Uncategorized

Important Judgement list for CLAT PG2021

The following table shows important judgement delivered by Supreme Court up to 31st August, 2020. These are very important for CLAT PG 2021. New judgement will be added to the table in due course of time.

Category Judgement Amendment
Reservation Jarnail Singh
B.K Pavitra I 103rd Amendment and reservation for EWS
B.K. Pavitra II
Chebrolu
Mukesh Kumar v State of Uttarakhand
Siddaraju vs The State of Karnataka
Judgements on criminal law Vinubhai Haribhai Malviya
Sushila Agarwal
Babasaheb Maruti Kamble
Shilpa Mittal
Ritesh Sinha v State of UP
Kashinath Mahajan SC ST (PoA) Act, amendment
Prithvi Raj Chouhan POCSO amendment, 2019
Union of India v State of Maharashtra (Review Judgment)
Arnab Goswami v Narendra Damodar Modi
Nevada Properties v State of Maharashtra
Mazdoor Kisan Shakti Sangathan v Union of India
Anokhi Lal vs. State of M.P
Parminder Kaur @ P.P. Kaur @ Soni vs State of Punjab
Freedom of expression Anuradha Bhasin Repeal of Art. 370 vide presidential order
Foundation for Media professionals v Union Territory of J & K Jammu and Kashmir Re-organization Bill
SHAH FAESAL vs. UNION OF INDIA
Romila Thapar v UoI
Shyam Narayan Chawksey vs. UOI
Indibility Creative Pvt Ltd v West Bengal
Afzal Ansari & Ors. v. State of UP & Ors.
Right to freedom of religion Sabarimala
Kantaru Rajeevaru
Review of Kantaru Rajeevaru
Right to life Indian Hotel and Restaurant Association Transgender Act, 2019
Navtej Singh Johar
Joseph Shine
Shayara Bano Muslim Women (Protection of Rights on Marriage) Act, 2019
Hadiya Marriage case
Common cause
Tehseen S poonawalia v Union of India
Kamil Siedczynski v Union of India
Anti-defection cases and Members of legislative assemblies Shrimant Balasaheb Patil
Kiohoto Hollohan 104th Amendment related Anglo Indians
Shivaraj Singh Chahuan
S. Nambi Narayan v siby Mathews
Rambabu Singh Thakur v Sunil Arora
Public Interest Foundation vs. UOI
Keishmchand
Ashwini Kumar Upadhyay vs. UOI and Ors.
Shiv Sena v Union of India
Social action forum v Union of India
Federalism Govt. of NCT of Delhi v Union of India
Banking Law/ RBI and Article 246 onwards (legislative power) Pandurang Ganpati Chaugule and others V. Vishwasrao Patil Murgud Sahakari Bank Limited Banking Regulation (Amendment) Bill, 2017
Cryptocurrency – INTERNET AND MOBILE ASSOCIATION OF INDIA vs. RESERVE BANK OF INDIA
West U.P. Sugar Mills Association & Ors. V. The State of Uttar Prades & Ors.
Nirbhaya Case and Kathua rape case Mukesh v State (NCT of Delhi) Criminal Amendment 2013
Pawan Kumar Gupta V State Criminal Amendment 2018
vinay Sharma V State
MUKESH KUMAR vs. STATE OF UTTARAKHAND
Md Akhtar v State of Jammu
Art. 145 Swapnil Tripathy
Jurisdiction of Supreme Court Rajendra Diwan / CG rent control act
Rafale Related cases Manohar Lal Sharma
Yeshwant Sinha v CBI and its review
Minority education institution NEET
Md Rafique
Chandana Das
IBC/ Company Law Swiss Ribbon IBC Amendment, 2020
Essar case Company Law Amendment, 2019
M/s Embassy Property Developments Pvt. Ltd. v State of Karnataka
Cyrus Investments Pvt. Ltd. & Anr vs Tata Sons Ltd.
Gaurav Hargovindbhai v Assert Reconstruction Company
Employees State Insurance Corporation vs. Venus Alloy Pvt. Ltd.
Ritu Bhatia vs. Ministry of Civil Supply Consumers affairs and public distribution
J. K Jute Mills Mazdur Morcha vs. Jugilal Kamlapat Jute Mills
Land Acquisition Indore Development Authority v Manoharlal
Tax Law Mohit Mineral GST and Taxation Amendment Act, 2019
UOI vs. Unicorn Industries
Unicorn Industries v UoI
Britannia Industries Ltd. vs. Bombay Agriculture Produce Marketing Committee
Steel Authority of India vs. Commissioner of Excise Tax
The Great Eastern Shipping Corporation Ltd. vs. State of Karnataka
Environmental law Alembic pharmaceuticals ltd vs. Rohit prajapati EIA Draft Notification, 2020
Hanuman
Hanuman Laxman Aroskar v UoI, 2019
Hanuman Laxman Aroskar v UoI, 2020
Tamil Nadu Pollution Control Board vs. Sterlite Industries
Keystone Realtors Pvt. Ltd. vs. Shri Anil Tharthare and Ors.
Arjun Gopal v Union of India
RTI DAV college trust and Management v Director of Public Instructions RTI Amendment, 2020
Evidence Act Kalpana Mehta
Arjun panditrao khotkar v kailash kushanrao gorantyal and ors
Privy Purse case and Shebaitship SRI MARTHANDA VARMA (D) THR. LRs. v State of Kerala
M Siddiq v Mahant Suresh Das
Citizenship

 

Abdul Kadus v UoI Citizenship Amendment Act, 2019
Article 136 Khoday Distillaries vs. Madadeshwar Sahakar
Torts Vidya Devi vs. The State of Himachal Pradesh
Mr. Krishna Murti vs. New India Assurance Co. Ltd
Hemlata Verma vs. ICICI Prudential Life Insurance Co. Ltd.
Shalini Lambah vs. M/S Unitech Ltd. and Ors.
Maharaja Agarsen Hospital vs. Master Rishabh Sharma
Dr. Rajesh karan II vs. Unon of India and Ors.
 

Arbitration

Jaiprakash Associates Ltd. v Tehri Hydro Development Corporation India Ltd. Arbitration Amendment, 2019
Garware Wall Ropes Ltd. v Coastal Marine Construction Engineering Ltd.
Bharat Broadband Network Ltd. vs. United Telecom ltd.
Sterling Industries vs. Jaiprakash Associates
Hindustan Construction Co. Ltd. vs. UOI
National Highway Authority of India v Gammon Engineers and Contractors
KSEB vs. Kurein Kalathil
BGS SGS Soma JV v NHPC
Labour Law Birla Institute Technology vs. State of Jharkhand
Service Records Factory Manager Kirloskar Brothers vs. Laxman Code on Wages, 2020
Hindustan Sanitaryware and Industries Ltd. vs.State of Haryana
Kerala State Beverages Corporation Ltd. vs. PP Suresh & Ors.
Family Law Perry Kansagara vs. Smitti Madan Kansagara Personal Law Amendment, 2019
Md. Salim vs. samsuddin and Ors.
Ganesh vs. Sudhir Kumar Srivivastava
Kareena Jane Creed vs. UOI
Pharej John Abraham vs. Arul Jyoti Shiva Subramaniam
Ashnoor Singh vs. Harpal Kaur and Ors.
Jose Paulo Cautinho vs. Maria Valentina Perriara
Md. Abrar vs. Meghalaya Board of Wakf
Amardeep Singh vs. Harveen Kaur
Chand Devi Daga v Manju K Humatani
BHASKAR DAS v Renu Das
Rana Nahid v Sahidul Haq Chisti
Arunkumar Sreeja v Inspector general of Registration 2019
Representation of People Act Abhiram Singh v. C. D. Commachen
Ordinance Making Power Krishna Kumar Singh v State of Bihar
NI Act Surinder Singh Deswal v. Virender Gandhi – 2 judgments Negotiable Instruments (Amendment) Act, 2018
G.J Raja v. Tejraj Surana
International Law Enrica Lexie
Pakistan v India

 

Standard
Judgement Summary

Vinubhai Haribhai Malaviya v. State of Gujarat 2009 SCC OnLine SC 1346

Bench – R.F. Nariman J., Surya Kant J., V. Ramasubramanian J.

The position of Law changed–  Magistrate can direct investigation by police u/s 156(3) of CrPC  post cognizance stage

The facts in brief –

  1. On a case of fraud and land grabbing FIR was registered and charge sheet was submitted to the court for trial
  2. Cognizance was taken and summons were issued for appearance
  3. Accused persons filed a petition with the magistrate to (a) discharge him and (b) order further investigation under s. 173(8) of CrPC
  4. The magistrate rejected all those petitions.
  5. The Accused persons filed a criminal miscellaneous petition praying for order police to register FIR u/s 156(3). This was rejected by the magistrate.
  6. Revision applications were filed in the Sessions’ court and the Sessions’ court held that further investigation needed to be done without filing a fresh FIR.
  7. Pursuant to the said other, the case was handed over to the police and two further final forms were submitted directly to the sessions’ court.
  8. The High Court ordered that the magistrate does not have power to direct further investigation u/s 156(3) of CrPC post cognizance stage
  9. The question before the Supreme Court was whether further investigation can be ordered after cognizance is taken

Issue before the court – Whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding

Findings of the Court-

  1. CrPC is divided into 37 chapters. The present case is related to Chapter XII to XVII.
Chapter- XII Information to the Police and their Powers to Investigate  
Chapter- XIII Jurisdiction of the Criminal Courts in Inquiries and Trials  
Chapter- XIV Conditions Requisite for Initiation of Proceedings  
Chapter- XV Complaints to Magistrates  
Chapter- XVI Commencement of Proceedings before Magistrates  
Chapter- XVII The Charge  
Chapter- XVIII Trials before a Court of Session  
Chapter- XIX Trial of Warrant-Cases by 11 Magistrates  
Chapter- XX Trials of Summons-Cases by Magistrates;  
Chapter- XXI Summary Trial
  • The sections of CrPC such as S. 156,  S. 173, S. 190, S. 200, S. 202, S. 204 are used in the present case. They are reproduced here for the ease understanding. The reading of the section shows that, there is a neat distinction between be the power of police to investigate and the jurisdiction of courts in inquiry.
  • S. 156 deals with the investigation with respect to cognizable offences. Cognizable offence is defined under S. 2 (c) of CrPC. It says,

“cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

The expression “complaint” is defined in Section 2(d) as follows:

“complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

“Inquiry” is defined in Section 2(g) as follows:

“inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

“Investigation” is defined in Section 2(h) as follows:

“investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

  • Investigation is a stage before the trial commences and the purpose is to collect evidence. Investigation which ultimately leads to a police report under the CrPC is an investigation conducted by the police, and may be ordered in an inquiry made by the Magistrate himself in “complaint” cases.
  • The old CrPC did not have the provision for further investigation after the charge sheet is filed. 41st Law commission Report recommended addition of provision of further investigation. The logic behind such recommendation was:

A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fresh material must of course be furnished to the accused.”

  • Right to fair trial is accepted in Maneka Gandhi (1978) and Commissioner of Police V. Registrar, Delhi High Court New Delhi (1996). Art. 21 can be violated only by procedure established by law in a fair trial. A fair trial entails from a fair investigation. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.
  •  Pooja Pal v. Union of India (2016) was referred in which it was held speedy trial must be tempered by fair trial. In the same case the court held that trial includes inquiry, investigation, trial, appeal and retrial etc. After the introduction of S. 173(8) police has been given the power of further investigation till the end of trial.  The question with the court is if police can investigate till the end of the trial then does court have the power to order investigation till the end of the trial?
  • The relationship between the police and the magistrate was discussed Kamalapti Trivdedi v WB (1980) where citing Abhinandan Jha V Dinesh Mishra (1967) the court held that : magistrate’s power has two facets: (a) executive and (b) judicial. If he accepts police charge sheet or the closure report then the magistrate uses his judicial power but if he returns the case for further investigation he uses his executive power as supervisor of investigation process.
  • In State of Bihar v  J. A. C. Saldhana (1980) it was held that S. 156(3) and S. 173(8) are independent of each other and the power of magistrate under S. 156(3) does not infringe the power of police. It may be reminded that the clause 8 of 173 was added in the new code but no corresponding change was made in S. 156(3). In Sakiri Vasu v state of UP (2008) it was held power of magistrate under S. 156(3) was very wide in nature and it included everything that was necessary for the investigation.
  • But in Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) which was followed in Tula Ram & Ors. V Kishore Singh (1977) the court held that the power under S. 156 (3) can be invoked only before the cognizance is taken. After cognizanceis taken, any power whatsoever is to be effected through S. 202 of CrPC. This was not the correct position of law because of the following grounds.
  • The definition of investigation has changed in the new code. Now new code S. 2(h) defines all the process of under CrPC as investigation. The word ALL was not present in the earlier code. It means investigation is not limited to the pre-cognizance stage. It goes to post cognizance stage also because it means all the process under CrPC i.e. from FIR till framing of charges. Ram Lal Narang v State (NCT of Delhi)  (1979) citing  H.N. Rishbud v State of Delhi (1955) had held that there was no limitation to further investigation once charge sheet was filed and cognizance was taken. In Hasanbhai valibhai Qureshi v State of Gujarat (2004) the court held that further investigation could not be denied in post cognizance stage because the trial might get delayed. In UPSC v Papaiah( 1997) the court held that the magistrate could direct further investigation u/s 173(8) of CrPC.
  • The case of Vinay Tyagi V. Irshad Ali & ORs (2013) was discussed in detail in the present case.
    • Investigation can be of three kinds
      • Initial investigation
      • Further investigation
      • Fresh or de novo or reinvestigation
    • The question was whether magistrate could order further investigation u/s 173 (8) of the code.
      • Referring Hemant Dhasmana v. CBI [(2001)] where the Court held that although the said section does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court’s revision jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the Magistrate, in exercise of powers under Section 173(8) of the Code can direct CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the investigating officer, would be governed by sub-section (2) to subsection (6) of Section 173 of the Code.
      • The Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct “further investigation” and require the police to submit a further or a supplementary report. A three Judge Bench in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) also held this.
      • Many other cases including three judge bench in Reeta Nag v W.B. (2009) opposed the above view and held that the magistrate cannot direct further investigation.
    • So the court decided that: –
      • The Magistrate has no power to direct “reinvestigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report.
      • A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code.
      • The view is in conformity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three Judge Bench and thus in conformity with the doctrine of precedent.
      • Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
      • The Code is a procedural document; thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to con
      • . It has been a procedure of propriety that the police have to seek permission of the court to continue “further investigation” and file supplementary charge sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.”
  • In the present case Hardeep Singh v. State of Punjab ( 2014) ( 5 judge) was referred which discussed investigation, inquiry and trial.
    • In view of the above, the law can be summarized to the effect that as “trial” means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the “trial” commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.”
    • Section 2(g) CrPC and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under CrPC by the Magistrate or the court. The word “inquiry” is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.”
  • However, the ratio of the Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) was followed in Amrutbhai Sambhi bhai Patel v Gujarat, Atul Rao v State of Karnatak and Bikas Rout v NCT  and held that the magistrate has not power to further direct investigation. The power lies with the police under S. 173(8) alone. The above position was clearly wrong because the trial had not started yet. The trial starts as per Hardeep Singh case after framing of charge. So till the time the charge is not framed, trial cannot be said to have commenced. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding,

[Babubhai v. State of Gujarat & Ors. (2010) 12 SCC 254, is a judgment which distinguishes between further investigation and re-investigation, and holds that a superior court may, in order to prevent miscarriage of criminal justice if it considers necessary, direct investigation de novo, whereas a Magistrate’s power is limited to ordering further investigation. Since the present case is not concerned with re-investigation, this judgment also cannot take us much further.

Romila Thapar v. Union of India, (2018) 10 SCC 753, held that an accused cannot ask to change an investigating agency, or to require that an investigation be done in a particular manner, including asking for a court monitored investigation/] à the above two cases are not relevant in the case but important nevertheless.

Finally the court held that :-

  1. Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) Amrutbhai Sambhi bhai Patel v Gujarat, Atul Rao v State of Karnatak and Bikas Rout v NCT are over ruled.
  2. Magistrate can order under S. 156(3) at post cognizance stage also

Standard
Judgement Summary, Uncategorized

Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine SC 98

Issue before the court

  1. Whether the protection granted to a person under S. 438 CrPC should be limited to a fixed period so as to enable him to surrender before the trial court and seek regular bail
  2. Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to the court

Major case referred in this case.

  1. Gurubaksh Singh Sibbia v State of Punjab (1980) -à Constitution bench decision 
  2. Salaludin Abdulsamad Sheikh v State of Maharashtra (1996) and other cases following its ratio
  3. Sidhram Satlingapa Mehtre V State of Maharashtra (2011) and other cases of the following its ratio

Background of the Review petition-

  1. Anticipatory bail is not defined in the original code. The provision of anticipatory bail was introduced in the 1973 code.
  2. A group of cases starting from Salaludin Abdulsamad Sheikh state that anticipatory bail should contain some conditions either with reference to time or an event such as filing of charge sheet etc. After that condition is satisfied the accused should surrender to court and seek regular bail.
  3. The other group of cases starting from Sidhram Satlingapa Mehtre state that, no condition ought to be imposed by the court while granting the anticipatory bail because it was to inure and protect the individual even if the charge was framed and trial started.
  4. However, Sibbia case does not provide for such inflexible approach of either line. The Court held in Sibbia that, imposing condition was an issue of fact. Court could impose condition as per the circumstances of each case.
  5. The present case settled all these issues.

The logic in Sibbia

  1. Sibbia referred the 41st law commission report to trace the genesis of the anticipatory bail. As per the recommendation of the 41st Law commission report, the provision of anticipatory bail was introduced in the code. The reasoning given in the report are quoted below.
    1. Sometimes, influential persons try to implicate their rivals in false cases for the purpose of disgracing them and put in jail. Political rivalry has accentuated the problem and hence a provision of pre-arrest bail needs to be introduced.
    1. This is a special power and to be vested only with Court of Sessions or the High Court
    1. The power to be exercise with DISCRETION of the court and the courts should take care that such use of power / discretion does not vitiate the process of fair trial
    1. The final order should be made only after notice to the public prosecutor
    1. The reason for granting such bail must be recorded in writing
  2. Sibbia said the provisions of S. 438 (Anticipatory bail) should not be interpreted in a narrow and restricted manner. Having, said this, the court in Sibbia held the following as quoted below.
    1. The court can impose conditions while granting anticipatory bail, as it is inherently provided in the text of S. 438.
    1. However, the power to impose conditions cannot be restricted or expanded by interpreting statute. It is actually a matter of facts and circumstances of the case
    1. The courts are free to exercise their judicial discretion in granting anticipatory bail imposing such conditions as the facts of the case warrant.
    1. No generalization can be made
  3. The question of anticipatory bail interfering with the investigation process came to be discussed in the Sibbia case. It was held following King Emperor v. Khwaja Nazir Ahmed (1945) that police and court function in complementary manner and not overlapping manner and judiciary should not interfere in the matters of investigation. A question came to fore, if an accused was granted anticipatory bail, then how police could exercise the provisions of S. 27 of Indian Evidence Act. The Court in Sibbia referred State of UP v Deoman Upadhayay (1960) and held that the phrase “taken to custody” was a wider term. That never meant arrest. If a person voluntary came to police and offered to give information leading to discovery of a fact having a bearing of him subjected to a criminal charge, he was said to have surrendered to police. Anticipatory bail was granted as a protection against arrest. Nothing prevented the person to whom bail was granted to appear before the police or surrender before police and give his confessional statement.
  4. On the question of “s. 438 being an extraordinary provision” the court held the power under S. 438 was definitely extraordinary in nature but that never meant it was to be used only in exceptional cases. It was a discretionary power with the higher courts and to be exercised with due care and caution depending on circumstances justifying its exercise.
  5. About conditions to be imposed the court in Sibbia held, S. 438 concerned with the life and liberty of the person and hence, over generous infusion of constraints and conditions which were not found in S. 438 itself was not acceptable. The beneficent provision of S. 438 must be saved.
  6. The Court in Sibbia also provided that certain conditions need to be satisfied before the higher courts use their discretion to use their power to grant Anticipatory bail. The conditions are quoted below.
    1. Applicant must provide that he had a reason to believe that he might be arrested in a non-bailable case. The reason must have backing of facts and must not be a mere fear
    1. Court of Session or High Court must apply their mind to find out whether a prima facie case was made out for use of S. 438
    1. Filing of FIR was not condition precedent to use of S. 438. Application of Anticipatory bail could be entertained and granted even if there was no FIR.
    1. Anticipatory bail could be granted till the time the person was not arrested.
    1. The provision could not be invoked after the arrest
    1. A blanket order of anticipatory bail was not be made because it might interfere with the rights and duties of police officers. It was the discretion of the courts to use the power. Based on the facts of the case, the court might impose conditions including a condition of time. But such conditions were to be imposed as per the facts of the matter and in certain exceptional cases.

The logic of Salaluddin and other similar cases

  1. During the grant of anticipatory bail, the evidence at hand was not decided and hence, the grant of anticipatory bail had to be limited to duration only and ordinarily at the expiry of that duration the court granting anticipatory bail should leave to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet was submitted.
  2. Furthering this logic, in K.L. Verma v State it was held, grant of bail under S. 438 did not bypass the provision of S. 437 and the person to be under protection of S. 438 till the regular bail application was disposed of.
  3. In Sunita Devi, Nirmal Jeet Kaur and Adri Dharan Das used the ratio of Salaludin and held that the protection granted under S. 438 could not be extended beyond the time period indicated in Salaluddin or till the applicant availed remedies from High Court. (Getting remedies from the High Court means the lower courts are legally bypassed). Once Charge Sheet is submitted against a person having the protection of anticipatory bail, he ought to surrender before the court and seek regular bail.

The logic of Mehtre and other similar cases

  1. Mehtre held that the findings of Salaluddin and others were contrary to the findings of the constitutional bench in Sibbia and restriction on grant of anticipatory bail was not necessary. Citing Sibbia, the court held that while decided as per S. 438 there was no justification in reading into the conditions mentioned in S. 437.
  2. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intent and the judgment of the constitution bench at any point of time.
  3. Hence, held that the judgement of Salaluddin was contrary to the spirit of Anticipatory bail and had resulted in artificial and unreasonable restriction on the scope of enactment contrary to the legislative intent.
  4. The Court prescribed certain factors and parameters to be taken into consideration before deciding the question of anticipatory bail
    1. Nature and gravity of accusation and the exact role of the accused
    1. The criminal antecedent of the applicant 
    1. The possibility of the person fleeing from justice
    1. The possibility to commit similar such offences
    1. Whether the accusations have been made only with the object of injuring or humiliating the applicant
    1. Impact of anticipatory bail on society at large
    1. The court should clearly weigh the exact role of the person
    1. Balance to be struck between free and fair investigation and unjustified arrest
    1. The chance of tampering with evidence and threat to witnesses
    1. Element of genuine ness to be considered while deciding the matter

The decision in the present case

  1. There are two different lines of precedents and hence the incongruity needs to be settled.
  2. Various arguments are-
    1. Bail is the general rule and jail is an exception ( Datarams Singh V. State of UP)
    1. Anticipatory bail is the panacea for apprehension of arrest
    1. The discretion to set condition lies with the court as per the circumstances of each case and cannot be interpreted to court short its duration till the filing of charge sheet.
    1.  A logical deduction was made with respect to S. 167 (2) and statutory bail. If final form is not submitted within 60 days or 90 days the accused inside the judicial custody is granted automatic bail. However, if the charge sheet the filed then the same bail is not canceled. Hence, a protection of anticipatory bail should not go in the event of filing a charge sheet.
    1. The power of arrest is not to be exercised mandatorily as per Joginder Kumar v State of UP, Lalita Kumari v State of UP, Arnesh Kumar v State of Bihar. Even M.C. Abraham v State of Maharashtra states, police is not mandatorily required to arrest if the anticipatory bail is rejected.
  • Amicus Curie in the case provided a guideline for the grant of bail application
Stages S.O.P. for court
Before FIR Condition imposed till filing of FIR
After FIR before charge sheet Condition imposed till filing of charge sheet
After filing Charge Sheet Discretion of Court
  • Sibbia did not totally exclude the imposition of conditions. However, Mehtre said conditions could not be imposed. So Salaluldin was more close to the ratio of Sibbia than Mehtre.
    • There was an argument against the order of anticipatory bail because it thwarted custodial interrogation. Reliance was placed on State of A.P. V Bimal Krishna Kundu , Muralidharan V state of Kerala for the above proposition.
    • Jai Prakash Singh v State of Bihar was relied upon wherein it was held that anticipatory bail was not essential elements of Art. 21.
  • Reasoning of the court –

A. Whether the protection granted to a person under S. 438 CrPC should be limited to a fixed period so as to enable a person to surrender before the trial court and seek regular bail

  1. S. 438 was included as. Curative measure to deal with the problem of unwarranted arrest.
    1. It is not hedge with any obligation on the court’s power to impose conditions
    1. The only bar or restriction imposed by parliament upon the exercise of the power (to grant anticipatory bail) is by way of a positive restriction, i.e. in the case where accused are alleged to have committed offences punishable under section 376 (3) or sections 376AB or Section 376 DA or Section 376 DB of the penal code.
    1. Parliament by law has restricted the power of the courts in certain cases such S. 376 AB, S. 376DA, S. 376 DB.  It means that parliament does not want to restrict the power of anticipatory bail of court by a blanket order and exhorts to take up in case to case basis.
    1. The text of the statue does not say, that the parliament has required the court to impose conditions. It was left with the discretion of the court to impose condition on a case to case basis. The court relied on the concept of interpretation of statues is Reserve Bank of India v Peerless General Finance and Investment CO ltd and Chandra Mohan v State of Uttar Pradesh and states that, “interpretation must depend on the text and the context. No part of statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place an everything in its place.”
    1. Similarly, in Directorate of Enforcement v Deepak Mahajan, State of Haryana v Sampuran Singh the court held that by no stretch of imagination a judge can add to something more than what is there in the text of the statute which shows the intent of the legislature.
    1. Deoman Upadahya case says bail is not a hindrance to custodial examination and S. 27 of Indian Evidence Act. Same logic was imposed in Vallabh das Liladhar v. Asst. Collector of Customs
    1. Hence, there is no logic that if conditions are not imposed, fair investigation will be compromised. And hence court held that
      1. The observation of Sallaluddin that indicate ‘such time related or investigative event related conditions should invariably be imposed at the time of grant of anticipatory bail’ are therefore over ruled.
      1. The observation in Mhetre “ the courts should not impose restrictions on the ambit and scope of S. 438 which are not envisaged by legislature. The court cannot rewrite the provisions in the statute in the garb of interpreting it” is too wide and overruled.  The court held, as per Sibbia conditions can be imposed as per the facts of the case.

B. Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to the court

  1. The logic of Gurhsaran Singh case about statutory bail referred above was followed. Hence filing of charge sheet cannot be a limiting condition for respite of bail.
  2. Taking into custody is still permissible even after grant of bail, because as per Pradeep Ram case, without cancelling of bail on relevant consideration, the court can direct the arrest of the accused.
  3. The court held that unless circumstances to the contrary: in the form of behavior of the accused suggestive of his fleeing from justice or evading the authority of jurisdiction of the court, or his intimidating witness or trying to intimidating them, or violate any condition imposed while granting anticipatory bail, the law does not require the person to surrender to the court on summons of trial being served on him. Subject to compliance with the conditions imposed, the anticipatory bail given to a person can continue till the end of trial.

The guidelines provided to deal with S. 438

  1. There is no limitation of the time of filing anticipatory bail. It can be filed before FIR also. There has to be reasonable apprehension about the arrest.
  2. The court even while granting limited anticipatory bail may issue notice to public prosecutor and obtain facts
  3. S. 438 does not compel to impose conditions. Imposition of conditions has to be decided on the facts and circumstances of the case
  4. Courts ought to be guided by nature and gravity of the crime before deciding on anticipatory bail.
  5. Once granted the anticipatory bail shall remain in force till end of trial depending on the conduct and behavior of the accused. The anticipatory bail is not a blanket protection.
  6. Order of Anticipatory bail does not restrict the rights and duties of the police officer to investigate into the charges.
  7. Limited custody or deemed custody provided in Sibbia is sufficient for the provision of S. 27 of Indian Evidence act
  8. If any terms or conditions are violated the prosecution can move to court to cancel the anticipatory bail
  9. The correctness of grant of anticipatory bail can be decided on appeal to higher court at the behest of investigating agency
  10. Sallaludin is overruled to the extent that no condition or term limiting the grant of anticipatory bail to a period of time can be given. Mehtre is overruled to the extent that no restrictive conditions can be imposed while granting the anticipatory bail.
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Judgement Summary

Kantaru Rajeevaru v Indian Young Lawyers Association Through its General Secretary Ms. Bhakti Pasrija

Bench – 9J – S A Bobde, R Bhanumati, Ashok Bhushan, L Nageshwar Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai, Surya Kant JJ.

Decided on – 11th May 2020

Decided under inherent jurisdiction of the SC. This was a review based upon the maintainability of the reference to a larger bench when review of Sabarimala case was still pending.

Brief Facts –

  • Indian Young Lawyers Association filed Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. They demanded to direct the respondents to allow women between the age group 10-50 to worship in the Ayyappa Temple. A3 J bench of this Court referred the matter to a larger bench of 5J.
  • In Sabrimala  in a 4:1 majority it was held that the devotees of Lord Ayyappa did not constitute a separate religious denomination and couldn’t claim the benefit of Article 26. Exclusion of women between the ages of 10 to 50 years from entry into the temple was violative of Article 25 Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was declared as violative of Article 25 (1) as well as ultra vires Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
  • Ranjan Gogoi CJ, and A.M. Khanwilkar J. and Indu Malhotra J. held that the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution needed an authoritative pronouncement by a larger bench of not less than seven Judges. They also held that the contours of judicial review in matters pertaining to essential religious practices needed to be authoritatively established. Conflict of opinion between the judgments in Commissioner Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt, 1954, and Durgah Committee, Ajmer vs. Syed Hussain Ali, 1962 pertaining to the role of the Court in matters which are essential religious practices needs to be harmonized.
  • R.F. Nariman J. and D.Y. Chandrachud J. dissented and held that there was no requirement for the review.

Continue reading

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Judgement Summary

Kantaru Rajeevaru v Indian Young Lawyers Association through their General Secretary & Ors

Bench – Ranjan Gogoi Cj., A.M. Khanwilkar J., Indu Malhotra J, (all in favor); D. Y. Chandrchud J., R F Nariman J. (both dissenting)

Issues –

  1. What is essentially religious, essential to religion and integral part of the religion?
  2. Can the matters already sub-judice, i.e. entry of Muslim woman into Durgah/Mosque, entry of Parsi woman married to non-Parsi persons into the holy fire, female genital mutilation in Dawoodi Bohra committee clubbed together and matter be referred to higher bench?

Majority Judgement – All matters to be clubbed together and referred to a higher bench Continue reading

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Judgement Summary

Indian Young Lawyers’ Association (in Re Sabrimala) v State of Kerala

 

Bench- Deepak Mishra CJ, Khanwilkar J., D.Y, Chandrachud J., Nariman J. (Concurring), Indu Malhotra J. (Dissenting)

Issue:

  1. Whether exclusion of women in the menstrual age (biological factor) violates Art. 14, 15 or 17 or protected by “morality” under Art. 25 and 26.
  2. Whether exclusion of woman is an essential religious practice
  3. Whether Ayyapa Temple is a denomination? if it is a denomination can it violates Art. 14, Art. 15, Art .17 despite getting fund from consolidated fund of the state?
  4. Can religious denomination violate Art. 14, Art. 15 and Art. 17 on the ground of sex?
  5. Whether the temple entry Act and rule violative of Part III of the constitution?

Arguments- Continue reading

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Uncategorized

Road Ahead for CLAT PG 2021

The year 2020 will remain in infamy for students seeking Masters’ degree in Law from NLUs. Apart from the “CLAT/NLAT controversy” and the ” wrong answers” in the answer key, which already have been discussed in this blog, the change of pattern for the examination was THE important factor which caused maximum stress among the students. The press briefing of the consortium announced that questions will be asked from the excerpts of judgments. But the sample papers showed, the questions might not come from the paragraph. So a reading of the judgement was necessary. But as the final answer key showed, the ratio of judgement did not matter; what mattered was the interpretation of the makers of the question. Let’s hope CLAT PG 2021 becomes less controversial.

In this blog , a new initiative is being started. Summaries of important judgements of the Supreme Court delivered in last two years will be published for the benefit of the students. Having said so, it is clarified upfront that mere reading of summaries will not help much. One needs to go through the judgement thoroughly and use the summary for revision purpose. The sections will be updated regularly for adding new summaries.

Another idea is to put up analytical pieces on contemporary development of law as part of weekly despatches. Hope this will help the stake holders!

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