Latest Judgement Of Supreme Court Of India On Bail Not Jail

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Latest Judgement Of Supreme Court Of India On Bail Not Jail

Yes, this is how the principle is enshrined in the constitution of India and Article 21 of the constitution of India enshrines this principle as “Right to Life”. But can we say that this principle is being followed in the courts of law and the accused persons who are languishing under trails in jails on the basis of false allegations and getting the most cherished right of the constitution of India? I feel the answer is NO, because the courts have without going into the correctness of the allegations of case, rather merely dismissing the same by just saying that it is matter of trial and at this stage the same cannot be taken into consideration or just that since the charge sheet has not been filed and therefore it is not the right stage to apply for bail.

Now if we critically analyze the bend of mind of a Judge who is dismissing the bail applications without seeing the gravity of the same if the same person gets acquitted or there is a lack of evidence at the trial stage. The Judge seems to be following the course of action which is easy and not taking any blame on himself. But still, the question comes that are these accused persons getting the most cherished right and if yes then how many.

Perhaps the hard reality is the accused persons cannot except a Bail from lower court in any eventuality and they will have to come to Higher Courts to seek the bail and now the interesting question is when the Higher Courts are giving the Bail on same allegations and same grounds, then what is that stopping them to get the bail at the lower courts. The answer is clear that lower courts lack the gut feeling to take the responsibility to grant the bail despite having the same “Judicial Discretion” which the higher courts have.

Not commenting on any particular case or judge of the lower courts, rather this has become the fashion and we all face this difficulty for the clients. But the factors which the court must keep in mind before granting the bail applications as held by Hon’ble Supreme Court in “Sanjay Chandra vs CBI” speaking through G.S. Singhvi, H.L. Dattu wherein the Hon’ble Supreme Court has given the following factors which must be kept in mind while granting bail and the same factors must be kept in mind by any courts be it lower or higher courts. The factors to be considered as follows:

While granting the bail, the court has to keep in mind:

1 – The nature of accusations, the nature of the evidence in support thereof,

2 – The severity of the punishment which conviction will entail,

3 –  The character, behaviour, means and standing of the accused,

4 – Circumstances which are peculiar to the accused,

5 – A reasonable possibility of securing the presence of the accused at the trial,

6 – Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.

7 – It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.

It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

Custody is not punitive in nature, but preventive, and must be opted only when the charges are serious and prima facie and not otherwise.

Punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court.”

To enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail.

In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:

“The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

The time to be taken in trial and they should not be subject to indefinite custody.

Advocate Kapil Chandna (Practicing in Supreme Court of India)
Advocate.kapilc@gmail.com
9899011450
 

Guidelines for Quashing FIR Supreme Court of India

Criminal law fir in high court

Guidelines for Quashing FIR Supreme Court of India

The essential object of criminal law is to protect society against criminals and law- breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed the punishment for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law as well as the procedural criminal law. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law is to administer the substantive law.

Our legal system’s law of crime is mainly contained in the Code of Criminal Procedure, 1973 which has come into force from April 1, 1974. It provides the machinery for the detection of crime, apprehension of suspected criminals, a collection of evidence, determination of the guilt or innocence of the suspected person and the imposition of suitable punishment on the guilty person. In addition, this Code also deals with the prevention of offences (Sections 106- 124, 129- 132 and 144- 153), maintenance of wives, children and parents (Sections 125- 128) and public nuisances (Sections 133- 143).

The Code also controls and regulates the working of the machinery set up for the investigation and trial of offences. On the one hand it has to give adequately wide powers to make the investigation and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take precautions against errors of judgment and human failures and to provide safeguards against probable abuse of powers by the police or judicial officers. This often involves a “nice balancing of conflicting considerations, a delicate weighing of opposing claims clamouring for recognition and the extremely difficult task of deciding which of them should predominate”.

The Code has obviously tried to make itself exhaustive and complete in every respect; and it has generally succeeded in this attempt. However, if the Court finds that the Code has not made specific provision to meet the exigencies of any situation, the court of law has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require.

The power to quash an FIR (First Information Report) is among the inherent powers of the High Courts of India. Courts possessed this power even before the Criminal Procedure Code (CrPC) was enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of the section 561(A) of the 1898 code. Since high courts could not render justice even in cases in which the illegal was apparent, the section was created as a reminder to the courts that they exist to prevent injustice done by a subordinate court.

In R.P. Kapur v. State of Punjab, the Supreme Court considered the circumstances in which the High Court can, by invoking its inherent powers, quash the criminal proceedings in a subordinate criminal court. The Supreme Court observed:

“It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the al1egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 482 of the Code the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.”

The following cases have been stated by the Supreme Court, by way of illustration wherein the extraordinary power under Article 226 or inherent power under Section 482 can be exercised by the High Court to prevent abuse of process of any court or to secure justice, while quashing the FIR :

1 – Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused.

2 – Where the allegations in the FIR or other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an Order of a Magistrate within the purview of Section 155(2).

3 – Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence.

4 – Where the allegations in the FIR or other materials do not constitute a cognizable offence but constitute a non- cognizable offence to which no investigation is permitted by the police without Order of a Magistrate under Section 155(2).

5 – Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6 – Where there is an express legal bar engrafted in any of the provisions of the Code or statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party.

7 –  Where a criminal proceeding is manifestly attended with mala fide intention and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused with a view to spite him due to private and personal vengeance.

Grounds above-mentioned are merely illustrative and not exhaustive and each case must be decided on its own facts and circumstances.

Kapil Chandna Advocate
Supreme Court of India
9899011450, 9911218741

Supreme Court on Granting Bail

Some Supreme Court Judgements For Granting Bail

Some Supreme Court Judgements For Granting Bail

(a) While granting bail the Court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of granting of bail.

(c) While it is not acceptable to have the entire evidence establishing the guilt of the accused beyond a reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 

1 – Vaman Narain Ghiya v. the State Of Rajasthan, Hon’ble Supreme Court has held that:-

Balance to be maintained between the personal liberty of the accused and the investigation right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt. 

Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigation right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.

Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

A detailed discussion of the evidence and elaborate documentation of the merits is to be avoided while considering an application for bail-

While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan Singh and Anr. v. Prabhakar Rajram Kharote and Ors). Where the offence is of serious nature the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. (See State of Maharashtra v. Anand Chaintaman Dighe AIR 1990 SC 625 and State v. Surendranath Mohanty 1990 (3) OCR 462).

2 – Sukhwant Singh and Others v.  State Of Punjab, it was held that:-

Reputation of a person is his valuable asset and is a facet of his right under Article 21- Granting of  bail pending regular bail application Following the decision of this Court in the case of Kamlendra Pratap Singh Vs. State of U.P. and Others [(2009) 4 SCC 437], we reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. In our opinion, this is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person.
The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution.

When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra and Another [(2008) 16 SCC 14]. Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there. 

3 – State of U.P. Through C.B.I v. Amarmani Tripathi

Factors to be considered while granting bail:  It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge;(iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (See Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

Scope of interference in the matters of bail – Art 136 The general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court.

4 – Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another

Person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation.

Findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier.

The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country.In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

Subsequent bail application – Allowed, if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. 

The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application.

Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country.

5 –  Akhtari Bi (Smt.) v. State Of M.P.

Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail .

To have speedy justice is a fundamental right which flows from Article 21 of the Constitution.

Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court’s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.

We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court.

Kapil Chandna Advocate

Practicing at Supreme Court of India

9899011450, 9911218741
Advocate.kapilc@gmail.com

Guide For Child Custody Laws In India Before Divorce

Guide For Child Custody Laws In India Before Divorce

Guide For Child Custody Laws In India Before Divorce

Introduction

Going through a divorce settlement is not easy. With an ongoing maintenance suit coupled with other allegations, it gets severely difficult. The excruciating aftermath of a divorce settlement often involves the battle for the physical custody of the child.

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. As the conditions or direct rule has not been established by statutory provisions in India, it depends on the court’s discretion to grant child’s custody to either of the parents.

Courts while deciding so, consider mainly three aspects before deciding on the former.

1 – A parent who demonstrates the most financial security

2 – Adequate parenting skills

3 – Least disruption for the child.

The court seeks for the benefit of the child rather than the proof by either of the parents. A great shift in the court’s approach has been seen while considering such cases and that has been to look deeply into the child’s benefits. In Hindu Law or secular GWA Act, the court considers the decision of a child who is 9 years or older. This approach has been taken keeping in mind the welfare of the child, such as medical treatments, religious practices, and insurance claims.

Under Hindu Law:

All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA) (secular law). The English and Indian decisions have a few statements in common which are

 (i) the children of tender years should be committed to the custody of the mother

 (ii) older boys should be in the custody of the father

(iii) older girls in the custody of the mother.

As to the children of tender years, it is now a firmly established practice that mother should have their custody since father cannot provide that maternal affection which is essential for their proper growth.

Under Muslim Law:

The mother directly without a doubt gets the custody of the child. However, if it is proved that she is mentally or physically incapable or has any other incapability to keep the child.

How must a father get the custody?

A divorce is as agonizing to the father just as it is to the mother. However, the reality cannot be denied that Indian courts have a soft side for women in such matters. Hence, the mother is generally awarded the custody.

For a father to obtain custody is to prove the mother is unfit. There are different guidelines in each state. Examples such as being a drug user, or alcoholic, mental illness, being abusive to the child are certain points used in the courts. Moreover, one can also claim that the mother is not able to provide a proper home or adequate care, in that case, the court may ask the father to pay extra maintenance. In
In Jasmeet Kaur Talwar & Anr. v. Gurjit Singh Talwar, Delhi High Court 2014, the court interpreted the meaning of “reasonable expenditure” for marriage and directed the husband to re-pay an amount of Rs. 37 lakhs to the wife in lieu of the marriage expenses incurred by her family.

One more way a father can gain custody would be trying to establish temporary custody first. Before the application for custody is filed in the court, if the mother moves out of the primary residence without the children, it acts as a strong point. One should note that stability in the home is what is most often looked at when the courts are trying to decide where the children should go.

In Aviral Mittal v. State NCT & Anr, the court directed the wife to join, with the child, custody proceedings before a court in the UK. However, In Anand Raghavan v. State of Delhi & And., decided by the Delhi High Court in 2016, the husband convinced the court to repatriate a six-year-old child back to the UK after the mother had brought her to India following a marital dispute.

There are many such case references such as Etiappa Mudaliar V. T Subramaniam, In the absence of strong positive proof of father suffering any disqualification, he remains fit and proper person to have the custody of the child. Maternal grandparents directed to handover the custody of the minor to the father. In Yudhistir Mohanand V. Dalimba Mohanand, a famous case judgment by the Orissa High Court, the wife filed a petition for restoration of a child below 5 years of age to her, alleging she has driven away from matrimonial home and child was snatched from her. A search warrant was issued. The child was in the custody of the father for the last more than six months. Father was determined to be the natural guardian, confinement does not amount to offense and search warrant was recalled. The Supreme Court, in Vivek Singh V. Romani Singh, decided the custody matter on basis of parental alienation syndrome. In Sharli Sunitha V. D. Balson, the Madras High Court stated that the mother is not always the right person for custody and consequently granted the custody of the minor girls to the father.

What precautions must be taken by the father?

Abuse Charges and Restraining Orders

The most common route taken by women is an abuse charge weakening the case further. If any angry, violent or ensuing arguments take place, it shall result in a restraining order which shall further restrict the father to gain custody of the child. In some cases, such fathers lose their visitation rights too. One should always be calm during such circumstances to avoid such restraining orders.

Fighting for a child not fighting against the spouse

The first and initial mantra should not be to fight the opposite party but to fight for the child custody. Often such proceedings leave such men/fathers vulnerable and frustrated.

Maintaining the father-child relationship

It is not only the husband and wife who are affected due to a divorce. The child becomes a major sufferer in the feud too. Fathers need to make sure their children feel that they are interested in maintaining the contact. The main issue is to keep the spirit in implementing the visitation rights, in effect to child’s mental growth. In India where fathers do not usually convey emotional requirements to their child, it is necessary for them to communicate sensibly to their child about what’s going on and how they still care for their child.