • Section 49 provides that the police are not permitted to use more restraint than is necessary to prevent the escape of the person.
  • Section 50 lays down that every police officer arresting any person without a warrant to communicate to him the full particulars of the offense for which he is arrested and the grounds of such arrest. Further, the police officer is required to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offense.
  • Section 176 requires the Magistrate to hold an inquiry into the cause of death whenever a person dies in custody of the police.
  • There are some provisions like Section 53, 54, 57, and 167 which are aimed at providing procedural safeguards to a person arrested by the police.

The Indian Penal Code, 1860 (IPC)

  • A police officer murdering an accused in custody shall be punished for the offense of murder under Section 302.
  • A police officer can be punished for custodial death under ‘culpable homicide not amounting to murder’ (Section 304). The provisions of ‘causing death by negligence’ under Section 304 can also be attracted if the case falls within its ambit.
  • Once the victim has committed suicide and if it is proved that the police officer has abetted the commission of such suicide, then the police officer will be held liable for punishment under section 306.

Punishment for custodial violence

  • If a police officer voluntarily causes hurt or grievous hurt to extort confession, then such police officer shall be punished under section 330 of IPC for voluntarily causing hurt or under Section 331 of IPC for voluntarily causing grievous hurt.
  • A police officer can also be punished for wrongful confinement under Section 342 of IPC.

Compensation to the victim

The court has the power to award monetary compensation in appropriate cases where there has been a violation of the constitutional rights of the citizens. Thus, the court can award compensation to the victims of state violence or the family members of the deceased victim. The Supreme Court directed the Delhi Administration to pay Rs 75,000 as exemplary compensation to the mother of a 9 years old child who died due to beating by the police officer. In Case of Saheli Vs Commissioner of Police.

Conclusion:

Today, custodial deaths are prevalent in India. It is one of the worst crimes in our society. Prisoner while in the custody of police is entitled to all rights under Article 21 of the Indian Constitution. Every month a new case is being reported in India. Since the police play a vital role in safeguarding our life, liberty, and freedom, they must act properly. The law cannot deny basic rights like the right to life, liberty, and dignity to someone who is in the police custody and they must be protected.

References:

https://www.educentric.in/blogdetails.html?id=327&blog=case%20summary%20dk%20basu%20v.%20state%20of%20west%20%20bengal

https://lexforti.com/legal-news/custodial-death-in-india/#_ftn33

https://www.latestlaws.com/articles/rights-of-prisoners-against-custodial-torture-in-india-by-shivam-jasra/#_ftn9

https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece

https://ncrb.gov.in/hi/crime-in-india-table-addtional-table-and-chapter-contents?page=18

https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class

https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-1#:~:text=Custodial%20death%20is%20a%20death,or%20abuse%20by%20the%20authorities.

https://legalserviceindia.com/legal/article-9887-custodial-deaths-in-india.html

https://www.lawctopus.com/academike/custodial-deaths-india/

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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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