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NAVTEJ SINGH JOHAR V. UNION OF INDIA [WP (CRIMINAL)] NO. 76 OF 2016

June 22, 2021 Team Attorneylex Leave a comment

This Case Summary is written by Reetambhar Kumar Das, a student at Adamas University, Barasat, Kolkata

SYNOPSIS

“Equality means more than passing laws. The struggle is really won in the hearts and minds of the community where it really counts”- Barbara Gittings.

Section 377 of Indian Penal Code, 1860 was inserted in order to punish the offence of sodomy, buggery and bestiality. The offence basically consists of carnal intercourse beyond the nature, i.e. any intercourse which is not a penile-vagina intercourse. To punish someone under this Section two ingredients are necessary-

1. Carnal intercourse

2. against the order of nature.

This section also includes any unnatural intercourse with any man, woman or animal.

The provisions have been challenged before various courts in order to get the section decriminalized as well as the rights of the LGBTQ are recognized.

It is the duty of the State to protect the right and dignity of every person of our society. As we claim our country to be a developing country the society cannot remain unmindful to the theory of homosexuality which is researched by many scholars, biological and psychological science.

BACKGROUND

The case originated in the year 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T of Delhi held Sec 377 to be unconstitutional, in so far as it pertains to consensual sexual conduct between two adults of the same sex. Later in 2014, a two judge bench of the Supreme Court overturned the Delhi High Court decision. When the petition of 2014 was challenged before the three- judge bench in the year 2016 the Supreme Court held that a larger bench must answer the issues raised and thus the case was referred to five bench judges.

In the year 2016, Navtej Singh Johar who is a renowned dancer filed a writ petition before the Honourable Supreme Court in 2016 seeking recognition of the right to choose sexual partner to be a right under Article 21 of the Indian constitution. Furthermore claiming Sec 377 of Indian Penal Code should be declared unconstitutional as it was violative of Article 14 of the Indian Constitution.

On 6th September 2018, the judgment was given by a five bench judge bench comprising of CJI (now former) Dipak Misra, Justice R.F. Nariman, Justice D.Y. Chandrachud, Justice A.M Khanwilkar and Justice Indu Malhotra.

FACT OF THE CASE

A writ petition was filed by a dancer Navtej Singh Johar, who belonged to LGBTQ community. The Bench overruled Suresh kumar Koushal v. Naz Foundation and others (2013) judgment. In this particular case constitutional validity of Sec 377 of IPC was upheld. The Court not only did find that Suresh Koushal failed to recognize how Sec 377 violates fundamental rights, but further stated that it relied on a constitutionally impermissible rationale.

The issue regarding decriminalizing Sec 377 was first raised by an NGO named Naaz Foundation, which had in 2001 approached the Delhi High Court for decriminalizing sexual act between two consenting adults of the same gender. This 2009 judgment was overturned in 2013 by the Supreme Court.

The status of identity of the transgender was first luculent in the case of National Legal Services Authority v. Union of India and others.

ISSUES OF THE CASE

The main issue before the Court was to decriminalizing sec 377 IPC and to recognize the rights of LGBTQ community.

The issues are categorized as follows-

1. Whether judgment given in Suresh Kumar Koushal v. Naaz Foundation was proper or not.

2. Whether sec 377 of IPC violates Art 14 and Art 15 of Indian Constitution or not

3. Whether Sec 377 is against Right to privacy which is a fundamental right or not.

CONTENTIONS

The petitioner of the case contented that homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process of a person’s autonomy. Hence as a person’s dignity and decisional autonomy is hampered it is a clear violation of Art 21 of Indian Constitution. It is further argued that their growth of personality, relation building endeavour to enter into a live-in relationship or to form an association with a sense of commodity have become a mirage and the essential desires are crippled with violates Art 19 (1) (a) of Indian Constitution. Art 15 of the Indian Constitution is also violated because as the provision forbid discrimination on ground of “Sex” it would also include Sexual orientation of an individual.

On the other side Union of India submitted that as far as consensual acts of adults in private is left before the Court to decide. The Respondent of the present case has focused on the problem of contracting HIV/AIDS and the percentage of HIV/AIDS is more in homosexual persons than heterosexual persons. The Counsel for the defendant further focused on the shambles of the very institution of marriage and regarding the breakdown of social culture. The counsel further said that the main focus of a State is to protect its citizen from any harm or injuries and since carnal intercourse between two person is offensive and injurious it’s state’s responsibility to put reasonable restrictions to forbid such aberrant human behaviour by means of legislation.

Hence concluded by saying that Sec 377 is constitutionally valid and it’s not a violation of any individual’s right.

FINDINGS

The findings in the case is as follows that the Honourable Court has focused more on individual’s right than on the upcoming consequences of decriminalizing homosexuality. As presently there lies no provision or remedy under any law to protect the rights of the homosexuals, we can say the judgment has turned out to be a dead one.

Article 14 and Article 15 talks of equality yet we find that even the Court tried to bring the community on equal footing yet they have stood as minority in the society.

REASONING

The Court held that the Judgment passed in the case of Suresh Koushal case was not proper as the interpretation of the word “against the order of the nature” was misinterpreted.

The Honourable Court in the case of Navtej Singh Johar held that although the LGBTQ community holds only a minority position in our Indian society yet they too are entitled to enforce their fundamental rights guaranteed under Art 14, 19, 15, 21 of the Indian Constitution. The Court clarified that the act should be consensual between two adults i.e. who is above the age of 18 years and are competent enough to give consent.

The consent must be free consent, which must be voluntarily and without any coercion. Furthermore the provision of Sec 377 IPC will continue to govern non- consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality.

CRITICAL ANALYSIS

Every coin has 2 sides, likewise the judgment suffers from no defects and gives a legal recognition to the LGBTQ community, yet we cannot overlook the consequences of decriminalizing Sec 377 IPC. This consequence left open the door for bad consequences which would follow in future.

Firstly the LGBTQ community people wanted not only legal recognition to their rights but also a legislation which would be beneficial to them. The general concept of intimacy was always there within four walls of the room, the only benefit that this judgment gave is to allow the community to speak freely about their rights in the society. But this has not much benefited the community at large as Indian society is far away in accepting such judgment with a happy face.

Secondly the judgment gave legal permission to have sexual intercourse and to choose sexual partner on its own, but the question lies do we find anywhere in the judgment the concept of socialization. The judgment is silent regarding marriage laws, divorce laws, maintaince laws, and the main thing i.e. custody law.

Special Marriage Act, 1954, Hindu Marriage Act, 1955, Parsi Marriage and divorce Act, 1936, Indian Divorce Act, 1869 talks about marriage between two heterogeneous persons. The Hindu Adoption and maintaince Act 1956 talks about adoption by a father or a mother. The maintaince under Hindu law talks about maintaince of Husband or wife, Sec 125 Criminal Procedure Code, 1973 talks about maintaince of wife. In India we donot have any law for protecting male from getting sexually harassed in workplace likewise we can least expect homosexuals getting any particular laws for themselves.

None of the legislation talks about Homosexual person’s right to marry, have children in adoption, maintaince if neglected by either partner, no legislation to protect against illegal demand for dowry, no statue for protecting them from domestic violence or the right to divorce if any dispute arises.

Thirdly the judgment is silent regarding any kind of reservation for LGBTQ community. Although The Transgender Persons (protection of rights) Bill, 2019 was passed to give right to Transgender person yet there lies no provisions for homosexual persons. It is common scenario that when any organization gets to know about the sexual orientation of a person with same sex he/she will be shown doors at very first instance in order to save the reputation of the organization hence we can get least expectation in getting reservation for homosexual persons.

Fourthly Sec 377 IPC was enacted to safe children from child abuse and from preventing sexual acts on children. But the Decriminalization of Sec 377 IPC would show path for more child abuse cases.

Fifthly legalizing anything would mean the State is encouraging that particular act. Legalizing Sec 377 would give a path for selling of one’s body for money and the state would do nothing as this Sec is decriminalized. This act of selling body would increase the chance of having more HIV/STD cases in future.

Lastly the question of “consent” still remained a grey area as it is very difficult to prove such consent between two adults and hence giving a pathway for more exploitation.

CONCLUSION

India has finally taken the step to decriminalize the old British era laws by stating that a person’s right is more important than what society thinks. It is true Indian society would never accept this judgment, yet we would hope for some day when our mentality regarding homosexuals would ultimately change and that day we can say that decriminalizing homosexuality has been worth and homosexuals have actually got their rights.

Case Summary

RAJESH SHARMA VS STATE OF UP [ 2017 SCC Online SC 821 ]

June 21, 2021 Team Attorneylex Leave a comment

This Case Summary is written by Shriya Jain, a student at Vivekananda institute of professional studies, Delhi

INTRODUCTION

Even as we near the end of the twenty-first century, neither the sophisticated Western world nor traditional Asian and African countries can claim to have a gender-just society. Women, the most vulnerable members of the human species, are the architects of civilization, the nucleus of the family, the guardian of the home, the source of inspiration and power for men on all fronts, and it is women who determine the destiny of the human race as the creator of the Universe. The holy bond of marriage has now devolved into a means of accumulating riches, taking on the darkest shape of a societal evil. Dowry is a tradition related with marriage. Dowry has emerged as a social evil , a true plague that has vitiated and harmed family peace, harmony, and progress. It has impacted people from all walks of life, including the wealthy and the destitute. The dowry issue has devastated a lot of families and produced a slew of unhappy households.

BACKGROUND

Section 498-A was enacted in 1983 to safeguard married women from cruelty perpetrated by their husbands or relatives. A three-year sentence as well as a fine has been imposed. The word “cruelty” has been interpreted broadly to encompass inflicting physical or mental injury on a woman’s body or health, as well as harassing her or her relatives in order to persuade them to satisfy any unlawful demand for property or valued security. The Supreme Court decision in Rajesh Sharma vs State of Uttar Pradesh comes out with the judges suggesting various steps to prevent the abuse of Sec 498A. Various feminist NGOs and women social activists have criticised the decision once it was issued.

FACTS OF THE CASE

In this instant case, the proceedings were initiated when the respondent 2, Sneha Sharma, filed a complaint. On November 28, 2012, she and her husband, Rajesh sharma, here appellant 1, married. Her father provided dowry to the best of his ability, but her husband and his family were dissatisfied with the amount they received. They began assaulting and tormenting her as a result, as alleged by the complainant. They also demanded a dowry of Rs.3,00,000/- and a car, both of which were beyond her family’s means. The complainant was dropped off at her matrimonial residence by appellant No. 1 on November 10, 2013. She was pregnant at the time and had discomfort as a result of her pregnancy, which was terminated. Furthermore, as she indicated, her stridhan was preserved. He requested 50,000 and a gold necklace after retaining stridhan. He tortured his wife as a result of his displeasure with not obtaining the specified demand. The court summoned him under Sections 498A and 323 IPC based on this memo.

He was declared accountable and found guilty under section 498A, according to the session court. The court admitted sneha’s plea to summon rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma i.e her parents in law and the brother and sister of the husband. The appellant then appealed the summons order to the High Court under Section 482 CrPC. Despite the fact that it was sent to mediation, no conclusions were reached. The high court found no cause to intervene with his family’s summons, and the appellants’ plea was dismissed and the issue was now in the hands of the Supreme Court.

ISSUES

The main issue in this case was:

Whether the family of rajesh sharma should be held liable along with him under section 498A?
Is there a practice of including all family members in resolving a marriage dispute?
How were the provisions of Section 498a mismanaged and misinterpreted in order to incriminate innocent people?
And lastly, What are some feasible solutions to the potential of misconception of this section?

CONTENTION

The counsel asserted that there is a rising trend to utilise the provision to ensnare all family, including elderly parents, small children, siblings, grandparents, and uncles, based on imprecise and exaggerated charges without any verifiable proof of bodily or mental harm or impairment. The following data from the Crime Records Bureau (CRB)was cited: According to National Crime Reports, this is the case.In 2005, the Record Bureau handled 58,319 cases.A total of 1,27,560 people were reported under Section 498A of the IPC.There were 6,141 arrests and charges filed.Because of a factual or legal error, it has been deemed false.by refering to various case laws it was argued that the clause was being abused.judicially recognised, and there is a need to take steps to address it.This type of abuse should be avoided. A learned ASG proposed that a preliminary investigation be conducted along the lines of the findings in Lalita Kumari vs. Government of Uttar PradeshOnly with the authorization of the concerned Magistrate might a relative other than the spouse be arrested. Relatives beyond the age of 70 should not be detained. The police’s ability to make immediate arrests must be limited. The court must determine that there is prima facie evidence that the accused has committed an overt and covert conduct before giving authorization. Shri V. Giri, distinguished senior counsel, argued that an arrest for a Section 498A offence should only be made when the Superintendent of Police has given his unequivocal assent. In the case of relatives who live outside India, the matter should only be pursued if the IO is confident that arrest is required for a fair inquiry. The impounding of a passport or the issue of a red corner notice should be avoided in such instances. Counseling should be made a required procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, before a case under Section 498A is filed.

JUDGEMENT

after analysing the history of the problem and taking into consideration the Law Commission’s 243rd Report as well as previous decisions of this Court The court declared that violations of innocent people’s human rights cannot be overlooked. This Court has addressed several safeguards against unjustified arrests or insensitive investigations. Even yet, the issue persists to a large extent. Apart from sensitising the investigative officials and the concerned trial courts, they were of the opinion that involving civil society in the administration of justice may be one of the approaches. It is also vital to make it easier to conclude proceedings where a true settlement has been reached, rather than requiring parties to go to the High Court only for that purpose.

The court established a committee called the family welfare committee in every district that would hear all dowry cases, giving this body unchecked authority and the ability to act as a justice dispensation system. Every complaint received by the police or the Magistrate under Section 498A must be referred to and investigated by this committee. No arrests will be made unless the committee submits a report to the magistrate indicating that the victim’s justice would be delayed.Members of a committee that acts as a judicial body can be bought and swayed by the accused.

The court also stated that Only an authorised Investigating Officer of the region may examine complaints under Section 498A and any related offences. If a bail application is submitted with at least one clear reason, it will be granted.the Public Prosecutor/complainant is given a day’s notice,As far as feasible, the same can be decided on the same day.further elaborating they emphasized that It may not be necessary for all family members, especially those who live far away, to appear themselves before the court. After observing the aforementioned arrangement for six months, but no later than March 31, 2018, the National Legal Services Authority may provide a report on the necessity for any changes or further directives.

ANALYSIS

The declining acknowledgement and judicial acknowledgment of women’s rights is a fundamental concern in our legal system. The case of Rajesh Sharma vs. State of Uttar Pradesh demonstrates how women’s rights in Indian society are far from being achieved. The decision itself exemplifies the male-dominated Indian court, which forces women to battle for their rights. The Indian court has to be feminised, and men and women’s rights must be protected equally. Rather than addressing the threat of dowry, the court has exacerbated the problem. Women who speak out against such abuse and protest will be afraid to do so for fear of being kicked out of their homes or being labelled as a “disgruntled” wife by the courts. As a result, the courts should reexamine the effect and purpose of legislation and take appropriate action. The judge, instead of looking at the ground truth of the law, has relied on data to reach his determination, which is a really dismal truth in this case that everyone is talking about. The judges refused to admit even once that the law has decreased physical violence and dowry-related offences to a significant level. The judges did not consider the implications of a diluted dowry regimen.

CONCLUSION

This was a historic case because it not only acknowledged but also tried to establish a system of checks and balances when it came to criminal laws that were being abused by women. A recent case of social action forum for manav adhikar v. union of india, however, overturned the guidelines for the Family Welfare Committee. Despite the fact that the verdict in Rajesh Sharma’s case had no effect, it was nonetheless a paradigm change in the courts’ attitude and discussion. The verdict has prompted the creation of a blueprint for preventative measures that may be debated and investigated by parliament in order to curb dowry law abuse.

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3rd National Case Comment Writing Competition Organised by Team Attorneylex: Register by 12th July

June 16, 2021 Team Attorneylex 4 Comments

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List of Cases for Case Comment Writing ( Choose any one)

Shatrughan Chauhan & Anr v. Union of Indian [Death Penalty and Mercy Petition 2014]
Abhilasha v. Parkash [2020 SCC OnLine SC 736] (maintenance under Section 125 CrPC)
Vishaka and others v State of Rajasthan (Sexual Harassment of a woman at her workplace)
State of Karnataka v. State of Tamil Nadu [Cauvery Dispute]
A.K Gopalan vs. State of Madras, 1950 [ Habeas Corpus ]
Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal [CJI Office comes under RTI Act 2020]
The Secretary, Ministry of Defence v. Babita Puniya & Ors [Gender Equality in Armed Forces 2020]
Dheeraj Mor v. Hon’ble High Court of Delhi [Judicial Services 2020]
Amit Sahni v. Commissioner of Police, [2020 SCC OnLine SC 808] ( Shaheen Bagh Protests)
Indra Sawhney& Others vs. Union of India & Others
Dr. Shah Faesal & Ors. v. Union of India & Ors. [2020 4 SCC 1] ( Article 370 )
Pandurang Ganpati v. Vishwasrao Patil Murgud Sahakari Bank Ltd [2020 SCC OnLine SC 431] (SARFAESI Act )
Chebrolu Leela Prasad Rao & Ors. v.State of A.P. & Ors. [2020 SCC OnLine SC 383] (100% reservation for tribal teachers)
Swapnil Tripathi & Ors. v. Supreme Court of India & Ors. [Verdict on Live-streaming Apex Court Proceeding]
Justice K S Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1 (Validity of Aadhaar Judgment passed on 26th September 2018)
SR Bommai vs. Union of India in 1994 (Article 356)
Shayara Bano v. Union of India and Ors. (2017) 9 SCC 1
Independent Though v. Union of India and Anr. (2017) 10 SCC 800
Mukesh & Anr. v. State (NCT of Delhi) & Ors. (2017) 6 SCC 1
Joseph Shine Vs. Union of India

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Case Summary

SUSHILA AGGARWAL V. STATE OF NCT OF DELHI [2020 5 SCC 1]

May 7, 2021 Team Attorneylex Leave a comment

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This Case Summary is written by Shreya Sanjay Kumar Pandey, a student at Law College, Dehradun

SYNOPSIS

Anticipatory bail is a common recited word by the law “known” whenever they heard about the term arrest. This common word is not defined in the Criminal Procedure Code, 1973 which throws glimpses upon its procedure. Section 438 of the code gives power to the High Court and Session Court to grant bail to the person who has apprehension of getting arrested for a non-bailable offense. The code leaves the question blank regarding the time period of the anticipatory bail upon the discretion of courts. This became a major loophole in the provision. Some court grants bail till the person is summoned and others till the trial. Supreme Court tried to resolve the matter which later on leads to controversies due to conflicting judgments. This case again tried to do the same through the Constitutional bench.

BACKGROUND

The provision of Anticipatory Bail was added in the CrPC through the amendment of 1973. Law Commission 41st Report (1969) recommended introducing a new provision as Section 438. This section states that –

“Where a person believes that he might get arrested for any non-bailable offense, he has the to apply for bail before a High Court or a Session Court. The court may grant bail which will curb his arrest”.

The following conditions shall be directed by the High Court and the Session Court to the person who is granted bail under sub-section (1):

Person shall present himself for interrogation by the police officer whenever it will require;
Person shall not induce, give threat or promise to any person who has knowledge of facts of the case in such a way that it will restrict him to disclose them;
Person will not allow to leave India without prior permission of the court;
All other conditions which may be imposed upon him under Section 437(3), as if the court had granted bail under that section.

Since its incorporation, it attracts the question regarding the time up to which anticipatory bail may be granted. In Gurbaksh Singh Sibia v. State of Punjab (1980), Supreme Court had reiterated that Section-438 shall be interpreted in the light of Article 21. Anticipatory Bail shall be granted as a matter of right of an individual and “it cannot be restricted by the time”. This judgment gave power to courts to impose appropriate restraints in accordance with different cases.

However, Supreme Court overruled its previous judgment and pen down that “granting of Anticipatory Bail should be restricted by the time” in Salauddin Abdulsamad Shaikh v. State of Maharastra (1995). Controversies continued and hence confusion also. Henry Miller had rightly said, “Confusion is a word we have invented for an order which is not understood”. In 2010, Apex Court again sit for the same question and overruled its previous judgment by restoring the words of Gurbaksh Singh’s case. It held that the “life duration of an order granting Anticipatory Bail cannot be curtailed” (Siddharam Satlingappa Mhetre v. State of Maharastra [2010]).

There were conflicting statements by the different quorum of the apex court. This required immediate settlement.

FACTS OF THE CASE

The case arises from Delhi High Court judgment in Neetu Aggarwal v. State (2017) granting Bail to the Petitioner who is step-mother of the Sushila Aggarwal (complainant). The case was registered against Neetu Aggarwal, her male friend, and his father for sexual harassment and use of force to disrobe the complainant and her sister for rape. Delhi High Court granted bail to Neetu Aggarwal under Section 438 of CrPC after furnishing a personal bond of Rs. 50,000 along with a surety. Public Prosecutor asked the District Court to end the bail as summoned was issued to the Petitioner for the trial. He stated that such summon culminate the life of bail granted under Section 438 of CrPC.

Present Sushila Aggarwal’s Case was a result of a Special Leave Petition filed before the Supreme Court of India against the judgement of Delhi High Court. In this Supreme Court take the matter suo moto to settle the conflicting views which have been arises from their previous judgements.

ISSUES

Supreme Court mainly framed two issues which were more or less one question divided into two parts.-

Whether protection granted to a person under Section 438 CrPC should be limited to a fixed period to enable the person to surrender before the Trial Court and seek regular bail?
Whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the Court?

CONTENTIONS

Learned Senior Advocate Shri Harin P. Raval appeared as Amicus Curiae referred to the judgment of apex court in Balchand Jain v. State o M.P. (1976) and submitted that though code didn’t define the expression “anticipatory bail” but it refers to the “bail-in anticipation of arrest” as observed by the apex court. He stated that in Gurbaksh Singh’s case, the constitution bench observed that there is no time limit for anticipatory bail. It is the absolute discretion of the court to direct the duration of trial which may vary from some weeks to even filing of charge sheet or even till the end of a trial. Anticipatory Bail is granted solely considering the view to balance the interest of parties. Bail safeguards the liberty of an accused.

High Court and Session Court have absolute power to grant the anticipatory bail but legislature may curtail this power. The duration of such bail may be curtailed for fair investigation or for relevant discoveries to be made under Section 27 of the Indian Evidence Act, 1872. He stated Law Commission 41st Report provides the provision of anticipatory bail so that no person tries to link their rivals in a false case.

Learned Senior Advocate Shri K.V. Vishwanathan appeared to assist Amicus Curiae. He presented that bail granted before arrest under Section 438 of CrPC is similar to bail granted under Section 437 and 439 of CrPC. There is no power provided to the courts to pass such an order in a time-bound manner. The Court may order to arrest the person if the investigation agency approaches the court under Section 439(2).

Learned Solicitor General of India Shri Tushar Mehta submitted that courts have the power to restrict the time period of the anticipatory bail after giving a justified reason. It is additionally submitted that the life of such bail should terminate at the time and stage when the person is summoned by the Court.

FINDINGS

The constitutional bench under the authorship of Justice Arun Mishra held that there is “no time limit for any Anticipatory Bail” which is granted by the court. It is not bound by the fixed time period but if the court finds it necessary they are free to do so.

REASONING

Constitution of India provides the Right to Life and Personal Liberty under Article 21 to every person irrespective of the case whether he is accused or not. Through Law Commission 41st Report (1969) the purview of fundamental rights was extended and the provision of anticipatory bail was added in the Code of Criminal Procedure, 1973. In-State of Rajasthan v. Balchand (1978) Supreme Court quoted that “Bail is a rule, jail is an exception”.

Being a guardian to safeguard the rights of citizens, it becomes obligatory for Supreme Court to protect the accused from getting harass. There were many conflicting views of the apex court concerning the time limit of Anticipatory Bail. This gave the absolute power to the inferior courts to act according to their discretion. A person is presumed to be innocent unless he is proved guilty. This case will settle the controversies and limit the authoritarian behavior against the person unless he is proved guilty.

DISPOSITION

The matter is disposed of by the Constitutional Bench of the Hon’ble Supreme Court of India by observing that Anticipatory Bail should not be granted for a fixed time period.

CRITICAL ANALYSIS

Indian laws favour not only the victim but also the accused. Thousand accused may be released but no innocent shall be imprisoned. Delhi Commission of Women (DCW) reported that after the Nirbhaya case from April 2013 to July 2014, out of 2753 rape complaints 1464 found to be false. It became evidentiary from the followed norms to protect the sufferers. Anticipatory Bail act like a sword in the hand of those who are likely to be tortured by the laws which are enacted to protect the victims. However, the provisions are not clear about the time up to which it may be granted. Supreme Court tried to resolve the issue from time to time but none of them acts as a precedent to be followed strictly.

Recently, in Prithviraj Chauhan v. Union of India (2020) Supreme Court held that provisions of Anticipatory Bail shall not apply to the cases under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The matter is settled after a lot of controversies regarding the false registration of cases.

In Sushila Aggarwal’s case, Supreme Court through a five-judge bench resolved the issue of anticipatory bail finally. But, can we say that the matter is finally settled? What if the matter is reviewed or challenged and leads to sitting on a larger bench to decide it.

CONCLUSION

Anticipatory Bail was enacted by the legislature to settle down the critical socio-legal norms. Though provision is barred in states like Uttar Pradesh, it still helps to counter false presumptions. The case Sushila Aggarwal v. State of NCT of Delhi (2020) was taken up in the light of contradictory interpretations of the different Benches of varying strength. The constitutional bench overruled the judgments binding Anticipatory Bail to a fixed time period. Anticipatory Bail is a magical boon that is required to be utilized carefully and this will be done only after there is a proper framework. However, the pronouncement is a mirage in the court of records. It is a settled principle unless tried by the higher bench. It requires interference by the legislature through amendment in Section 438 of Code of Criminal Procedure, 1973. Bail should not become a tool to punish the person rather it must be a sword to protect him.

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March 25, 2021 Team Attorneylex 4 Comments