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Review: Supreme Court Rules That Prosecutors Shouldn’t Oppose Bail if Unable to Ensure a Speedy Trial, Even for Serious Crimes


In this edition of Court Judgements, we look at the Supreme Court’s judgements on grant of bail and bail conditions, Delhi High Court’s judgement on medical termination of pregnancy, Bombay High Court’s judgement on Compassionate appointment, and contours of consensual relationship.

Supreme Court: Prosecutors shouldn’t oppose bail if unable to ensure a speedy trial, even for serious crimes.

The Supreme Court, in Javed Gulam Nabi Shaikh vs. State of Maharashtra and Another, held that Article 21 of the Constitution applies regardless of the crime’s severity. If the prosecution cannot ensure the accused’s fundamental right to a speedy trial, it should not oppose bail based on the crime’s seriousness.

The two-judge bench comprising Justice J B Pardiwala and Justice Ujjal Bhuyan was hearing an appeal against the order passed by the Bombay High Court that declined to release the appellant on bail in connection with his prosecution under the provisions of the Unlawful Activities (Prevention) Act 1967 (UAPA). The brief facts of the case are as follows. On 9 February 2020, based on secret information, the appellant was apprehended with a bag containing 1,193 counterfeit Indian currency notes of Rs. 2,000 denomination. The counterfeit notes were seized, and the appellant was arrested. The prosecution claims that these notes were smuggled from Pakistan to Mumbai. Due to the nature of the crime, the NIA took over the investigation. It was found that the appellant visited Dubai on 6 February 2020, where he allegedly received the counterfeit notes from an absconding accused. He returned to India on 9 February 2020. Two co-accused have also been arrested in connection with this case and are currently out on bail. The counsel appearing for the National Investigation Agency (NIA) and the counsel appearing for the State prayed for time.

However, due to the material facts and the progress of the trial, the Apex court remarked that it was inclined to exercise discretion in favour of the appellant. 

The apex court also relied on multiple judgements, including the Hussainara Khatoon vs. Home Secy., State of Bihar, which held that ‘Any legal procedure that deprives a person of their liberty cannot be considered “reasonable, fair, or just” unless it guarantees a speedy trial to determine the person’s guilt.’.

Further, section 19 of the National Investigation Agency Act, 2008 (NIA Act) provides for a day-to-day trial and has precedence over the trial of any other case. Accordingly, the court held that if the State or any prosecuting agency, including the court, lacks the means to ensure an accused’s fundamental right to a speedy trial as guaranteed by Article 21 of the Constitution, they should not oppose a bail plea based on the crime’s severity. Article 21 applies regardless of the crime’s nature. The principle that an accused is presumed innocent until proven guilty cannot be disregarded, no matter how severe the law is. If the prosecuting agency and the court fail to provide a speedy trial, they violate the accused’s rights under Article 21 of the Constitution.

The appeal is allowed, and the appellant is ordered to be released on bail subject to the terms and conditions which the trial court may deem fit to impose.

Supreme Court: Constantly peeping into the private life of an accused released on bail would violate their right to privacy.

In Frank Vitus vs. Narcotics Control Bureau, the Supreme Court held that imposing any bail condition that allows the police or investigation agency to track the movements of the accused, whether through technology or other means, would unquestionably violate the right to privacy guaranteed under Article 21.

The two-judge bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan was hearing a petition regarding the bail condition. The appellant is facing prosecution under various sections of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Arrested on 21 May 2014, the appellant was granted bail on 31 May 2022, with specific terms and conditions, including the requirement to drop a PIN on Google Maps to enable the Investigation Officer to monitor their location. The court remarked that the issue at hand is whether this condition violates the appellant’s rights under Article 21 of the Constitution of India.

In this case, the offences under the NDPS Act carry sentences of seven years or more, governed by Section 37 of the NDPS Act concerning bail. The court’s discretion in granting bail is limited under Section 37(1)(b)(ii), but once bail is granted under this provision, conditions must adhere to Section 437(3) of the CrPC

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The concept of “interest of justice” in Section 437(3) was discussed in the case of Kunal Kumar Tiwari vs. State of Bihar, emphasizing that bail conditions must not be arbitrary or whimsical. Conditions are imposed to ensure the accused does not interfere with the investigation, remains available, does not tamper with evidence, attends court, and expedites trial conclusion.

The apex court remarked that the bail conditions must align with Section 437(3) and serve the objectives of such conditions. Bail conditions cannot be so onerous as to frustrate the order of bail itself. The constitutional rights of an accused granted bail are curtailed minimally, even for those convicted and serving sentences, ensuring their rights under Article 21 of the Constitution are upheld. A bail condition cannot be imposed if the accused can’t comply with it, as this would unjustly deny bail even when it is otherwise warranted.

In this case, the condition requiring the appellant to drop a PIN on Google Maps suggests real-time monitoring of the accused’s movements by the Narcotics Control Bureau (NCB), potentially violating the right to privacy under Article 21 of the Constitution of India. Any bail condition that allows police or investigation agencies to track the accused’s movements, whether through technology or other means, unequivocally violates the right to privacy.

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Accordingly, the two conditions in the bail order for the appellant, namely obtaining a certificate from the Embassy/High Commission and dropping a pin on Google Maps, stand deleted.

Delhi HC: Opinion of Medical Board must be offered without fear of legal repercussions for courts to arrive at a just order.

In Mrs. R vs. The Principal Secretary, Health and Family Welfare Department & Ors., the Delhi High Court emphasized the importance of expert medical opinions in assisting courts to make informed and just decisions without undue legal concerns in cases involving the termination of pregnancy.

The single-judge bench of Justice Sanjeev Narula was hearing a petition for termination of pregnancy. Brief facts of the case are as follows. The petitioner, a 31-year-old married woman residing with her husband and nine-year-old son, has approached the court seeking permission for medical termination of her current pregnancy under Sections 3(2B) & 3(3) of the Medical Termination of Pregnancy Act, 1971. She married on 30 November 2014, and gave birth to her first child, a boy with mental disabilities, on 10 October 2015, at Deen Dayal Hospital. The petitioner is now pregnant again after nine years. The doctors counselled her about potential chromosomal abnormalities related to Dandy-Walker Continuum. Another doctor at Lok Nayak Hospital confirmed the foetal MRI findings, indicating potential neurological developmental issues. 

Consequently, on 29 May 2024, the petitioner applied for Medical Termination of Pregnancy at Lok Nayak Hospital. Still, her application was denied by the Medical Board on 13 June 2024, prompting her to file the current petition. On 24 June 2024, the court directed the formation of a Medical Board at Lok Nayak Hospital to re-examine the petitioner and provide an opinion on the termination. However, on 28 June 2024, the hospital’s counsel stated that termination was not recommended due to inconclusive diagnoses based on outdated medical records and scans, without further tests. The court then directed the petitioner to be examined by a Medical Board at AIIMS on the seriousness of the matter, with a specific focus on foetal abnormalities and the petitioner’s safety during the procedure. The court noted that the negative recommendation from Lok Nayak Hospital was primarily due to inconclusive diagnoses, inadequate testing, and failure to assess the petitioner’s current condition thoroughly. Considering these developments and the comprehensive assessment by the AIIMS Medical Board, which conclusively diagnosed Joubert Syndrome, the court found the AIIMS report to be more reliable and definitive. 

The MTP Act, interpreted through various judicial decisions, underscores the importance of reproductive rights and balancing the health of the pregnant woman with the potential quality of life for the unborn child. Cases involving late-term termination require careful consideration and adherence, for which the court emphasizes the critical role of the Medical Board in cases of pregnancy termination to assist in reaching just decisions.

Further, the Ministry of Health and Family Welfare’s ‘Guidance Note for Medical Boards for Termination of Pregnancy Beyond 20 weeks of Gestation’ emphasizes the need for thorough medical evaluations and evidence-based decisions by medical boards.  It called out the Lok Nayak Hospital for failing to meet the court’s expectations, While the court acknowledges the crucial role of medical professionals in society and does not intend to demoralize them, it emphasizes the significant responsibility they bear in such sensitive matters.

In this case, the court leaned towards accepting the AIIMS Medical Board’s recommendation supporting termination due to identified significant foetal abnormalities and associated health risks. Accordingly, the petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice.

Bombay HC: Appointment on compassionate grounds not eligible, if the government’s resolution does not prescribe for more than two children in a family.

In Vidya Sunil Ahire and Ors. vs. Commissioner of Police, Thane, the Bombay High Court dismissed a family’s plea for compassionate appointment because the deceased employee had more than two children, rendering his family ineligible for the benefit of compassionate appointment.

The two-judge bench comprising Justice AS Chandurkar and Justice Rajesh S Patil was hearing an appeal against the Maharashtra Administrative Tribunal that dismissed the original application filed by the petitioners. The brief facts of the case are as follows. The husband of petitioner no.1 and father of petitioner no.2 passed away while in service on 11 February 2013. Petitioner no.1 sought a compassionate appointment for petitioner no.2. However, by a communication dated 11 January 2019, the petitioners were informed that due to the deceased’s family having more than two children, they did not qualify for benefits under the Government Resolution dated 28 March 2001, thereby denying the appointment on compassionate grounds. The Government Resolution specifies that if a third child is born in a family after 31 December 2001, they will not qualify for compassionate appointment, rendering them ineligible. 

The Tribunal, in its order, remarked that even if there was no widespread circulation or official proclamation of the Government Resolution dated 28 March 2001, known to the applicant, this does not alter its status as a governmental policy decision. The applicant cannot argue that they are not bound by the terms and conditions outlined in the GR simply because they were unaware of it. The applicant’s legal counsel did not identify any specific requirement mandating the proclamation of the GR to the applicant’s knowledge. It is well-established that ignorance of the law, including government resolutions, does not exempt anyone from their legal implications. Therefore, a lack of awareness of the GR does not excuse the applicant from its binding legal consequences. Further, a compassionate appointment should not be seen as a standard employment method akin to regular recruitment. It’s important to understand that compassionate appointment isn’t an inherent entitlement, but a provision designed to support families in distress, governed strictly by the terms and conditions of the policy applicable at the time.

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Accordingly, the Tribunal dismissed the petition. Upon challenging this in the High Court, the Bombay High Court concluded that no grounds exist to intervene through writ jurisdiction. The arguments raised were properly considered by the Tribunal, emphasizing that prior publication of the Government Resolution was not obligatory. Moreover, reliance on the 2005 Rules was deemed inappropriate since the matter falls under the purview of the Government Resolution dated 28 March 2001. Therefore, the High Court found no jurisdictional error by the Tribunal warranting its intervention in the exercise of writ jurisdiction.

Accordingly, the petition stands dismissed.

Bombay HC: Consensual Relationship does not give a license to sexually, physically and financially exploit the partner.

The Bombay High Court, in Pritam Chandulal Oswal vs. State of Maharashtra., remarked that a consensual relationship does not grant permission for sexual, physical, or financial exploitation of the partner.

The single judge bench of Justice N.J. Jamadar was hearing an appeal for bail for offences punishable under Sections 307, 376, 376(3)(n), 376(h), 376(d), 377, 384, 385, 366, 354, 354(A), 313, 502(2), 506, 504 and 323 read with 34 of the Indian Penal Code, 1860. The brief facts of the case are as follows. The first informant, a 28-year-old woman, became acquainted with the applicant, a married man, on Facebook. The applicant assured her help in resolving legal proceedings related to alleged exploitation by another person, initially professing to treat her like a sister. However, the informant alleged that on 10 July 2020, under the pretext of meeting an advocate, the applicant took her to a secluded place and forcibly had sexual intercourse with her at gunpoint. The applicant allegedly recorded the act and used the threat of making the video viral to continue sexually exploiting her. He later harassed and threatened her and her family with gangsters. 

The informant also described various incidents of sexual exploitation by the applicant. When the informant went to the house of the applicant, he and his father took turns to exploit her sexually. She further claimed that when she became pregnant, the applicant forced her to abort the foetus, assaulting her violently, including kicking her stomach, which eventually led to a miscarriage.

The applicant’s counsel argued that the relationship, which lasted from 2019 to June 2023, was consensual, highlighting that the last alleged act of sexual exploitation occurred on 24 June 2023, but the FIR was lodged on 30 August 2023, indicating a delay. Further, it was said that the first informant participated in family events and was treated as a family member, implying that the allegations arose from a soured relationship. The counsel claimed the acts of assault were out of frustration due to the informant’s insistence on abortion against the applicant’s wishes.  However, the state’s counsel countered that the applicant should not be allowed to escape accountability by claiming the relationship was consensual. 

Upon hearing both parties, the court acknowledged that the applicant and the first informant had been in a relationship for more than three years, and the sexual relations seemed consensual, as appealing. It could be argued that the informant had sufficient opportunities to resist and report the alleged sexual and physical acts. However, given the peculiar facts of the case, the court emphasized the need to examine the material on record in the context of the attendant circumstances. The statements of witnesses, along with the transcript of the WhatsApp conversations between the applicant and the first informant, prima facie substantiated the informant’s allegations of sexual exploitation and threats. Cumulatively, it appeared that the applicant had sexually, physically, and financially exploited the first informant.

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The court held that while granting relief to the co-accused, who is the father of the applicant, this court considered the improbability of the allegations against the applicant’s father. However, this cannot be a basis to grant bail to the applicant, against whom there is overwhelming material evidence.

Accordingly, the petition for bail is dismissed.


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