CASE LAW ROUND UP

In this case, a Public Interest Litigation (PIL) was filed by the National Alliance for People’s Movement challenging the categorisation of prisoners eligible for release on interim bail on account of spread of the COVID-19 pandemic in prisons by the High-Powered Committee (HPC) in Maharashtra. The HPC had categorised inmates into three categories – undertrial prisoners/prisoners facing a maximum punishment of 7 years or less, inmates undergoing a sentence above 7 years, and undertrial prisoners/prisoners convicted of serious economic offences and offences under Special Acts such as the Narcotic Drugs & Psychotropic Substances Act (NDPS Act), Unlawful Activities (Prevention) Act, 1967 (UAPA) etc. The petitioners contended that these categorisations were unreasonable and that the decision to temporarily release prisoners must be considered on a case-by-case basis. Further, they argued that prisoners convicted of life sentences must also be eligible for release without insisting that they would only become eligible if they had been released in the past or at least twice on furlough or parole.

The bail applicant in this case was accused of coercing a minor into having sexual intercourse with him by threatening to publicize her private pictures taken without her consent. The applicant contended that he was eligible for release on bail since the investigation was complete and the charge sheet had been filed. However, the prosecution submitted that the framing of charges would trigger the application of Section 29 of the Protection of Children from Sexual Offences Act (POCSO Act), and the court must presume the applicant to be guilty of the offence and deny bail, until proven otherwise.

The Court had to determine the appropriateness of classification of of inmates by a High-Powered Committee in Maharashtra as per which they would be granted interim bail in an attempt to decongest after the spread of the COVID-19 pandemic

The Supreme Court held that the categorisation by the HPC cannot be termed unreasonable as the exclusion of certain categories of prisoners who were charged with serious offences was done with a view to prevent adverse effects on society at large. Further, prisoners serving a jail term of more than 7 years were not precluded from seeking ordinary bail in accordance with the law. The Court emphasised that the need to claim such interim relief arose due to the unprecedented circumstance of the COVID-19 pandemic and that the consideration for interim bail was not in the nature of a statutory right to bail based on legal considerations but in the nature of human right to safeguard health and decongest prisons. It observed that the pandemic could not be treated as a fortuitous situation to secure bail which would be otherwise prevented by the law. The Court clarified that if the release of the presently eligible categories of prisoners and the setting up of additional prisons do not achieve the purpose of reducing overcrowding in prisons, it would be possible for the HPC to modify the guidelines for the release of prisoners.

This case discusses the issue of default bail and the extension of maximum period for filing of chargesheet in UAPA cases.

The accused in the present case was remanded to custody by a Sub-Divisional Magistrate. After 90 days, an application for default bail was made by him but was dismissed. The question before the Court was whether the magistrate had the authority to extend the maximum period for investigation under the UAPA Act and whether the right to default bail would be extinguished upon the filing of the charge sheet, if an application for such bail was submitted but not decided.

The Supreme Court held that the right to default bail is not merely a statutory right under Section 167(2) of the Code of Criminal Procedure but is a part of the procedure established by law under the fundamental right to life and personal liberty guaranteed by Article 21 of the Constitution. The Court opined that so long as an application for default bail is made on the expiry of the period of the 90-day period, which need not be in writing before the charge sheet is filed, the right to default bail becomes an indefeasible right of the accused under Section 167(2). Further, the magistrate has no power to grant an extension on the maximum period for filing of chargesheet, the power for which vests only in either the Sessions Court or the Special Court so designated. On the question of which court was competent to try the case, the Court held that in the absence of any designated Court being specified through a notification issued by the Central or State government, it would be the Court of Sessions alone that can try the matter.

This case discusses the right to default bail.

The appellant in this case was arrested and remanded to judicial custody for allegedly committing an offence punishable under the Narcotic Drugs & Psychotropic Substances Act (NDPS Act). Upon the completion of the 180-day remand period, the appellant was granted bail by the trial court on the ground that the charge sheet had not been filed within the period prescribed under the law. This order of the trial court granting bail was set aside by the High Court on the ground that an additional complaint had been lodged against the accused during the course of the bail application, and before the court could hear the matter. The matter came up to the Supreme Court on appeal.

The Supreme Court held that the indefeasible right to default bail is exercised on the submission of the application to the court. The Court held that the right cannot be defeated by submitting the chargesheet before the application is disposed of or before the accused has furnished the bail bond, or by requesting an extension after such application has been made. In addition, the Court impressed upon the need for the counsel for the accused and the magistrate to inform the accused of the availability of this right once it accrues to them. The Court emphasised that in matters of default bail, the courts must not adopt a rigid or formalistic approach as the safeguard of default bail is intrinsically linked to an accused person’s fundamental right to life and personal liberty under Article 21 of the Constitution. The Court opined that the intent of the legislature was to balance the need for prescribing sufficient time limits to complete investigation with the need to protect the civil liberties of an accused person.

This case is on the question whether protection under Sec. 436-A of the CrPC is available during appeal.

The petitioner in this case was convicted for various offences under the Indian Penal Code (IPC) and sentenced to terms of imprisonment ranging from three to ten years. During the pendency of the appeal , the petitioner sought the suspension of his sentences and release on bail. This application was rejected by the High Court. On appeal to the Supreme Court, the petitioner contended that he was eligible for release under a liberal interpretation of Section 436A of the Code of Criminal Procedure which lays down the maximum period for which an undertrial prisoner can be detained. The State argued that this provision had no application in the present case.

The petitioner’s plea that an appeal is an extension of the trial was rejected. The Court analysed Section 436A of the Code of Criminal Procedure in detail and held that the benefit of such a provision can only be extended to an undertrial prisoner and not a convicted prisoner. As per this provision, only persons who had undergone detention for a period greater than one half or more of their maximum prescribed punishment during “investigation, inquiry or trial” were eligible for release without a personal bond or sureties.

The present petition had been filed challenging the grant of default bail under Section 167(2) of Cr.P.C. to a person accused of offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), without hearing the informant under Section 439(1)(A) Cr.P.C

The Kerala High Court held that the right of an accused to seek bail under Section 167(2) accrues upon the default of the IO in concluding the investigation within the requisite time. This right under 167(2) is an indefeasible right unlike Sections 437, 438 and 439 where grant of bail is a matter of judicial discretion. The Court also held that the mandate of hearing the victim/informant, as provided under Section 439(1)(A) Cr.P.C. is not meant for bail application under Section 167(2) and Court hearing the victim in case of default bail will only be a mere formality.
In the course of the proceedings, the Court also observed that in several documents and pleadings produced before the High Court, the identity of the victim had been disclosed either directly or indirectly. The Court noted that there is no system in place to maintain victim anonymity in POCSO cases. According to the Court, there was no procedure to ensure the disposal of documents produced in sealed covers after final disposal of the case and it was found that the registry had been insisting on copies of documents that reveal the identity of the victims. In this regard, the Court issued guidelines to be followed to maintain victim anonymity. The key points are as follows:
In determining the identity of the victim, the criteria that can be used shall include the entity of the family of the victim, the school/college of the victim, the place of work of the victim, the relatives of the victim, the neighbourhood of the victim etc.
In all proceedings instituted by or on behalf the of victim, the documents in which the identity of the victim is disclosed shall be filed in sealed covers.
The registry shall designate an officer for the proper custody of these sealed covers and provide the officer the necessary infrastructure required for keeping safe custody of these documents. Such an officer shall be bound by the highest standards of confidentiality.
The registry shall forward these sealed documents in a self-sealing envelope/bag of the appropriate size, preferably having a tamper proof seal and after affixing specific details and signatures on it.
If these sealed documents are opened by the court for perusal during the trial, after the procedure, they shall once again be freshly sealed and labelled.
The parties producing documents disclosing the identity of the victims need not have to keep or give copies of the same to the opposite parties.
Lawyers appearing against the victims in the case shall be allowed to peruse the sealed cover documents only with the permission of the court and in a manner that follows the aforementioned guidelines.

Section 43D(5) of the Unlawful Activities Prevention Act, 1967 (‘UAPA’), requiring courts to deny bail when reasonable grounds exist for the belief that the suspect is guilty.

The Court held that the limitations on granting bail under Section 43D(5) do not oust constitutional courts’ ability to grant bail in case of fundamental rights violations. Upon coming to this conclusion, the bench opined that statutory provisions against the grant of bail would not apply when there is no likelihood of the trial being completed within a reasonable time and where the respondent has already undergone incarceration for a period exceeding a substantial part of the prescribed sentence. [Para 18] Hence, although Section 43D(5) allows courts to refuse bail, a balance must be struck between protecting the appellant’s right to lead evidence and prove the charges beyond any reasonable doubt and the respondent’s rights under Part III. [Page 12]

The Court’s holding in Najeeb is a concession that the practice of bail under UAPA’s provisions may operate in a way that impermissibly infringes the accused’s fundamental rights. Thus, while the decision in Najeeb takes a welcome step by allowing constitutional courts to enforce fundamental rights by ignoring the statutory provisions – it leaves one wondering what that means for the constitutionality of the statutory provision itself, and why non-constitutional courts are constrained by these provisions despite them admittedly producing unconstitutional outcomes.

Section 12 of the Juvenile Justice (Care and Protection of Children) Act (‘JJ Act’) stipulating the conditions under which a juvenile offender can be granted or denied bail.

The Court held that the lower courts did not satisfy the conditions stipulated under Section 12(1) of the JJ Act as there were no reasonable grounds for the lower court’s belief that the juvenile would come in contact with known criminals or some other moral, physical or psychological danger that would defeat the ends of justice. [Para 8] The Court opined that the JJ Act contemplated granting bail to the child in conflict with the law irrespective of the gravity of the offence alleged – and the decision to deny bail has to be based on the circumstances revealed in the social investigation report. The social investigation report is aimed at understanding the child’s circumstances, living conditions, and other factors that could have contributed to the offence. A thorough assessment of the report is not meant to discover evidence regarding the alleged offence, but for courts to scrutinise a juvenile’s emotional, physical, socioeconomic circumstances, including information received from neighbours, family members and probation/child welfare officers regarding the rehabilitation of the child [Paras 15-16].

The decision marks a progressive step towards mandating evidence-based assessment of bail decisions in cases involving children in conflict with the law. However, the severe shortage of Probation Officers in juvenile homes, the meagre pay given to them, and the strain from heavy caseload are very real infrastructural problems that plague the rehabilitation ideals of juvenile homes.

Guidelines on gender sensitivity in bail decisions in cases of sexual violence.

The appeal stemmed from an order of the Madhya Pradesh HC granting bail to an accused of sexual harassment on the condition, inter alia, that he would request the victim to tie a rakhi on his wrist.

Terming the High Court’s order as “wholly unacceptable,” the Supreme Court rejected the use of reasoning trivialising the trauma of the survivor or using gender stereotypes while deciding cases of sexual violence. [Paras. 33, 42, 45] In doing so, the Court issued several guidelines for imposing bail conditions. The guidelines require courts to protect survivors from being contacted or harassed by the accused, immediately inform the survivor of the grant of bail to the accused, and avoid reflecting patriarchal notions about women in bail conditions. While setting aside the impugned order, the Court held that under no circumstances can courts entertain compromises or mediation between the accused and the survivor or rely on stereotypical language about women. [Paras. 44-45]. Importantly, the Court recognised the need to train members of the profession, including judges, in gender sensitivity – and directed BCI and the National Judicial Academy to take requisite steps.

Even though the decision in Aparna Bhat is an isolated instance of institutional self-critique, it is a welcome step towards a more progressive and sensitised judiciary, especially if the gender sensitisation programmes become a matter of reality in judicial academies and universities. University curriculum have courses on feminist legal thought only as electives, if at all. And this has remained true despite continued evidence of influence of ‘rape myths’ and other stereotypes in judicial decision-making in cases of sexual assault and rape, as argued recently by Tarika Jain and Shreya Tripathy for the P39A Criminal Law Blog.

Temporary protection from coercive action to an accused in an order rejecting their anticipatory bail application.

The Court noted that the only guidance provided for a case where an application for anticipatory bail is rejected is in the proviso to Section 438(1), CrPC per which it is open to the police to arrest the applicant. [Para 19] However, noting that the interpretation of Section 438 implicates an accused’s Article 21 rights, the Court held that it cannot be interpreted to place limits on the High Courts’ inherent powers under Section 482 CrPC [Para 20, 21] The Court held that there may be exceptional circumstances – such as the accused being the primary caregiver or breadwinner of their families and needing to make arrangements for their care – where High Courts can grant protection to the accused from arrest for a specific period despite rejecting the application for anticipatory bail. [Para 24] The Court observed that an order exercising such discretionary power must be reasoned and narrowly tailored to account for the interests of the accused and the concerns of the investigating authority. [Para 25]

The ratio of the case seems to be progressive in locating the power to limit coercive action in Section 482, CrPC, thus allowing High Courts to go beyond Section 438, CrPC. However, it is notable that the Court ultimately rejected relief on grounds that the relief granted by the High Court for 90 days was too long, and no independent analysis was made under the Supreme Court’s own inherent powers to consider whether a similar relief for a shorter duration may be granted. Our concern with locating this limitation on coercive action as an exercise of inherent jurisdiction, as opposed to reading it as an anticipatory bail relief granted for a limited period, is precisely the nebulous boundaries of ‘inherent powers’ and the often unguided way in which they are (or are not) exercised. Further, while anticipatory bail may be granted by both the Sessions and the High Courts, freedom granted in exercise of inherent jurisdiction cannot be granted by Sessions Courts at all.

Grant of bail under Section 12 of the Juvenile Juvenile Justice Act, 2015 (JJ Act) to a child in conflict with the law (CICL) over 16 years of age.

The Court referred to the Supreme Court’s directions in Re: Contagion of COVID 19 Virus in Children’s Homes (2020) 15 SCC 280 regarding the release of children from Observation Home, subject to the risk of exposure to psychological/moral/physical danger as provided under Section 12, JJ Act. The Court clarified that the distinction between CICLs below and above the age of 16 years is only provided with respect to inquiry by the Juvenile Justice Board or trial by the Children’s Court under Sections 15 and 18(3) of the JJ Act, and that there is no such distinction when it comes to grant of bail under Section 12 of the Act. [Para 13] Thus, age is an irrelevant factor in the decision of release.

The COVID-19 pandemic has only highlighted the existing vulnerability of children in conflict with the law, particularly of those above the age of 16 years who the law denies the right to be read as a ‘child’. Even as the trial processes themselves treat these children as ‘adults’, it is imperative that their bail decisions be determined by the relaxed standards laid down in the JJ Act to prevent victimisation of the undertrial CICL and to also protect them from the recidivism encouraged by prolonged life in incarceral settings.

Interpretation of the 90 day remand period under Section 167, CrPC.

Court held that at the time of remand under Section 167, the Magistrate is duty bound not to order further detention if the requirements of arrest under Section 41 CrPC are not met [Para 103]. The Court further held that a writ of habeas corpus can lie against an order of remand under Section 167 only if the order is absolutely illegal, afflicted with lack of jurisdiction, or passed in an absolutely mechanical manner. [Para 63] In addition, it was held that superior courts can also exercise remand powers; and the broken periods of custody would cumulatively be considered towards the statutory period of 90 days after which the accused becomes entitled to default bail [Para 67]. Needless to say, actual detention undergone will be counted towards this period even if the order leading to that remand was itself held to be defective [Para 90]. At the stage that the Magistrate is considering the remand report under Section 167, the accused can file an application for bail before the Court of Sessions or High Court under Section 439 even though an application under Section 397 does not lie against the remand. [Para 60] The Court also commented on transit remand, holding that such remand is like police custody under Section 167 and also would be counted towards the statutory period. [Paras 76, 78] As for house arrests, the Court held that it is a form of custody and may be ordered as such under Section 167, CrPC [Para 138-139]. However, the Court held that the High Court had not intended to pass the order of house arrest as an order of custody; rather, it was passed as a softer alternative to ‘actual incarceration’. Since this was the case, in the present facts, the order of house arrest was not one of remand passed under Section 167, CrPC and will therefore not count towards the statutory period [Paras 134, 136].

The decision, while acknowledging the general custodial nature of house arrests, has carved out an exception for cases where the Courts passing the arrest order did not intend for the order to be one of custody, and instead intended it as a softer alternative to incarceration. It is arguable that, in all cases, an order for house arrest is a softer alternative to ‘incarceration’ as traditionally understood. Nevertheless, that should not change its fundamental character as an order of custody. This underlying doctrinal confusion comes out in the order of the Bombay High Court granting bail to Sudha Bhardwaj where, again, the period of house arrest was excluded from the computation of the period under Section 167 by relying on the ruling in Gautam Navlakha. By basing its decision on the ‘intention’ of the judges passing the order, and not the order itself, the Court seems to have gone beyond the realm of adjudication.

Whether anticipatory bail applications under Section 438 of the CrPC are maintainable in cases under the Juvenile Justice Act, 2015 (‘JJ Act’)?

The Court held that the ‘apprehension’ of a child in conflict with the law as provided for in Section of the JJ Act is at par with the ‘arrest’ of a person as provided for under CrPC. Further, the language of Section 12 of the JJ Act, which makes provision for granting bail to children in conflict with the law, does not bar the child’s right to seek anticipatory bail. [Para 13] The objective of the JJ Act was to benefit children, and it cannot be used to curtail their liberties [Para 16]. Thus, the applicant’s anticipatory bail application was considered maintainable. [Para 20]

Section 438, CrPC provides for anticipatory bail where ‘any person has reason to believe that he may be arrested’. Section 12 of the JJ Act, 2015 only provides for ‘apprehension’ of the child in conflict with the law, not their ‘arrest’. The Gujarat HC pierced through these semantics and looked at the crux of the matter – liberty – and held that arrest and apprehension are at par. This interpretation, however, did not find favour with two Punjab and Haryana and Telangana High Courts decisions passed in 2021. They, absurdly, hold that such an anticipatory bail application is not maintainable since an accused under the JJ Act, 2015 cannot apprehend ‘arrest’ at all, highlighting the need for a final resolution of this issue by the Supreme Court.

Whether a request made by the Investigating Officer (‘IO’) may substitute the Public Prosecutor’s report required to extend the detention period of the accused beyond 90 days under Section 43D(2)(b) of the Unlawful Activities (Prevention) Act (‘UAPA’)?

The Court examined Section 43D(2)(b) in consonance with the Supreme Court’s decision in State of Maharashtra v. Surendra Pundlik Gadling to conclude that the status of a Public Prosecutor was that of an independent statutory authority and not as a part of the investigating agency. [Para 7] The mandate of a Prosecutor requires them to scrutinize the reasons given by the IO for extending the detention period and check the IO’s discretion [Para 8], and thus the IO’s request cannot substitute the requirement of the Prosecutor’s report.

A prosecutor is supposed to act, not as a partisan representative, but as an independent officer of court, and has therefore been designated under Section 43D(2)(b). However, prosecutors themselves often conflate these in an adversarial system – and there is rising concern of the dwindling independence of prosecutors from the investigating authorities, diminishing the safeguard in Section 43D(2)(b).

Accused’s right to release on default bail under Section 167(2), CrPC.

The Court held that, where the maximum period for investigation (60 or 90 days) under Section 167(2) elapses without filing of a chargesheet, the accused acquires an indefeasible fundamental right to default bail. [Para 18 – 21] Further, the relevant Court is required to apprise the accused of this right on the 60th and 90th days of custody. Relying on the Supreme Court’s decision in Rakesh Paul, where an oral application was considered to constitute ‘availing’ the right to be released on default bail, the Court held that even an email asking for a bail hearing will be considered to be sufficient exercise of this right [Para 27]. In this case, the email was sent on the same day as the filing of the chargesheet. However, since the Status Report did not contain the time of filing the chargesheet, it could not be decided whether the email was received before the chargesheet was filed. [Para 30] However, the Court considered it a mere procedural technicality and upheld the accused’s right to be released on default bail. [Para 33,34]

In a welcome trend, recent jurisprudence has focused on moving the law of default bail away from procedural technicalities towards a framework that respects the linkages between the provision for default bail and the accused’s right of personal liberty under Article 21 of the Constitution. The stress on removing procedural hurdles put by decisions like Rakesh Paul and Abhishek needs to be replicated across cases. In particular, the recent order of the Bombay HC granting bail to Sudha Bhardwaj while denying it to other co-accused persons raises questions on the requirement that the accused ‘avail’, orally or in writing, of their ‘indefeasible’ right to be released (see here).

Simultaneous filing of charge sheet and application for default bail.

The court held that it is a misconception that time is a deciding factor for the grant of default bail if the bail application and the charge-sheet are filed on the same day. The right to file for default bail is accrued to the petitioner after the expiration of the investigation period, i.e. on the 181st day. However, the charge-sheet has to be filed before the expiration of the 180-day period. [Para 15 – 17] Thus, even if the charge-sheet is filed before the bail application on the day the right is accrued to the accused, the bail application can be admitted. However, if the charge-sheet is filed subsequent to the accrual of the right, which was not exercised by the accused, then the bail application would not be heard. [Para 18] The date of expiry of the period in Section 167(2) had been a court holiday in this case, and the prosecution had relied on Section 10 of the General Clauses Act to argue that an action done on the next working day is deemed to be an action done on the day itself. The Court ruled that the General Clauses Act would not apply to the investigating agencies for filing charge-sheets, and the extension of remand can only be done in accordance with Section 167(2) C.r.P.C. [Para 35,38]

This ruling clarifies an important and controversial point of law with respect to default bail under Section 167(2). Various rulings by different fora before have come to the opposite conclusion – that, in case of simultaneous filing, it would be the chargesheet that would prevail. There is a need for an Apex Court ruling to bring consistency into this aspect of the law, in a way that is compatible with personal liberty.

In this case, a Public Interest Litigation (PIL) was filed by the National Alliance for People’s Movement challenging the categorisation of prisoners eligible for release on interim bail on account of spread of the COVID-19 pandemic in prisons by the High-Powered Committee (HPC) in Maharashtra. The HPC had categorised inmates into three categories – undertrial prisoners/prisoners facing a maximum punishment of 7 years or less, inmates undergoing a sentence above 7 years, and undertrial prisoners/prisoners convicted of serious economic offences and offences under Special Acts such as the Narcotic Drugs & Psychotropic Substances Act (NDPS Act), Unlawful Activities (Prevention) Act, 1967 (UAPA) etc. The petitioners contended that these categorisations were unreasonable and that the decision to temporarily release prisoners must be considered on a case-by-case basis. Further, they argued that prisoners convicted of life sentences must also be eligible for release without insisting that they would only become eligible if they had been released in the past or at least twice on furlough or parole.

The bail applicant in this case was accused of coercing a minor into having sexual intercourse with him by threatening to publicize her private pictures taken without her consent. The applicant contended that he was eligible for release on bail since the investigation was complete and the charge sheet had been filed. However, the prosecution submitted that the framing of charges would trigger the application of Section 29 of the Protection of Children from Sexual Offences Act (POCSO Act), and the court must presume the applicant to be guilty of the offence and deny bail, until proven otherwise.

The Court had to determine the appropriateness of classification of of inmates by a High-Powered Committee in Maharashtra as per which they would be granted interim bail in an attempt to decongest after the spread of the COVID-19 pandemic

The Supreme Court held that the categorisation by the HPC cannot be termed unreasonable as the exclusion of certain categories of prisoners who were charged with serious offences was done with a view to prevent adverse effects on society at large. Further, prisoners serving a jail term of more than 7 years were not precluded from seeking ordinary bail in accordance with the law. The Court emphasised that the need to claim such interim relief arose due to the unprecedented circumstance of the COVID-19 pandemic and that the consideration for interim bail was not in the nature of a statutory right to bail based on legal considerations but in the nature of human right to safeguard health and decongest prisons. It observed that the pandemic could not be treated as a fortuitous situation to secure bail which would be otherwise prevented by the law. The Court clarified that if the release of the presently eligible categories of prisoners and the setting up of additional prisons do not achieve the purpose of reducing overcrowding in prisons, it would be possible for the HPC to modify the guidelines for the release of prisoners.

This case focuses on the emergency release of prisoners sentenced to long imprisonment terms under the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959.

The petitioners in this case were convicted of various offences under the Indian Penal Code (IPC) and were sentenced to life imprisonment along with six additional years. While appealing their conviction, one of the accused appellants died while in jail. The petitioners then sought to be released on emergency parole on account of the spread of the pandemic within the prisons in Maharashtra. However, their applications were rejected.

The Bombay High Court acknowledged that the object of granting emergency parole under the amended Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 was s to reduce overcrowding in prisons. However, it held that habitual offenders or prisoners who are likely to abscond could not be granted emergency parole. The Court then clarified that the amended Rules, which laid down that if such convicts were never previously released on parole or furlough two times, then there could be no occasion for them to return within the prescribed time limit. Therefore, they could not be considered for emergency parole. The Court opined that the condition imposed by the amended Rules would not apply in such cases.

This case concerned an application filed by an accused implicated in three criminal cases, seeking a transfer of the three cases from the court of the Additional Judicial Magistrate in Gurugram to any competent court in New Delhi on grounds of lack of territorial jurisdiction and apprehension of bias.

The Court had to decide the eligibility of certain criminal cases to be transferred from one jurisdiction to another.

The Court held that in ascertaining the territorial jurisdiction i. place of commission of crime or (ii) place where the consequence of an act, both of which constitute an offence, ensues or (iii) place where the accused was found or (iv) place where the victim was found or (v) place where the property in respect of which the offence was committed, was found or (vi) place where the property forming the subject-matter of an offence was required to be returned or accounted for, etc. are considered. Sections 177 to 184 of the Code of Criminal Procedure deal with rules pertaining to determination of jurisdiction. The Court dismissed the petition, holding that both parties must submit facts established by evidence which may relate to the place of commission of the offence or rules under Section 177 to 184 only after which a decision pertaining to transfer could be made.

Over the course of the hearing, the Court opined that there seemed to be incongruity between Sections 461(1) and 462 of the Code of Criminal Procedure. Clause 1 of Section 461 provides that if a Magistrate not being empowered by law to try an offender, erroneously tries him, such an irregularity shall vitiate the proceedings. On the other hand, Section 462 lays down that no finding, sentence or order of any Criminal Court shall be set aside merely on the grounds of the proceedings having taken place in the wrong court, unless such an error has in fact occasioned a failure of justice. On a cursory reading of the rules relating to territorial jurisdiction contained in Code, one finds that in some cases, the Court’s jurisdiction is determined based on the offence and in other cases it is determined by the offender. In this case, the Court observed that the focus of Section 461(1) is on the offender and not the offence, and thus, a proceeding which is void under Section 461 cannot be saved by Section 462 of the Code. The Court opined that the words “tries an offence” are more appropriate than “tries and offender” in Section 461(1), since a lack of jurisdiction to try an offence cannot be cured by Section 462. Therefore, Section 461 could have logically included the trial of an “offence” by a Magistrate not empowered by law to do so, as one of the vitiating elements.

The case pertains to the application of Section 482 of the Code of Criminal Procedure to set aside the order of a judicial magistrate in a case under the Protection of Women from Domestic Violence Act, 2005.

The petitioner in this case was separated from her 3 daughters subsequent to a rift in her relationship with the respondent. In this regard, the petitioner sought various reliefs under the Protection of Women from Domestic Violence Act, 2005 (DV Act), particularly under Sections 18 and 21 of the Act, namely, for the grant of protection order and custody orders respectively. However, the Metropolitan Magistrate had directed that the custody of the children would continue to remain with the respondent as an interim measure with the petitioner being granted visitation rights. The petitioner challenged the said order in the High Court under Section 482 of the Code of Criminal Procedure to set aside the same.

The Delhi High Court held that the conferment of a statutory appeal under Section 29 of the DV Act against all orders, including custody orders, precluded the petitioner from resorting to Section 482 of the Code of Criminal Procedure which is an extraordinary remedy. While dismissing the petition, the Court held that in order to invoke the extraordinary powers of the High Court, the petitioner must first be able to show why the appellate court, by way of statutory appeal, is incapable of or incompetent to exercise jurisdiction in matters of temporary custody, both in law and facts.

Compliance by police officers and Magistrates with Section 41A of CrPC.

The Allahabad High Court directed Magistrates to report non-compliant police officers who make mechanical arrests to the Registrar, High Court. [Paras. 9-10] It directed the police to follow the directions in Social Action Forum for Manav Adhikar v. Union of India and Arnesh Kumar v. State of Bihar (2014) 8 SCC 469 on the law of arrest. [Paras. 14, 16] The State Governments were directed to give police officers a checklist of the specific sub-clauses under Section 41(1)(b)(ii) of the CrPC, and police officers were required to fill the check-list and forward it to the Magistrate while producing the accused. It was also held that notice to the accused under Section 41A shall be served within 2 weeks of institution of the case and if extended must be accompanied by reasons in writing by the SP. [Para 11]

The Allahabad High Court’s decision, coming in a case involving arrests under Section 498A, IPC, is aimed at stemming the mechanical arrests that characterise criminal investigations and is a question of procedural compliance with CrPC provisions. However, the Court’s reference to the guidelines in Arnesh Kumar must be cautiously approached. The Supreme Court in Arnesh Kumar conflated the procedural problem of mechanical arrests with patriarchal assumptions about the ‘misuse’ of the substantive provision of Section 498A – a part of Arnesh Kumar’s legacy that is best separated from its arrest guidelines.

Production of CCTV footage of police stations in cases where compliance to procedures of arrest and detention is challenged.

The Court reiterated the holding in Paramvir Singh Saini v. Baljit Singh [(2021) 1 SCC 184] that CCTV footage from police stations is of utmost importance. However, for maintaining the secrecy of investigations, the Court held that such footage can be asked to be produced only upon the making of specific allegations and showing of prima facie material indicating use of force resulting in serious injury/custodial torture. Dismissing the case, the Court held that such material had not been produced.

The Court, even while reiterating the decision in Paramvir Singh, has only served to dilute it by imposing the initial burden of proof for showing custodial violations on the person in custody. The problems with proving illegalities in custody are well-documented in previous Law Commission Reports and do not bear repetition – and are, in fact, why the Court in Paramvir stressed on the importance of CCTV installations in police stations. Subjecting the production of this footage to prior proof by the detainee misunderstands the very purpose underlying the directions in Paramvir.

Furnishing of biometrics and password by accused to investigating authorities.

The Court held that an accused cannot be constrained to cooperate with investigating authorities by being made to furnish private data such as passwords/biometrics, without a search warrant issued in accordance with search and seizure provisions of CrPC. [Para. 18.1] Upon the issuance of a warrant by the Court, however, the police is allowed to hire specialised agencies to crack into the electronic device, in the event of the accused’s continued non-cooperation. [Para 16.5] The Court further clarified that furnishing such private information will not amount to ‘giving testimony’ for the purposes of Article 20(3) of the Constitution, comparing it to giving a thumbprint impression. The Court further held that accessing such data by the investigation authorities is itself a permissible infringement of the accused’s right to privacy – however, disclosing it to third parties without written authorization of the court would violate accused’s right to privacy, and would make the concerned official liable for dereliction of duty. [Para 15].

The decision in Virendra Khanna has reduced the protection of the zone of privacy in our electronic devices into one governed, not by constitutional standards, but by the search and seizure provisions of CrPC. The Court does no analysis of the implications of using search and seizure provisions designed for physical locations and their use for granting police access to clouds of personal data stored on our devices. By detaching the issue of police searches of mobile phones from testimonial compulsion under Article 20(3) or privacy under Article 21, the Court allows much leeway for investigative misconduct. Even if a search is ‘illegal’ as per the CrPC, seizures from it can still be admissible evidence, and the prosecution can continue to rely on, as they call it, the ‘fruit of the poisonous tree’.

Furnishing of biometrics and password by accused to investigating authorities.

The Court referred to its earlier ruling in Upkar Singh v. Ved Prakash and Ors. [(2004) 13 SCC 292], which held that any further complaint by the same complainant against the same accused in relation to the same incident will amount to an improvement on the original complaint, and would thus be prohibited under Section 162, Code of Criminal Procedure, 1973. The Court extended this ruling in Upkar Singh to cases where a report of a non-cognizable offence is followed by a private complaint about the same offence against the same accused by the same complainant. The Court reasoned that, in non-cognizable cases, police officers have similar powers of investigation as in a cognizable case, except for the power to arrest without warrant – and thus, an accused deserves to be protected against successive complaints in the same manner. [Para 5] The Court concluded that trial court judges must strike a balance between investigative powers and guarding litigants against frivolous criminal proceedings. [Paras 7, 10]

The decision in Krishna Chawla provided important clarity to the decision in Upkar Singh and the rationale underlying its ratio – informed by the desire to prevent vexatious criminal proceedings, and curb the creeping expansion of police investigative powers into an accused’s personal liberty.

The weight of poverty as a mitigating circumstance for sentencing an accused under the Narcotic Drugs and Psychotropic Substances Act, 1965 (‘NPDS Act’).

The accused appealed to the Supreme Court after the High Court affirmed the Special Court’s judgment convicting him under Section 21 of the NDPS Act for possession of 1 kg of heroin, and sentencing him to 15 years of rigorous imprisonment, instead of the minimum sentence of 10 years.

Refusing to interfere with the conviction, the Court only discussed the sentence, observing that the court may impose a higher sentence after taking into account relevant factors, including but not restricted to, those provided in Section 32B, NDPS Act. [Para 6] One of these factors includes the fact that the accused was arrested with 4 times the commercial quantity of heroin in his possession. The Court alluded to the purpose of the NDPS Act, and held that while weighing mitigating and aggravating circumstances during sentencing in drug offences, public interest and societal impact will always tilt in favour of higher punishment. It held that merely because the accused is poor or a carrier of the drugs or a sole bread earner, would not be mitigating circumstances in favour of the accused while being sentenced under the NDPS Act. [Para 7]

The disproportionate weightage given to the quantity of seized contraband, and the near dismissal of economic deprivation in the sentencing calculus – does not just ignore the fact that crime generally is a complex product of individual agency and social forces, but also erases the role that poverty specifically plays in compelling people towards selling drugs. Being blind to this, the Court effectively penalises poverty, as argued by Vaishnavi Prasad for the P39A Criminal Law Blog.

Procedure to be adopted by courts before acting on a guilty plea of an accused.

Conviction upon a guilty plea can only be done upon careful compliance with specific procedural requirements. The Court held that a guilty plea requires positive, informed action on part of the accused, and requires the following steps. First, an accurately and specifically framed charge should be read out and explained to the accused. Second, the accused, on being asked his plea, can only plead guilty if he understands the consequences of his plea and the seriousness of the charge. Third, the plea should be voluntary and unambiguously expressed. Fourth, the Magistrate must record the plea in the accused’s own words to the extent possible. After all this, the Magistrate may accept the plea after exercising his discretion on all relevant factors. The Court also opined that the dictum in Santosh v. State of Kerala [2003 (2) Crimrs 141)], that a guilty plea can be advanced at any stage of the trial after framing charges, requires reconsideration in light of the introduction of Chapter XXIA to the CrPC providing for plea bargaining when the offence is ‘pending trial’. In the facts of the case, the Court held that the plea of guilty was not to be accepted, since the accused had initially pleaded ‘not guilty’, then changed his plea after a few adjournments to a monosyllabic ‘yes’ on being asked if he is guilty. [Para 13].

The procedural requirements laid down here are imperative towards securing an accused’s right to a fair trial, especially given the wide prevalence of both linguistic and legal illiteracy in the populace.

Requirement of sanction of the State government under Section 197, CrPC for prosecuting police officers.

In Om Prakash, it was held that, for an act to be protected by the sanction requirement under Section 197, CrPC, it must have a reasonable nexus with the discharge of official duties, and must not merely be a cloak to excuse wrongdoings. In light of the medical evidence corroborating the torture of the accused, the dismissal of the complaint against him as a false and fabricated one, it was held that the acts against the complainant were unjustified. [Para 31] The presence of a departmental vehicle while apprehending the complainant during official duty hours is insufficient to qualify as a lawful discharge of duty, since there must be legal grounds to justify the deprivation of personal liberty under Article 21. Since the sanction under Section 197 is a bona fide measure to protect actions taken within the procedure established by law, it will not protect acts of public servants outside its purview. [Para 32]

While the Court held correctly that police action inflicting injuries on an accused apprehended on the basis of a false and fabricated case is not in lawful discharge of duties, the language used is of some concern. In holding that, given the accused’s proved innocence in trial, the ‘barborous acts’ were ‘uncalled for by the context’ and therefore did not warrant protection under Section 197 – the Court allows for the absurd possibility that custodial torture of an accused not proved to be innocent in trial may be ‘justifiable’ and in lawful discharge of duties.

Treatment of a protest petition as a private complaint in certain circumstances.

If a complainant files a protest petition against a closure report submitted by the police, and the Magistrate finds himself in disagreement with the protest petition, the just and proper action would be to treat the petition like a complaint so that the petitioner gets the chance to adduce evidence in support of his accusation.

This judgment seems to sit uncomfortably with the decision of the Supreme Court in Krishna Lal Chawla where it was held that the Magistrate may not entertain a private complaint with respect to the same incident against the same accused and from the same complainant if a previous non-cognizable report/FIR has already been filed. The fact that the accused here were unknown persons may allow for a deviation from the Apex Court’s ruling; however, this was not elaborated upon.

Accused’s right to voluntarily undertake a narco-analysis test to prove his innocence.

Selvi, Narco-analysis test, Voluntary, Self-incrimination

By examining the ruling of the courts in Selvi v. State of Karnataka, the court held that there was no criteria to decide the veracity of the findings of a narco-analysis test, since they are a product of the accused’s subconscious mind and might be fanciful conjectures. [Para 18] Further, even if a person agrees to undergo the test of his own volition, the absence of the ability to stay silent to prevent self-incrimination and imparting knowledge unconsciously render the voluntariness of the confessions suspect. [Para 19, 20] Thus, with no method to definitively ascertain the veracity of the confessions, the findings of a narco-analysis test cannot be used as corroborative evidence, even if it is undertaken voluntarily. [Para 22]

While the Court correctly, relying on Selvi, rules that even voluntary administration of narco-analysis tests cannot be admitted as evidence because of the rule against self-incrimination. However, the step in reasoning that extends this to even exculpatory results has not been fully clarified.

This case discusses the commutation of the death sentence in light of the conviction under fourthly clause of section 300. It also discusses the imposition of the death sentence on the basis of circumstantial evidence, expressing doubts regarding the residual doubt theory.

The accused in the present case was sentenced to death for the rape and murder of his two-and-a-half-year-old niece. The trial court’s decision was confirmed by the High Court and came to the Supreme Court on appeal.

The Supreme Court commuted the death sentence imposed on the accused to life imprisonment. The court held that despite the sexual assault being severe and barbaric, the appellant did not consciously cause injury with the intent of extinguishing the life of the victim. This act falls under the ‘fourthly’ clause of Section 300 of the Indian Penal Code, under which death sentences are rarely imposed and so the Court commuted the sentence to life imprisonment. In addition, the Court discussed the imposition of the death penalty in cases of circumstantial evidence, holding that the mere reliance on circumstantial evidence for conviction is not sufficient reason to commute the death sentence. However, in such cases the circumstantial evidence must be of an ‘unimpeachable character in establishing the guilt of the accused’ and must be of sufficient strength to foreclose a lesser sentence than the death penalty. The court noted the greater burden for conviction on the basis of circumstantial evidence, which requires that each circumstance must be individually proved and together must form a conclusive chain that rules out the possibility of anything but guilt. In light of these principles, the Court doubted the place of the ‘residual doubt’ theory in cases of circumstantial evidence.

The accused persons in this case were sentenced to life imprisonment for the gang rape of a law student. The case came up before the High Court on appeal.

While the Court upheld the sentence of life imprisonment imposed on the accused persons, the bench opined that the provisions of the Indian Penal Code, despite being around for nearly 74 years, had failed to ensure the safety of women. For these reasons, the Court recommended that Section 376D of the Indian Penal Code (IPC) which stipulates punishment for the offence of gang rape be amended to include the death penalty as a possible punishment. The Court also held that rape, apart from being a dehumanizing Act and an unlawful intrusion on the right to privacy and sanctity of a woman, also “leaves behind a scar on the most cherished position i.e., her dignity, honour, reputation and chastity.” In doing so, the Court rejected the plea by the accused persons seeking leniency and urged the public to be supportive of survivors of rape.

The petitioners in this case filed a Public Interest Litigation (PIL) challenging the constitutional validity of Sections 376 and 376A of the Indian Penal Code (IPC) on the ground that the said provisions left loopholes in the law by not awarding the death penalty for the offence of rape on woman under the age of 16 years, and were hence in violation of Articles 14 and 21 of the Constitution of India. The petition also challenged Section 376AB as unconstitutional as it did not include a woman under the age of 16.

The Court held that anyone who commits rape on a woman under the age of sixteen years, ,who dies during/due to the act, would be charged both for offences under Section 376 IPC and under Section 302 IPC. Hence, if the victim died during the course of rape, or due to rape, the offender could be punished with capital punishment under these provisions. The Court dismissed the PIL while noting that a judicial forum is not a place for raising an academic issue with regard to any alleged weakness in the law. It was also observed that the enactment of a law was a legislative policy function and the petitioners had not followed the appropriate procedure as they had failed to submit any representation to the Central Law Ministry bringing to its notice the alleged weakness in the law.

This case decided the question as to whether, in a case of abduction followed by murder and there being absence of direct evidence of murder, a court is enabled to presume that the abductor is the murder.

This case was referred to a three-judge bench of the Supreme Court by another two-judge bench of the court in which the court was divided on finding of guilt of the accused in the abduction and murder of former Tamil Nadu MLA MK Balan. The question before the Court in the present case was whether a presumption of murder can be drawn when certain other circumstances were proved.

The Supreme Court held that in a case of abduction followed by murder, the abductor may be presumed to be guilty of murder when the abduction is followed by illegal confinement and later by death, each of which are proved. The Court relied on Section 106 of the Evidence Act which places the burden of proving a fact that is especially within an accused person’s knowledge, upon him. The Court concluded that in this case, although there was no direct evidence linking the accused to the act of murder, the principle embodied under Section 106 when applied to the factual matrix coupled with the failure of the accused to offer a different explanation was sufficient to prove guilt beyond reasonable doubt. In its judgment, the Court also discusses principles relating to offences of kidnapping, abduction and abetment, as well as accomplice and approver evidence.

This decision concerned the question of whether one could do away with the requirement of a certificate under Section 65B(4) of the Evidence Act in respect of secondary evidence of contents of electronic record.

The civil appeals were referred to a Three-Judge Bench by a Division Bench reference order in 2019 which dealt with the interpretation of Section 65B of the Evidence Act. In the reference order, after quoting from Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473 (a Three- Judge Bench decision), it was found that the Division Bench judgment in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 may need reconsideration. In the case of Shafhi Mohammad, the Court had held that a party who is not in possession of a device from which the electronic document is produced, cannot be required to produce a certificate under Section 65B of the Evidence Act. The Court in the Anvar case had held that secondary electronic evidence shall only be admitted in evidence if it fulfilled the requirements prescribed under Section 65B of the Evidence Act which included the production of a certificate obtained at the time of taking the document. In the present case, the Supreme Court was required to resolve this apparent conflict between the two judgments.

The Supreme Court overruled the judgment in the Shafhi Mohammad case by holding that it was incorrect, per incuriam, and contrary to law. In doing so, the Court held that a certificate required under Section 65B is a condition precedent to the admissibility of secondary electronic evidence and must be obtained by applying to the requisite person or authority. However, if such a person or authority refuses to grant such a certificate or fails to reply to an application for the certificate, the party concerned may apply to the Court for its production under the provisions of the Evidence Act, Code of Criminal Procedure or Code of Civil Procedure. The Court further held that the mandatory requirement under Section 65B(4) may be dispensed with in a fact circumstance where the certificate is still not forthcoming despite a party having done everything in its power to obtain the requisite certificate from the authorities, including directions from a court. The Supreme Court also clarified that in the event that the original document itself is produced by the party (say, by the owner of a computer or mobile device stepping into the witness box and proving that the said device, on which the information is first stored, is owned / operated by him), no such certificate shall be required to admit secondary electronic evidence under Section 65B(4) of the Act. The Court held that Sections 65A and 65B are a complete code when it comes to admissibility of evidence of information contained in electronic record, and secondary evidence of contents of electronic document cannot be led under, say, Section 65 of the Evidence Act (the Court’s previous judgment in Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 was overruled on this point). As to the requirements for a valid certificate, the Court held that the same are all – and not any – of the conditions specified in Section 65B(4). As to the stage of production of the certificate, the Court held that while generally the same ought to be latest before the trial commences, however, the court may also allow the filing of certificate at any stage later so long as the hearing in a trial is not yet over – subject to there being no irreversible prejudice or impairment of right to fair trial caused to the accused.

The case highlighted the importance of properly appreciating alternate explanations offered by the accused upon examination by court under Section 313 of the Code of Criminal Procedure, 1973 (CrPC).

The appellant in this case was alleged to have compelled the prosecutrix to have illicit intercourse with a young boy living as the appellant’s tenant. The prosecutrix contended that when she refused to do so, the appellant threatened to kill her brother if she informed anyone of the matter. During the trial, upon being examined under Section 313 CrPC, the appellant denied the accusations and claimed that the complaint was motivated purely to take revenge for the appellant having previously filed an FIR alleging rape against a third person with whom the complainant had a connection. Both the trial court and High Court rejected the alternate version put forth as improbable and convicted the appellant under Sections 366A (procuration of minor girl) and 506 (criminal intimidation) of the Indian Penal Code, 1860 (IPC).

On appeal to the Supreme Court, it was held that as per Section 313(1)(b) of the CrPC, once any alternate version of events is proffered by the accused, a failure by the court to carefully analyse the defence could endanger the order of conviction. The Court observed that while the prosecution needs to prove its case beyond a reasonable doubt, the accused only needs to prove the alternate version by a mere preponderance of probabilities. The Court observed several infirmities in the prosecution case, such as: unnatural delay (in the facts of the case) by the prosecutrix and her father in registering the FIR, non-examination of material independent witnesses, evidence of appellant’s neighbour casting doubt on the existence of any tenant boy as described, the prosecutrix and her father contradicting each other in describing the boy, letters written by the prosecutrix allegedly under force by the appellant not being produced. The Court observed that the trial court and High Court erroneously brushed aside all these contradictions and infirmities, which amounted to reversal of the burden of proof imposed in criminal trials. On the charge of criminal intimidation, the Court held that instead of mere utterances of words, proving the intention of the appellant to cause alarm or compel doing/abstaining from some act, was the prerequisite for successful conviction. The Court acquitted the appellant.

This case discusses the weight to be accorded to a refusal to submit to a Test Identification Parade in determining the guilt of the accused.

The accused persons in this case were convicted of murdering a law student and sentenced to life imprisonment. When the matter came up before the Supreme Court on appeal, the prosecution argued that an adverse inference of guilt must be drawn against the accused for refusing to submit themselves to a Test Identification Parade (TIP)

On the question of the importance of a TIP in the trial process, the Supreme Court observed that there was no specific statutory provision either in the Code of Criminal Procedure or the Indian Evidence Act which mandates that a TIP must be carried out. Further, the weight to be attached to an identification made during a TIP is to be determined by the court in light of the circumstances of that particular case. The Court held that it cannot arrive at a finding of guilt purely based on the refusal of the accused to undergo an identification parade. Rather, courts must look for corroborating material of a substantial nature (such as forensic or other direct evidence) before arriving at a finding of guilt of the accused. In the present case, the Court concluded that when the serious infirmities in other eyewitness and forensic evidence were taken together with a refusal to undergo a TIP, the latter is only of secondary importance and cannot survive independently in the absence of it being a substantive piece of evidence.

This case pertains to the admissibility of the testimony of an eye-witness and whether a police constable, who was not close to the scene of the crime, can be considered an eye-witness.

The petitioner in the present case contended that he had been falsely implicated despite no evidence. He alleged that the testimony of a “planted witness” who was a police constable, had been relied upon to secure his conviction.

The Delhi High Court held that as a rule of prudence, police officials can be said to be “interested” in the results of a criminal case projected by them and therefore, their testimonies should be corroborated by some independent evidence. In the given case, the Court observed that the police officials had conducted themselves in a lackadaisical manner and hence, the testimonies of police officials in the absence of any corroboration from a public witness were hard to believe.

The case pertains to admissibility of evidence obtained through violation of the right to privacy.

The appellant in this case was challenging the order of the Family Court which had allowed her husband to bring on the court’s record, the evidence contained in a compact disk (CD) that violated her right to privacy.

Allowing the admissibility of the CD in evidence, the Delhi High Court held that a fair chance to bring relevant evidence before the court is a critical part of the right to a fair trial. The Court opined that both the right to privacy and the right to a fair trial were a part of Article 21 of the Constitution and were not absolute as and when operating against each other. Thus, merely because the right to privacy is recognised as a fundamental right, that alone would not make evidence that is collected in breach of that right, inadmissible. According to the Court, fall evidence that is relevant to the trial is admissible, regardless of how it is collected. Further, the Court while admitting the CD recording as evidence noted that family disputes by their very nature involve private matters and thus, shutting-out such evidence can harm the cause of public justice by denying the respective party of the right to a fair trial.

This case was a Public Interest Litigation (PIL) filed by a practising Advocate seeking directions from the Court with regard to conducting autopsies. According to the petitioner, current practices followed in government hospitals and medical colleges showed that there was a significant lack of qualified medical staff and no clear procedure while conducting post-mortems.

The Court, while perusing certain reports procured from a government hospital and medical college in Madurai was shocked by the manner in which post-mortem reports were being prepared by officials and the pathetic understanding of higher officials in this respect. According to the Court, more than 50 post-mortem reports contained the same findings and body measurements were not taken in any of these cases. Further, the Court found that doctors were overburdened with preparing these reports and many were absent from work despite signing the attendance register. In this context, the Court issued certain directions to address the shabby and unscientific manner in which the autopsy reports were being prepared:
1. All doctors shall follow Article 621 of the Tamil Nadu Medical Code which requires post-mortem certificates to be sent by doctors to a Judicial Magistrate and a copy to be sent to the Head of the Department on the same day, failing which departmental proceedings shall be initiated against them.
2. The post-mortem certificates shall be issued based on the model prescribed by the National Human Rights Commission and other regulations governing the process.
3. Biometric systems shall be set up for all government servants to mark their attendance at the time of entering and leaving the office. It is only on the basis of this information that salary shall be paid to them on a proportional basis.
4. All post-mortem procedures shall be recorded on video upon a request being made by relatives or friends of the deceased.
5. CCTV cameras shall be installed at all important points of the mortuary as well as in the dissection halls and they shall be operational at all times.
6. The government shall provide every facility conducting post-mortems with sufficient scientific tools and equipment within a period of six months from the date of the judgment.
7. The government shall appoint scientific officers in all government medical college hospitals and district headquarters with the requisite qualifications and to perform the required duties and responsibilities. A Committee shall be appointed to appoint the said officers within a period of one year.

The accused in the present case was convicted and sentenced to death for the murder of a woman and her two daughters.

The Patna High Court acquitted the accused who was on death-row, setting aside the conviction for murder, for lack of evidence It held that the quality and strength of the evidence and the case of the prosecution not only have a bearing on the decision of conviction or acquittal but also very much on the quantum of sentencing. The bench stated that the Trial Court had ascribed the fact of the victim is an unmarried woman who was taken “advantage” of as an aggravating factor which is a fact that has neither been proved nor been alleged in the case. On the question of residual doubt, the Court held that residual doubt becomes a factor for commuting sentences, especially where evidence is purely circumstantial. According to the Court, the judicial approach on the death penalty ought to be cautious, circumspect and careful more so because the decision is permanent and irreversible. The Court observed that the trial court had been swayed by the fact that the victim was a woman and thereby deserved greater reparations and laid great emphasis on the collective conscience doctrine. The Court opined that the trial court’s decision to consider an unmarried woman being ‘taken advantage of’ as an aggravating factor reflected the “paternalistic attitude of society towards women, who are always considered as a helpless victim. “The fact that case is purely based on circumstantial evidence and residual doubt remains, distinguished from principle of proof beyond a reasonable doubt in the case; such becomes a mitigating circumstance for commutation of the death penalty”, it held.

Applicability of the Indian Evidence Act, 1872 (‘IEA’) and other general principles of law to detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘COFEPOSA’).

The court held that proceedings under the COFEPOSA are not proceedings before a court, precluding the application of the IEA to a detaining authority’s decision to pass an order of detention. Further, the court held that, since detention is preventive (not punitive) in nature, the detaining authority can consider a wide range of material, including past conduct, circumstances, etc. to determine whether detention is required. Such determinations are administrative in nature and are based on the subjective satisfaction of the detaining authority [Para 17, 18]. Therefore, even confessions under the Customs Act are relevant for the purposes of the authority’s decision, and there is no statutory or constitutional bar against considering them. [Para 19, 20].

Even if the COFEPOSA proceedings are held to be not proceedings before a court, the detention order has significant implications for personal liberty. In such a case, holding that confessions made to an officer under the Customs Act which would otherwise fall under the prohibition in Section 25 of the IEA can alone form “subjective satisfaction” for a detention order ignores the realities that underlie a provision like Section 25.

Grant of bail under Section 12 of the Juvenile Juvenile Justice Act, 2015 (JJ Act) to a child in conflict with the law (CICL) over 16 years of age.

child in conflict with law, above 16 years old, Section 12 JJ Act, bail

The Court referred to the Supreme Court’s directions in Re: Contagion of COVID 19 Virus in Children’s Homes (2020) 15 SCC 280 regarding the release of children from Observation Home, subject to the risk of exposure to psychological/moral/physical danger as provided under Section 12, JJ Act. The Court clarified that the distinction between CICLs below and above the age of 16 years is only provided with respect to inquiry by the Juvenile Justice Board or trial by the Children’s Court under Sections 15 and 18(3) of the JJ Act, and that there is no such distinction when it comes to grant of bail under Section 12 of the Act. [Para 13] Thus, age is an irrelevant factor in the decision of release.

The COVID-19 pandemic has only highlighted the existing vulnerability of children in conflict with the law, particularly of those above the age of 16 years who the law denies the right to be read as a ‘child’. Even as the trial processes themselves treat these children as ‘adults’, it is imperative that their bail decisions be determined by the relaxed standards laid down in the JJ Act to prevent victimisation of the undertrial CICL and to also protect them from the recidivism encouraged by prolonged life in incarceral settings.

Whether anticipatory bail applications under Section 438 of the CrPC are maintainable in cases under the Juvenile Justice Act, 2015 (‘JJ Act’)?

Anticipatory bail applications, JJ Act, maintainability

The Court held that the ‘apprehension’ of a child in conflict with the law as provided for in Section of the JJ Act is at par with the ‘arrest’ of a person as provided for under CrPC. Further, the language of Section 12 of the JJ Act, which makes provision for granting bail to children in conflict with the law, does not bar the child’s right to seek anticipatory bail. [Para 13] The objective of the JJ Act was to benefit children, and it cannot be used to curtail their liberties [Para 16]. Thus, the applicant’s anticipatory bail application was considered maintainable. [Para 20]

Section 438, CrPC provides for anticipatory bail where ‘any person has reason to believe that he may be arrested’. Section 12 of the JJ Act, 2015 only provides for ‘apprehension’ of the child in conflict with the law, not their ‘arrest’. The Gujarat HC pierced through these semantics and looked at the crux of the matter – liberty – and held that arrest and apprehension are at par. This interpretation, however, did not find favour with two Punjab and Haryana and Telangana High Courts decisions passed in 2021. They, absurdly, hold that such an anticipatory bail application is not maintainable since an accused under the JJ Act, 2015 cannot apprehend ‘arrest’ at all, highlighting the need for a final resolution of this issue by the Supreme Court.

Whether a Probation Officer is an ‘expert’ under Section 15 of the Juvenile Justice Act (JJ Act) and whether consulting an expert is mandatory under Section 15?

Section 15 JJ Act, expert, Probation Officer

The Court relied upon the principles of statutory interpretation to decide the connotation of the word ‘may’ under Section 15 of the Act, read with Section 18(3). It held that when the word ‘may’ is used in an enactment with respect to a Court, it should be understood as ‘shall’. [Para 12] Thus, experts do need to be involved in conducting the preliminary assessment of the juvenile’s mental capacity under Section 15, JJ Act. However, the court held that a Probation Officer is an expert under Rule 10(a) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, which expands the scope of ‘other experts’ under Section 15 to include officials who have experience working with children in difficult circumstances. [Para 14] In addition, since the Board supplemented the Probation Officer’s report with a questionnaire of its own, it was held that the Board had considered all aspects. [Para 18]

Since Section 15 directly pertains to the child in conflict with law and his ability to understand the consequences of his offence, and allows him to be tried as an adult if certain facts about his capacity are proved, it is difficult to see how this determination can be made without reference to expert psychiatric opinion.

In this decision, while dismissing the appeal of an accused in a robbery case, the Supreme Court commented on the appropriate stage at which claims of juvenility or mental unsoundness ought to be raised by the accused.

The accused was shown to be above 18 years of age at the time of the crime based on his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (CrPC) in the course of his trial for voluntarily causing hurt in committing robbery. On appeal to the High Court, the appellant raised pleas of juvenility and insanity, claiming that he was only 15 years old at the time of the crime and had been undergoing medical treatment for a mental disorder at a local government hospital. The appellant had also produced documentary proof of the hospital records and a testimony by his mother in support of his claims.

The Supreme Court held that arguments such as plea of unsoundness of mind under Section 84 of the Indian Penal Code, 1860 or mitigating circumstances like juvenility of age ordinarily ought to be raised during the trial itself, as belated claims would undermine the genuineness of the defence’s case. Further, the Court observed that the mere production of the above stated documentary evidence along with the statement of the appellant’s mother would not be sufficient, as the burden on the accused was to prove by a preponderance of probabilities that he suffered from a serious-enough mental disease or infirmity at the time of the crime – the infirmities being of such a nature that it would affect the individual’s ability to distinguish right from wrong at the time of the crime, and that but for such impairment, the crime would not have been committed. In rejecting the juvenility claim, the Court also noted that no birth certificate, school record or medical test were put forth. In rejecting the claim of mental unsoundness, the Court noted the appellant’s attempts to run away from the crime scene, his answers in examination under Section 313 CrPC not being mechanical or laconic, and the fact that on enquiries made to the appellant’s counsel by the Court, it emerged that the appellant had been untraceable for the last 10 years. The Court upheld the appellant’s conviction, cancelled his bail bond, and directed that he be taken into custody.

The proviso to Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), expressly provides that a claim of juvenility may be raised before any court and shall be recognised by the court at any stage of the case, even after its final disposal. However, the Court curiously makes no reference to the JJ Act at all.

This case was referred to a five judge of the Supreme Court by a three judge bench to clarify whether the trial of a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 will be vitiated if the complainant and the investigating officer are the same person. The three judge bench of the Supreme Court referred the matter upon doubting the correctness of the observations made in Mohan Lal v. State of Punjab [(2018) 17 SCC 627].

This case decided whether the conduct of investigation by the complainant officer vitiates a trial and entitles the accused to an acquittal

The Supreme Court held that it cannot be laid down as a general proposition that an accused under the Narcotic Drugs & Psychotropic Substances Act (NDPS Act) is entitled to an acquittal merely because the complainant is the investigating officer and hence the investigation is biased and trial is vitiated. It held that the NDPS Act permits the informant/ complainant to be an investigating officer and taking a contrary view would amount to amending Section 53 and other relevant provisions of the Act, which is not permissible. The Court overruled the judgment in Mohan Lal v. State of Punjab [(2018) 17 SCC 627] and other decisions which have held that in order to carry out a fair investigation, the informant and the investigator must not be the same person. However, the Constitution Bench clarified that the determination of whether the investigation becomes tainted on account of the informant and the investigation officer being the same person is to be decided on the basis of the facts and circumstances of each case. The Court observed that any question of bias in the investigation is to be determined on a case-by-case basis and hence a blanket rule cannot be laid down. Therefore, merely because the informant is the investigator would not in itself mean that the investigation contains an element of unfairness or bias and would not entitle the accused to an automatic acquittal.

This case pertains to the question whether the presence of a Magistrate is mandatory while conducting a search under Section 50 of the NDPS Act

A single-judge bench of the Delhi High Court noticed two contradictory judgments on the issue of whether the mandatory presence of a Magistrate is required during the search of an accused person for the recovery of contraband articles under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Section 50(1) of the NDPS Act provides that when any officer duly authorised under the Act is about to search any person for the recovery of contraband articles, the officer shall, if required by the person, take such person to the nearest Gazetted Officer or to the nearest Magistrate. On this question, the Court noticed two contrasting judgments. In the case of Innocent Uzoma v. State, the Court interpreted the words “if such person so requires” to mean that the presence of a Magistrate is contingent upon the desire of the accused. However, in the case of Vaibhav Gupta v. State, the Court had held compliance under Section 50 of the NDPS Act is mandatory even if the accused has denied the same, the search has to be conducted in the presence of a Magistrate or Gazetted Officer. Thus, the Court in the present case has referred this matter to a larger bench. The Court, however, clarified that referring the matter to a larger bench did not make an embargo on the petitioner for filing interim application, which would be considered and decided on merits of the application.

The petitioners in this case were arrested under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. They contended that the police did not seize any contraband substance from their possession and failed to file an FIR despite carrying out a search. The primary contention of the petitioners was that the whole seizure was bad in law and hence the seizure panchanama could not be relied upon.

The Karnataka High Court held that the Supreme Court’s guidelines in the case of Lalita Kumari v. Government of Uttar Pradesh and Ors. [(2014) 2 SCC 1] are applicable in cases where a credible information is received by the SHO that an offence has already been committed.his rule will not apply in cases wherein an officer receives secret information about a crime which is yet to occur, as the primary duty of the officer is to proceed to the spot and prevent the commission of the crime In such cases, the Court opined that the first duty of an officer is to arrest the accused and collect evidence, and not to register an FIR. In the present case the Court held that the police officer had not erred as he had received information about the likelihood of offences under the Narcotic Drugs & Psychotropic Substances Act (NDPS Act) being committed and only about the suspected possession of contraband substances, and hence, no FIR could be registered without ascertaining the truth in the information. The Court also held that the word ‘conscious possession’ refers to the mental state of a person and his knowledge about something.

The weight of poverty as a mitigating circumstance for sentencing an accused under the Narcotic Drugs and Psychotropic Substances Act, 1965 (‘NPDS Act’).

The accused appealed to the Supreme Court after the High Court affirmed the Special Court’s judgment convicting him under Section 21 of the NDPS Act for possession of 1 kg of heroin, and sentencing him to 15 years of rigorous imprisonment, instead of the minimum sentence of 10 years.

Refusing to interfere with the conviction, the Court only discussed the sentence, observing that the court may impose a higher sentence after taking into account relevant factors, including but not restricted to, those provided in Section 32B, NDPS Act. [Para 6] One of these factors includes the fact that the accused was arrested with 4 times the commercial quantity of heroin in his possession. The Court alluded to the purpose of the NDPS Act, and held that while weighing mitigating and aggravating circumstances during sentencing in drug offences, public interest and societal impact will always tilt in favour of higher punishment. It held that merely because the accused is poor or a carrier of the drugs or a sole bread earner, would not be mitigating circumstances in favour of the accused while being sentenced under the NDPS Act. [Para 7]

The disproportionate weightage given to the quantity of seized contraband, and the near dismissal of economic deprivation in the sentencing calculus – does not just ignore the fact that crime generally is a complex product of individual agency and social forces, but also erases the role that poverty specifically plays in compelling people towards selling drugs. Being blind to this, the Court effectively penalises poverty, as argued by Vaishnavi Prasad for the P39A Criminal Law Blog.

The petitioner in this case has sought directions to ensure that adequate measures are taken to prevent attempts to commit suicide by persons throwing themselves into animal enclosures in zoos.

The Court called upon the Union of India to justify Section 115 of the Mental Health Care Act in an attempt to address the conflict between Section 309 of the Indian Penal Code and Section 115.

The Supreme Court issued a notice to the State seeking an explanation for the apparent conflict between Section 115 of the Mental Healthcare Act, 2017 and Section 309 of the Indian Penal Code. While Section 309 criminalises any act of attempted suicide, Section 115 seemingly dilutes this provision by raising a presumption of severe stress in cases of attempted suicide, and places the onus on the appropriate government to treat and rehabilitate persons who have attempted to commit suicide and to reduce the risk of recurrence of such attempts. The Chief Justice observed that every case of attempted suicide cannot be presumed to have arisen out of extreme stress or unsoundness of mind. The Court observed that Section 115, seemed to negate Section 309 and directed the State to explain the rationale behind inserting Section 115 and to justify its validity.

The petitioner was the father of a murder accused and had filed the plea fearing that his son’s plea of insanity had been ignored by the lower court without officially ascertaining his mental state.

The Madras High Court observed that based on the finding submitted by the Medical Board of a government hospital, it was clear that the accused was not fit to face trial on account of his mental illness. According to the Court, despite the defence of insanity being raised by the accused under Section 84 of the Indian Penal Code (IPC), the Magistrate did not take any steps to satisfy himself as to whether the accused was in a sound state of mind to comprehend the proceedings. The Court provided a detailed analysis of the procedure to be adopted by courts during an inquiry and trial for an offence allegedly committed by a person of unsound mind. The discussion included how a Magisterial inquiry is to be conducted under Section 328 of the Code of Criminal Procedure (CrPC), and how a trial under Section 329 CrPC is to be conducted, the application of general exceptions under the IPC, the difference between a ‘mentally ill person’ and a person suffering from mental retardation, and what procedure is to be followed in a trial when the accused is a mentally retarded person and there exists no prima facie case against him.

The Court also clarified that every criminal act passes muster the exceptions contained in Chapter IV (General Exceptions) of the IPC to metamorphosize into an offence.

Condition of mentally ill prisoners in Kerala.

Analyzing relevant provisions of Chapter XXV, CrPC, the Court noted that a mentally ill prisoner who is eligible for bail/discharge would have to continue in prison or in a mental health facility unless ‘good samaritans’, usually the friends/relatives of the prisoner, volunteer to care for him. Further, undertrials also continue to be under remand until they are capable of defending themselves in court [Para 7]. The Court stressed on the importance of harmonizing the provisions of CrPC and the Mental Healthcare Act, 2017, including but not limited to, setting up mental health facilities in the medical wing of each prison as per Section 103(6) of the latter [Para 9, 13(1)]. The Mental Health Review Boards must work with the Kerala State Legal Services Authority (‘KELSA’) by providing it with the details of mentally ill prisoners enabling it to trigger judicial action for deserving cases. [Para 12, 13(V)] Further, the KELSA was directed to work with the State Government to trace the relatives of such prisoners fit for rehabilitation. Upon their unavailability, the State Government will take measures to transfer these prisoners and acquitted persons to registered mental health establishments. [Para 13(VI)]

There is a raging, largely undiagnosed and untreated mental health epidemic in our prisons. Prisoners are twice as likely as the general population to die by suicide, and yet 21 states do not have any psychiatrists/psychologists in their prison staff. The Kerala High Court has taken an important first step that must be met with appropriate administrative action and initiative.

The Allahabad High Court had quashed an FIR registered by the police under Sections 18 and 27 of the Drugs and Cosmetics Act, 1940 against the respondent who was the owner of a medical store but did not possess a valid license for storing the medicines. The High Court held that only an Inspector who was designated as a Gazetted Officer under the Act was empowered to register a complaint under the Act.

Whether a police officer can register an FIR under Section 154 of the Cr.P.C. and carry out arrests or investigations in respect of the cognizable offences listed under Chapter IV of the Drugs and Cosmetics Act, 1940.

The Supreme Court upheld the judgment of the Allahabad High Court by observing that in consideration of cognizable offences under the Drugs and Cosmetics Act, 1940, the scheme of the Code of Criminal Procedure, as well as the legislative intention in conferring powers under these two Acts, police officers cannot register an FIR under Section 154 of the CrPC, investigate or prosecute cognizable offences that fall solely under the purview of Chapter IV of the Act. However, the Court noted that although designated Drugs Inspectors under the Act can make arrests in the case of cognizable offences under Chapter IV without a warrant, they are still bound by the procedural guidelines laid down by the Court in the case of D.K. Basu v. State of West Bengal [(1997 (1) SCC 416)] as well as Section 58 of the CrPC. The Court also clarified that the verdict would operate prospectively from the date of the judgment.

This case was referred to a five judge of the Supreme Court by a three judge bench to clarify whether the trial of a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 will be vitiated if the complainant and the investigating officer are the same person. The three judge bench of the Supreme Court referred the matter upon doubting the correctness of the observations made in Mohan Lal v. State of Punjab [(2018) 17 SCC 627].

This case decided whether the conduct of investigation by the complainant officer vitiates a trial and entitles the accused to an acquittal

The Supreme Court held that it cannot be laid down as a general proposition that an accused under the Narcotic Drugs & Psychotropic Substances Act (NDPS Act) is entitled to an acquittal merely because the complainant is the investigating officer and hence the investigation is biased and trial is vitiated. It held that the NDPS Act permits the informant/ complainant to be an investigating officer and taking a contrary view would amount to amending Section 53 and other relevant provisions of the Act, which is not permissible. The Court overruled the judgment in Mohan Lal v. State of Punjab [(2018) 17 SCC 627] and other decisions which have held that in order to carry out a fair investigation, the informant and the investigator must not be the same person. However, the Constitution Bench clarified that the determination of whether the investigation becomes tainted on account of the informant and the investigation officer being the same person is to be decided on the basis of the facts and circumstances of each case. The Court observed that any question of bias in the investigation is to be determined on a case-by-case basis and hence a blanket rule cannot be laid down. Therefore, merely because the informant is the investigator would not in itself mean that the investigation contains an element of unfairness or bias and would not entitle the accused to an automatic acquittal.

This case deals with the sanction to prosecute public officials, and whether failure to obtain prior consent vitiates the entire investigation.

In this case, the CBI, after conducting a surprise raid, had registered an offence against certain companies including Fertico Marketing alleging that they were purchasing and selling coal in the black market. During the investigation, it emerged that two state officials had abused their position to obtain pecuniary advantage from the accused companies. The appellants contended that a failure of the CBI to obtain prior consent from the State government as per Section 6 of the Delhi State Police Establishment Act, 1946 (DSPE) before conducting the investigation would result in vitiating the entire investigation. On the other hand, the State government submitted that such consent was only required in cases relating to the investigation of public servants, and hence, the investigation against the accused companies could not be vitiated on this ground.

The Supreme Court dismissed the appeal and held that with respect to the investigation being carried out against the accused private companies, ‘the members of the DSPE have all the powers and jurisdictions’. On the question of prior consent vis-à-vis the accused public servants, the Court observed that not obtaining prior consent of the State government under Section 6 of the DSPE Act would not vitiate the investigation unless the illegality in the investigation can be shown to have resulted in a miscarriage of justice or some prejudice to the accused. The Court emphasised that invalidity of the investigation has no connection with the competence of the court. The Court also noted that no case could be made out in this regard since the accused public servants had themselves raised no concerns regarding any prejudice caused to them specifically on account of not obtaining prior consent of the government.

This case pertains to the question whether the presence of a Magistrate is mandatory while conducting a search under Section 50 of the NDPS Act

Search and seizure; right to privacy; NDPS Search; Presence of magistrate

A single-judge bench of the Delhi High Court noticed two contradictory judgments on the issue of whether the mandatory presence of a Magistrate is required during the search of an accused person for the recovery of contraband articles under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Section 50(1) of the NDPS Act provides that when any officer duly authorised under the Act is about to search any person for the recovery of contraband articles, the officer shall, if required by the person, take such person to the nearest Gazetted Officer or to the nearest Magistrate. On this question, the Court noticed two contrasting judgments. In the case of Innocent Uzoma v. State, the Court interpreted the words “if such person so requires” to mean that the presence of a Magistrate is contingent upon the desire of the accused. However, in the case of Vaibhav Gupta v. State, the Court had held compliance under Section 50 of the NDPS Act is mandatory even if the accused has denied the same, the search has to be conducted in the presence of a Magistrate or Gazetted Officer. Thus, the Court in the present case has referred this matter to a larger bench. The Court, however, clarified that referring the matter to a larger bench did not make an embargo on the petitioner for filing interim application, which would be considered and decided on merits of the application.

NDPS, Conscious Possession, Search Without Warrant, Delay in FIR, Seizure without FIR

The petitioners in this case were arrested under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. They contended that the police did not seize any contraband substance from their possession and failed to file an FIR despite carrying out a search. The primary contention of the petitioners was that the whole seizure was bad in law and hence the seizure panchanama could not be relied upon.

The Karnataka High Court held that the Supreme Court’s guidelines in the case of Lalita Kumari v. Government of Uttar Pradesh and Ors. [(2014) 2 SCC 1] are applicable in cases where a credible information is received by the SHO that an offence has already been committed.his rule will not apply in cases wherein an officer receives secret information about a crime which is yet to occur, as the primary duty of the officer is to proceed to the spot and prevent the commission of the crime In such cases, the Court opined that the first duty of an officer is to arrest the accused and collect evidence, and not to register an FIR. In the present case the Court held that the police officer had not erred as he had received information about the likelihood of offences under the Narcotic Drugs & Psychotropic Substances Act (NDPS Act) being committed and only about the suspected possession of contraband substances, and hence, no FIR could be registered without ascertaining the truth in the information. The Court also held that the word ‘conscious possession’ refers to the mental state of a person and his knowledge about something.

Constraints on the powers of preventive detention generally and specifically the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).

The Court stated that the power of preventive detention is made subject to the requirement of communicating grounds for such detention under Article 22(1) to allow the detenu to make representations against his detention. This includes furnishing grounds in their entirety along with all materials and documents relied upon, and the detaining authority’s train of thought in arriving at its conclusions [Paras 8-10]. Further, the Court held that the detaining authority, upon application of its mind, must come to the conclusion that the detenu would continue to indulge in the prohibited activity; and that, this subjective satisfaction would be subject to judicial review of compliance with safeguards and of the relevancy of the material forming the basis of the detention. [Para. 11] The Court also held that undue delay at any stage, including in deciding the detenu’s representations, vitiates the detention and entitles the detenu to immediate release. [Para. 12] Finally, the Court held that the detaining authority, government and advisory board must each consider the representation of the detenu independently and are not substitutes for each other. [Para. 13]

The Karnataka and the Allahabad High Courts, in 2021, also held similarly – that, a detenu’s representation for release must be considered at the earliest point of time. It is notable that, as per NCRB’s latest statistics, over 91,000 persons were subject to preventive detention and released in 2019 – and of these a whopping 11,500 were detained for a duration between 3-6 months. It is worth considering that the malaise of preventive detention laws is not curable by judicial intervention in individual cases. The tendency of governments to routinely extend detention periods, and the absence of any compensation by courts upon quashing of illegal detention orders has also been a trend noted in a few states.

Furnishing of biometrics and password by accused to investigating authorities.

The Court held that an accused cannot be constrained to cooperate with investigating authorities by being made to furnish private data such as passwords/biometrics, without a search warrant issued in accordance with search and seizure provisions of CrPC. [Para. 18.1] Upon the issuance of a warrant by the Court, however, the police is allowed to hire specialised agencies to crack into the electronic device, in the event of the accused’s continued non-cooperation. [Para 16.5] The Court further clarified that furnishing such private information will not amount to ‘giving testimony’ for the purposes of Article 20(3) of the Constitution, comparing it to giving a thumbprint impression. The Court further held that accessing such data by the investigation authorities is itself a permissible infringement of the accused’s right to privacy – however, disclosing it to third parties without written authorization of the court would violate accused’s right to privacy, and would make the concerned official liable for dereliction of duty. [Para 15].

The decision in Virendra Khanna has reduced the protection of the zone of privacy in our electronic devices into one governed, not by constitutional standards, but by the search and seizure provisions of CrPC. The Court does no analysis of the implications of using search and seizure provisions designed for physical locations and their use for granting police access to clouds of personal data stored on our devices. By detaching the issue of police searches of mobile phones from testimonial compulsion under Article 20(3) or privacy under Article 21, the Court allows much leeway for investigative misconduct. Even if a search is ‘illegal’ as per the CrPC, seizures from it can still be admissible evidence, and the prosecution can continue to rely on, as they call it, the ‘fruit of the poisonous tree’.

Delayed consideration and the non-communication of rejection of the detenu’s representation against his preventive detention under the National Security Act, 1980 (‘NSA’).

Under Article 22(5), the court highlighted a dual procedural requirement – the detaining authority must communicate the grounds of detention immediately and the detenu must be afforded the ‘earliest opportunity’ of making a representation. [Para 22] The Court further noted that, under Section 8 of NSA, the appropriate authority has an obligation to consider the representation of the detenu at the earliest, uninfluenced by the Advisory Board’s decision. The Government examines whether the order conforms to the law, whereas the Board examines sufficient cause in light of the representation, creating qualitatively distinct duties. [Para 23] Therefore, a delay in considering the detenu’s representation by the State Government until the Advisory Board submits its report is unreasonable. [Para 48] Further, the non-communication of the Central and State Governments’ rejection of the detenu’s representation violates his right to have his representation considered expeditiously, since it includes delays in communication of rejection which may prejudice his ability to make further representations. [Para 53] Owing to these violations, the original order of detention was quashed. [Para 59]

The interpretation of the ‘right to make representation’ to include the right to early communication of decisions on the representation is an important step towards fully securing the former right.

The court held that proceedings under the COFEPOSA are not proceedings before a court, precluding the application of the IEA to a detaining authority’s decision to pass an order of detention. Further, the court held that, since detention is preventive (not punitive) in nature, the detaining authority can consider a wide range of material, including past conduct, circumstances, etc. to determine whether detention is required. Such determinations are administrative in nature and are based on the subjective satisfaction of the detaining authority [Para 17, 18]. Therefore, even confessions under the Customs Act are relevant for the purposes of the authority’s decision, and there is no statutory or constitutional bar against considering them. [Para 19, 20].

Even if the COFEPOSA proceedings are held to be not proceedings before a court, the detention order has significant implications for personal liberty. In such a case, holding that confessions made to an officer under the Customs Act which would otherwise fall under the prohibition in Section 25 of the IEA can alone form “subjective satisfaction” for a detention order ignores the realities that underlie a provision like Section 25.

Delayed consideration and the non-communication of rejection of the detenu’s representation against his preventive detention under the National Security Act, 1980 (‘NSA’).

Under Article 22(5), the court highlighted a dual procedural requirement – the detaining authority must communicate the grounds of detention immediately and the detenu must be afforded the ‘earliest opportunity’ of making a representation. [Para 22] The Court further noted that, under Section 8 of NSA, the appropriate authority has an obligation to consider the representation of the detenu at the earliest, uninfluenced by the Advisory Board’s decision. The Government examines whether the order conforms to the law, whereas the Board examines sufficient cause in light of the representation, creating qualitatively distinct duties. [Para 23] Therefore, a delay in considering the detenu’s representation by the State Government until the Advisory Board submits its report is unreasonable. [Para 48] Further, the non-communication of the Central and State Governments’ rejection of the detenu’s representation violates his right to have his representation considered expeditiously, since it includes delays in communication of rejection which may prejudice his ability to make further representations. [Para 53] Owing to these violations, the original order of detention was quashed. [Para 59]

The interpretation of the ‘right to make representation’ to include the right to early communication of decisions on the representation is an important step towards fully securing the former right.

Mental illness, prisons, Mental Healthcare Act, 2017

Analyzing relevant provisions of Chapter XXV, CrPC, the Court noted that a mentally ill prisoner who is eligible for bail/discharge would have to continue in prison or in a mental health facility unless ‘good samaritans’, usually the friends/relatives of the prisoner, volunteer to care for him. Further, undertrials also continue to be under remand until they are capable of defending themselves in court [Para 7]. The Court stressed on the importance of harmonizing the provisions of CrPC and the Mental Healthcare Act, 2017, including but not limited to, setting up mental health facilities in the medical wing of each prison as per Section 103(6) of the latter [Para 9, 13(1)]. The Mental Health Review Boards must work with the Kerala State Legal Services Authority (‘KELSA’) by providing it with the details of mentally ill prisoners enabling it to trigger judicial action for deserving cases. [Para 12, 13(V)] Further, the KELSA was directed to work with the State Government to trace the relatives of such prisoners fit for rehabilitation. Upon their unavailability, the State Government will take measures to transfer these prisoners and acquitted persons to registered mental health establishments. [Para 13(VI)]

There is a raging, largely undiagnosed and untreated mental health epidemic in our prisons. Prisoners are twice as likely as the general population to die by suicide, and yet 21 states do not have any psychiatrists/psychologists in their prison staff. The Kerala High Court has taken an important first step that must be met with appropriate administrative action and initiative.

The petitioners in this case were serving a life sentence for the offence of kidnapping for ransom. Their applications for premature release were released by the lower court on the grounds that the crime is heinous, the petitioners were not of extremely old age, the informant was apprehensive of their release and that the executive authorities were not in favour of granting a premature release.

The Court had to determine the appropriateness of grounds on which certain prisoners could be released.

The Supreme Court held that the length of the sentence or the gravity of the original crime cannot be treated as the sole basis for refusing premature release. The Court observed that as per Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938, any assessment regarding predilection to commit a crime upon release must be based on antecedents, conduct during the period of incarceration undergone, and the likelihood of abstaining from crime, and not merely on the basis of age or apprehensions of victims and witnesses. In this case, the State had clearly submitted that the conduct of the petitioners had been satisfactory. The Court noted that a balance must be struck between individual liberty and societal welfare. By emphasising the reformative objective of punishment, the Court directed their release.

This case discusses the application of the provision of emergency parole in Maharashtra to convicts under POCSO

The instant case was referred to a three-judge bench of the Bombay High Court by a Division bench on the issue of whether a prisoner convicted under the Protection of Children from Sexual Offences Act (POCSO Act), is eligible to be released on emergency parole during the pandemic in terms of Rule 19(1)(c) of the Maharashtra Prison (Furlough and Parole) Rules, 1959 (The 1959 Rules). In this regard, the bench was tasked with resolving an apparent conflict between two earlier Division Bench decisions that had diverged on the point.

Rule 19(1) of the 1959 Rules which provides for emergency paroles, specifies that prisoners convicted for various economic offences, or bank scams or offences under some Special Acts “like” the Prevention of Money Laundering Act 2002, the Narcotic Drugs & Psychotropic Substances Act (NDPS), the Unlawful Activities (Prevention) Act 1967 (UAPA) etc. would not be eligible for release under this provision. By using the doctrine of ejusdem generis, the Bombay High Court held that the term ‘Special Acts’ is not exhaustive and would include other similar special legislations where the offences are serious. The Court held that the offences under the POCSO Act fell within the category of “serious offences affecting society at large” and held that POCSO convicts would not be entitled to emergency parole in light of the COVID-19 pandemic.

This case discusses the grounds on which the Sentence Review Board may refuse to grant premature release.

The petitioner was a life convict who had filed an application for premature release after having spent almost 20 years of actual imprisonment. His application for premature release had been rejected on at least 7 previous occasions by the Sentence Review Board. He filed the present petition against the order of the Sentence Review Board.

The Court held that it wasn’t sufficient to refuse premature release by merely stating that the offence committed by an accused was serious and that the victim’s family members had raised objections. Rather, the Board was also required to consider whether the sentence awarded was sufficient and commensurate to the crime committed by the petitioner. In granting the application, the Court noted that the reformative element involved must also be taken into account while deciding on release. In this case, the Board had itself recorded that the petitioner’s conduct during parole had raised no complaints from witnesses, or the family members of the victim.

This case focuses on the emergency release of prisoners sentenced to long imprisonment terms under the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959.

COVID in Prisons, Emergency Parole and Furlough, Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959

The petitioners in this case were convicted of various offences under the Indian Penal Code (IPC) and were sentenced to life imprisonment along with six additional years. While appealing their conviction, one of the accused appellants died while in jail. The petitioners then sought to be released on emergency parole on account of the spread of the pandemic within the prisons in Maharashtra. However, their applications were rejected.

The Bombay High Court acknowledged that the object of granting emergency parole under the amended Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 was s to reduce overcrowding in prisons. However, it held that habitual offenders or prisoners who are likely to abscond could not be granted emergency parole. The Court then clarified that the amended Rules, which laid down that if such convicts were never previously released on parole or furlough two times, then there could be no occasion for them to return within the prescribed time limit. Therefore, they could not be considered for emergency parole. The Court opined that the condition imposed by the amended Rules would not apply in such cases.