Triple Test for Grant of Anticipatory Bail’s in India

Triple Test for Grant of Anticipatory Bail’s in India 

What purpose the prosecution would achieve by sending an accused in custody is an important point to be considered. Simply because an individual is alleged to have been involved in some serious crime, does not necessarily justify accused to be send to custody, unless there are compelling factors which justify curtailing the personal liberty of an accused. The courts dealing with the issue of Anticipatory Bail’s have to balance between the personal liberty of the accused on one hand and law and order in the society on the other hand, and in doing that the courts were given complete discretion keeping in mind the facts and circumstances of each case.

In dealing with anticipatory bail applications the Triple Test rule is as follows:  

1. Presence of the accused:- In doing so the courts are guided by the conduct of the accused . If the accused has made himself available at all times whenever required in past and is co-operating with the investigation , the courts take this factor in favor of the accused while granting anticipatory bails.

2. Nature of evidence involved:- If the case is primarily based on documents and all the documents were already in the custody of the investigating agency, the scope of tampering becomes impossible and the accused be released on bail, also keeping in mind that since the accused had not tampered the documents at any point of time in past, the courts take this factor in favor of the accused while granting anticipatory bails.

3. Deep Roots in the society:- The court take judicial notice of the fact that the accused had deep roots in the society, is staying at his permanent address since long, had all properties and family within the local limits and is not previously involved in any criminal activity.

To ensure the future presence of the accused, the courts impose conditions in the form of surety of higher amount, direct the accused to appear before the investigating officer once in a month, ask the accused to submit his passport and not to travel without the permission of the court.

Above all the courts have to balance a fair investigation,fair trail ensuring that the complainant or the witnesses be not threatened or influenced, documents not tampered with, law and order in the society not disturbed, presence of the accused during trail on one hand and personal liberty of the accused as a fundamental right of life and liberty as enshrined in Article 21 of the Constitution of India on the other hand.

View Expressed are personal

Kapil Chandna Advocate

Practicing at Supreme Court of India

Advocate.kapilc@gmail.com

9899011450,9911218741

Bail in NDPS Act || Best bail lawyer in delhi

Bail in NDPS Act

The meaning of bail is “the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court”

Bail in NDPS Act. Section 37 says that no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond.

By the virtue of section 37 of NDPS Act all the offence under the act are cognizable, meaning thereby that police can arrest the person who commit any of the offence without warrant. But for this section as per the scheme enshrined in the part II of firt Schedule to the code of Criminal Procedure, 1973, offences under sections 8A, 26,27,32,46,47,58, and 59(1) and offences relating to small quantity would have been non-cognizable.

Grounds for bail in NDPS Act.

 In the case of Mathew vs State of Kerala, Kerala High Court observed that section 37 of the NDPS Act mentions the expression “Non-Bailable, but it cannot said that all the offences under the Act are Not Bailable.

8…..reading of Section 37sans the head note must clearly show that there is no specific stipulation in the body of Section 37which makes the offence under Section 20(b)(ii)(A) a non-bailable one. The stipulation in the schedule to the Cr.P.C is not seen modified by any specific provisions of Section 37. The body of Section 37 is silent as to whether an offence under the Narcotic Drugs and Psychotropic Substances Act is bailable or non bailable…..

  1. Thus there can be no trace of doubt that going by the language employed in the body of Section 37, the offence under Section 20(b)(ii)(A)is a bailable
  1. The learned Public Prosecutor contends that the head note of Section 37clearly shows that all offences under the Narcotic Drugs and Psychotropic Substances Actare cognizable and bailable. It is true that the head note reads thus

“Offences to be Cognizable and non-bailable”.

 In the body of Section 37, there is nothing that declares of offences under the Narcotic Drugs and Psychotropic Substances Act to be non bailable but the head note suggests such a possibility. There is clear, apparent and evident incongruity between the head note and the body of Section 37. The question is what would prevail.

  1. The learned Public Prosecutor further points out that the statements of objects and reasons in the amendment Act 2 of 1989 by which Section 37was amended also makes it clear that the legislative exercises of amendment was inter alia “to provide that the offences shall be cognizable and non bailable”. Clause 2

(vii) stipulates that the purpose of amendment was to provide that the offences shall be cognizable and non bailable. The earlier Section 37 was amended in 1989 to include this head note.

  1. Thus it is seen that the objects and reasons as also the head note indicate and suggest that all offences under the Narcotic Drugs and Psychotropic Substances Actare non bailable whereas the clear unambiguous stipulations in the body of Section 37does not lead to such a
  1. It is not necessary to search for the principles of law applicable. It is axiomatic in the interpretation of statutes that when the enacted provisions of the statue in the body of the statutory provisions show a particular conclusion, the head note or the objects and reasons cannot nullify or modify the effect of the enacted provisions in the body of the statute……

In respect of offences not enumerated in section 37, the bail provisions of Cr.P.C apply.

 

In the matter of Shaffi Mohammed Vs. State of Rajsthan, Rajsthan court observed that in view of the section 37 of the NDPS Ac would make it clear that sub-clause (ii) of clause

(b) of sub-clause (1) of section 37 would be applicable only in respect of offence under the section 19 or 24 or 27A and also for offences involving commercial quantity.

The court was of the view of that in case of such cases at least two conditions should be kept in mind at the time of considering the bail application under section 439 of CrPC 1973.

(Note:- Normally the accused not to be released on bail till the investigation is pending.)

Jurisdiction

 

In the matter of Mizoram Vs. Zoliana bail was granted by the additional District Magistrate in a case involving seizure of 130 gram of heroin.

The Hon’ble Gauhati High Court was in the view that the matter is exclusively triable by the special court under the act which debars the Jurisdiction of any other court including the Additional District Magistrate to try or grant bail to the accused.

No Prima Facie Case

 

Bail under section 37 of the NDPS Act can be granted only in cases where there is no Prima Facie case. The Hon’ble Jammu and Kashmir court was of the view that the sheer anchor of section 37 of the NDPS Act seems to be that bail could be granted only in case where there was no prima facie case against the accused. In the matter of Nazir Ahmed Wani vs State Of Jammu And Kashmir jammu and Kashmir court observed :-

The basis for framing the charge obviously was the satisfaction of the Court that prima facie material existed against the accused for framing such a charge. Once that was so the bail matter was rejected by the Trial Court because it had in the first breath laid down

that there did exist prima facie material for such a charge. Section 37 of the Act disallows grant of bail where a prima facie case is made out. The approach of the trial Court has been correct. Same keeps harmony with Section 37.

Reasonable Ground

 

In the matter of Shiv kumar Nagpal Vs. State of Haryana, Punjab and Harayan high court was of the view that the word “reasonable grounds” in section 37 of the NDPS Act cannot be read to mean “proved” as used in the Indian Evidence Act; such as interpretation would, set in naught the power vested in a court to grant bail pending trail.

And in the matter union of india vs Shiv shanker kesari supreme court observed that :-

  1. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to It is difficult to give an exact definition of the word ‘reasonable’. Stroud’s Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word “reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy. (See: Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another(1987) 4 SCC 497. and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another[(1989) 1 SCC 532].
  1. It is often said “an attempt to give a specific meaning to the word ‘reasonable’ is trying to count what is not number and measure what is not space”. The author of ‘Words and Phrases’ (Permanent Edition) has quoted from in re Nice & Schreiber 123 987, 988 to give a plausible meaning for the said word. He says, “the expression ‘reasonable’ is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined”. It is not meant to be expedient or convenient but certainly something more than that.
  1. The word ‘reasonable’ signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another Kamla Mills Ltd. (2003) 6 SCC 315).

Grounds for believing not guilty of offence

 

Under the section 37 of the NDPS Act the court is to only develop a belief and not to make a finding of not guilty under section 248 of the CrPC. The person is not likely to commit the an offence in future.

Sufficient ground that the petitioner may not be Convicted

 

In the matter of Ram narayan Vs state delhi high obversed that Court should be satisfied having regard to the Material available on record that there are sufficient grounds that the petitioner may not be convicted.

“6. In the backdrop of the foregoing principles, I find that the differences in the test results of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial. However, on the basis of the materials brought on record, there is every likelihood that the petitioner may not be convicted in this case. It is further to be examined as to whether there is any likelihood of the petitioner committing any offence while on bail. In this regard, the Supreme Court in the aforesaid decision, held that the satisfaction of the court as regards the likelihood of not committing any offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. It further held (in paragraph 55 of the said report) that since it is difficult to predict the future conduct of the accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence….”

Grant of bail on the ground of not forwarding the accused to the nearest judicial magistrate within 24 hours

In the matter of Suaibo Ibow cassarna Vs Union of india and sate of Maharashtra, Bombay high court was of the view of the view that the non-production of the accused within 24 hours of his arrest was clear violation of the fundamental rights guaranteed under the article 21 and 22 of the constitution on india and that on the limited ground of violation of provisions of articles 21 and 22 of the constitution, the petitioner was entitled to bail. The court observed that:-

Having regard to the  settled  position  in  law  and  having  regard  to  the  scheme  of  the provisions of section 104 of the customs act and section 42 of th NDPS ACT it  is high time that the investigating officers realise that the moment the accused was apprehended and put under complete control of the investigating officer with absolute restrictions on his movements, his arrest would be complete in law. Merely saying in the remand application that the arrest was recorded later, may be a day or two later, is unlikely to convince any Court of law and reflects very poorly on the investigating agency. Recording of the seizure panchanama and statements which are generally the two immediate steps taken could not have taken more than say 12 hours. If that be so, nothing prevented the investigation agency to produce the accused before the Magistrate within the stipulated period of 24 hours. This is not only the mandate of section 57 and section 167 of the code of criminal procedure but this is the mandate of articles 21 and 22 of the constitution of india. It is unfortunate that the Customs Officials and officials of the Narcotics Cell are indifferent to these elementary but salutary requirements regarding detention beyond 24 hours not being permissible unless the accused was produced before a Magistrate. I have my own doubts as to what would have been the fate of this application in the absence of the first contention being upheld. Many a case under the N.D.P.S. Act which would otherwise [end] in rejection of the application for bail by virtue of the provisions of section 37 of the n.d.p.s. act, would have to end in grant of bail, if there is a total violation of the mandate contained in article 21 and 22 of the constitution. It is, therefore, necessary for the investigating agency, be it the provisions of articles 21 and 22 of the constitution and ensure that utmost care is taken to comply with the same.

Struggling to get Divorce, here are some land mark cases in favor of husband

How to get Divorce easily

Struggling to Get Divorce, Here are Some Landmark cases in favor of husband

1. HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Dr. Anita Rani V/s Dr. Suresh Kumar

Wife files false criminal cases against the husband, breaking & throwing mangal sutra, getting husband arrested, neglecting household and ill-treated husband etc. are cruelty. P & H HC affirms lower court decree. Divorce granted by the court.

2. Madras High Court

A.P. Ranga Rao vs Vijayalakshmi

Wife made Suicide attempt as the husband did NOT set up the separate house. Madras HC granted a divorce for a husband. On several occasions wife threatened to commit suicide. She insisted on the husband to start a separate establishment after severing his connection with the other members of his family, namely, mother, brother, brother’s wife and unmarried brother.

3. Bombay High Court

Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha

High Court analyses that the husband has NOT proven cruelty during matrimonial life, also not proven that the wife is of unsound mind and he is entitled to get a divorce on the basis of wild, reckless and baseless allegations of impotency, lack of masculinity made by the wife.

4. Delhi High Court

Chandhok (Lajwanti) vs Chandhok

Wife drives husband out of the matrimonial home, assaulted and abused him, refused to cohabit all cruelty. HC observed that husband subjected to cruelty & has become unendurable and granted divorce to him.

6. Delhi High Court

Smt. Alka vs Dr. R.K. Gautam

Wife Refused to have sex and threatened husband with suicide, ill-treating and uncaring attitude is shown towards relatives of husband. Delhi HC decreed the Divorce.

7. HIGH COURT OF JUDICATURE AT BOMBAY

Anil Yashwant Karande, Vs Smt. Mangal Anil Karande

Wife files a false case on 498a against the husband. Bombay HC accepts the innocence of husband and it ends in discharge of the accused husband and his people and granted him divorce

8. THE SUPREME COURT OF INDIA K.SRINIVAS V/s K. SUNITA

Wife files a criminal complaint under section 307 read with 34, 148A, 384, 324 of IPC. Husband and seven members of his family were arrested on this. It was argued that this was solitary criminal complaint and cannot be considered as cruelty.Divorce granted by observing that even one false criminal complaint by wife constitutes matrimonial cruelty.

9. HIGH COURT OF JUDICATURE AT BOMBAY

Shri Mangesh Balkrushna Bhoir Vs Sau. Leena Mangesh Bhoir

Hon HC granted a divorce to the man even though trial court not specifically mentioned 498a filed by women was false. HC observed that the women have filed false cases and treated husband cruelly. Man files for divorce and granted by the civil judge but due to appeals case finally reaches the Bombay HC.

10. HIGH COURT AT CALCUTTA

Rita Bandopadhyay v/s Abhik Bandopadhyay

Wife claims that husband had illicit relations with own sister, abuse him in the office, deserted him and stops him seeing own son. Divorce granted by the court and appreciates statements and evidence that proves cruelty of wife to husband. It takes about 21 years after desertion to get a divorce in this case.

What is An Agreement to Sale?

what is greement to sale ?

What is agreement to sale?

An agreement to sale always precedes the process of actual execution of the sale deed. An agreement to sale is a very important stage of the whole process. An agreement to sell is an important document in the process of sale and purchase of property. This agreement contains the terms and conditions agreed upon between the parties. It further binds them too. An agreement to sell is the basic document on which a conveyance deed is drafted. It is always advisable to have an agreement to sell in writing.

Two agreements to sale

What if there are two agreements to sale and no execution of sale deed as such? In such cases, a very famous doctrine, i.e. Doctrine of priority in Property Law is applied. When there are two simultaneous agreements to sale of the same property, Section 48 of the Transfer of Property Act comes into play.

Section 48 says that Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

The essence of Section 48, says that the transfer of the property cannot be done of something more than what the person really has. To simplify this further, it means when with respect to one property documents of transfer of rights therein are executed at different points of time, then, earlier documents would prevail over later documents.

Section 48 determines the priority when there are successive transfers. It provides that where a person purports to create by transfer at different times rights in or over the same immovable property,

and such rights cannot all exist or be exercised to their fullest extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. Section 49 of the Registration Act provides that until the document is registered,

It shall not affect any immovable property nor can the document be received in operation of the provisions of Sections 48 and 54 of the Transfer of Property Act and there would be compliance of provisions of Section 54 of the Transfer of Property Act as well as Section 49 of the Indian Registration Act.

However, the Madras High Court in Duraiswami Reddi vs. Angappa Reddy held that the prior transferee would be entitled to enforce his rights though his document is registered later and even if the subsequent transferee entered into transactions bona fide without knowledge of the first transaction.

It was held that this result was implicit and was a direct consequence of the combined operation of Section 47 of the Registration Act and Section 48 of the Transfer of Property Act. It is also observed that the right of priority of the first transferee would be postponed only if the later transferee establishes any informative circumstances like fraud, estoppels or gross negligence.

 

This decision was followed in a later decision of the Madras High Court in Ramaswami Pillai vs. Ramaswami Naicker, as well as in the Bench decision of the Andhra Pradesh High Court in Jagannatha Rao vs. Raghavarao. 

In Chouth Mal vs. Hira Lal, an agreement to sell land in favour of one defendant was executed on 17th January, 1932. The sale-deed was executed in defendant’s favour on 5th May, 1932. But in the meanwhile owners executed an usufructuary mortgage of the same land in the plaintiff’s favour on 20th February, 1932.

It was held that the mortgage must have its due effect as against the subsequent sale. Once it is accepted that the parties really intended to convey the suit properties and possession of the said properties was in fact delivered to the conveyee in pursuance of the said conveyance, the mere omission of the plot numbers in the sale-deed is not of any consequence.

It means, if the same property has been transferred at different times the subsequent transfer shall not confer any right, title or interest on the basis of the subsequent transfer vis-à-vis the first transfer.

 

Mere registration does not convey the title to a purchaser. A transfer operates from the date of execution of the deed, although it may have been registered at a later date. Registration is not a formality which creates any rights. It is prima facie proof of intention to transfer the title.

It is no proof of operative transfer. Customarily, the sale deed which was registered first has to prevail in the matter of conveyance of title over others. The title under sale deed passes on the date of execution of the sale deed, even if the registration of the sale deed is completed on later date, it must relate back to the date of sale. Therefore, an agreement to sell executed prior to date of attachment of judgment, but registered thereafter, would prevail over such attachment.

Conclusion

Therefore, according to Section 48, the transferer cannot prejudice the rights of the transferee by any subsequent dealing with the property.

By- Kapil Chandna

Practicing Advocate at Supreme Court Of India

Best Bail Lawyer in New Delhi,India

 

Should he send back to custody again?

bail lawyers in delhi best of the best

Should he send back to custody again?

More often than not this question comes to the mind of every person that once a person a granted bail, he cannot be send back to the prison and he can use his freedom the way he wishes. But now a day’s more number of cases for cancellation of bail are coming forward because the accused while taking bail swears to abide by the express terms and conditions if any imposed or even otherwise he has to abide by the implied conditions of the Criminal Jurisprudence but since the accused forget the conditions be it implied or express, which makes the other party to move an application for cancellation of the bail.

But now the question comes that cancellation of bail is as easy as the granting of bail, the answer to the question is big NO as held by Hon’ble Supreme Courts in number of cases and reason for the same that once a bail is granted it should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer to conductive to a fair trail to allow the accused to retain his freedom by enjoying the concession of bail during trail.

Now we see why the accused is required in custody because he should be presumed to be innocent unless proved guilty and that the law works on the principle of bail not jail, but then the question comes that even after applying these principles the court comes to know that the accused is taking law into his hands and interfering the fail trail by tampering with the witness or indulges into some criminal activity, the court has a reason to cancel the bail.

Following are the grounds as laid down by Hon’ble Supreme Court in Abdul Basit Vs. Abdul Kadir Chaudhary, 2014 (4) JCC 2810 held that U/S 439 (2) empowers the High Court to direct any person who has been released on bail under chapter XXXIII of the Code to be arrested and committed to custody, i.e. the power to cancel the bail granted to an accused person:-

1. The accused misuses his liberty by indulging in similar criminal activity.

2. The accused interferes with the course of investigation.

3. The accused attempts to tamper with evidence or witnesses.

4. The accused threatens witnesses or indulges in similar activities which would hamper smooth investigation.

5. The accused is likely to fell to another country, or otherwise avoid the due process of law.

6. The accused attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.

7. The accused attempts to place himself beyond the reach of his surety.

The grounds mentioned are not exhaustive and merely illustrative. Therefore the accused are not to misuse the express as well as implied conditions imposed by the court and should not interfere in the due process of the court.

Kapil Chandna Advocate

Practicing at Supreme Court of India

Read Also : – How to seek bail in false 498A/406 IPC

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