Legal News 15th Dec 2021: Anticipatory Bail While Already In Custody? Bombay HC Agrees

Anticipatory Bail While Already In Custody? Bombay HC Agrees

• The Hon’ble Bombay High Court on 14 December, while hearing an anticipatory bail application (Alnesh Akil Somji vs. State of Maharashtra) has ruled that an accused can be granted anticipatory bail even if he is already in custody for another offence.
• According to the counsel for the applicant, the learned Session Judge erred by giving a restrictive interpretation of the scope of Section 438 of CrPC. Reliance was placed by the Counsel on the case of Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC.
• Thus the question before the court was-

“Whether an anticipatory bail application would be maintainable by an accused who is already arrested and is in magisterial custody in relation to another crime?”

• The Bombay HC stated that on a plain reading of section 438 CrPC it is clear that the only restriction applying to the grant of anticipatory bail is that it will not apply to offences mentioned in Section 438(4).
• Relying upon the decision of the Hon'ble SC in Sushila Aggarwal vs. State (NCT of Delhi) and Shri Gurbaksh Singh Sibbia and others vs. State of Punjab (1980)2 SCC, the Court observed that when the legislature wanted certain offences to be kept outside the purview of section 438 CrPC (eg- Section 376 or 376-AB) it did so in categorical terms and “parliament’s omission to restrict the right of citizens, accused of other offences from the right to seek anticipatory bail, necessarily leads one to assume that neither a blanket restriction can be read into it by this court, nor can inflexible guidelines in the exercise of discretion, be insisted upon- that would amount to judicial legislation”
• Thus, there is nothing, according to the Court, in CrPC or in any other statute which prohibits the Sessions or the High Court from entertaining an application for anticbail when the accused is already in judicial or police custody and the Sessions Court had made a great error in denying the bail application of the accused.

And now, a question for our aspirants-

By what decision of the Hon’ble Uttarakhand HC the provisions of Section 438 CrPC have been made applicable in the state of Uttarakhand?

Recording Wife’s Conversation A Violation Of Her Privacy– Punjab and Haryana HC

• On 12 December, 2021 the Hon’ble Punjab and Haryana HC in the case of Neha vs. Vibhor Garg has
• refused to allow the husband to prove the cruelty of his wife by producing a CD of recorded conversations between him and his wife. These conversations were recorded without the knowledge of the wife.
• With this observation, the Court set aside the order of the Family Court which had allowed the CD to be produced in Court in a suit for divorce under section 13 of the Hindu Marriage Act,1955.
• The Court observed–
• “It cannot be ignored that acceptance of the CD in question shall amount to a clear breach of the fundamental right of the petitioner-wife, that is her right to privacy, as has been upheld in various judicial pronouncements”
• The Bench further observed that “it cannot be ascertained as to the circumstances in which the said conversations were held”. The Court felt that it was not in a position to assess the circumstances in which the particular response was made by the other party, even if the cross-examination was done.
• While concluding the judgement, the Court stated–

“ acceptance of CD by the learned Family Court allegedly containing conversations between the husband and the wife recorded surreptitiously without the consent or knowledge of the wife and allowing the husband’s application is unjustified”

• Reliance was also placed on the decision of the Hon’ble Andhra Pradesh HC in the case of Smt. Rayala M. Bhuvaneshwari vs. Napaphander Rayala (2003) RCR (Civil) in which the Court specifically held “the act of recording conversations without the knowledge of the wife is illegal and amounts to infringement of her right to privacy and even if the chips in question are true, they are not admissible in evidence”. A similar view was expressed by the Madhya Pradesh HC in Arunima @ Abha Mehta vs. Sunil Mehta s/o Chandmal AIR 2016(MP).

And now, for our judiciary aspirants—

State the came of the landmark judgement in which the right to privacy was declared a fundamental right by the Supreme Court?

Mere Promise To Marry Not A Misconception Of Fact Under Section 90 IPC– Gauhati HC

• The Gauhati HC on Friday held that a mere promise to marry will not be a misconception of fact under Section 90 IPC.
• The petitioner was accused by the girl’s family of kidnapping and raping her on the pretext of marriage. The accused was booked under section 419 (punishment for cheating by personation), section 366 (kidnapping, abducting or inducing woman to compel her marriage) and section 376 (punishment for rape) of the IPC.
• During trial, the girl admitted that she was in love with the accused. He had proposed to marry her pursuant to which they had gone to the house of the accused’s paternal uncle to get married. Here she said that she refused to marry him. Enraged he forcefully applied vermilion on her forehead.
• Citing several decisions of the Hon’ble SC namely Uday vs. State of Karnataka, Dilip Kumar vs. State of Bihar and Deepak Gulati vs. State of Haryana in which the Apex Court has repeatedly held that the consent of the victim would be considered to be given under misconception of fact only if right from the inception the accused had no intention of actually marrying the girl and the promise to marry held out by him was held to be a mere hoax.
• The court further held that the breach of a promise is different from not fulfilling a false promise.
• The court also held that the testimony of the girl during trial “failed to inspire confidence in the court to the effect that she was ever kidnapped and raped”.
• Thus, in light of these findings the Court held that the lower courts have erroneously convicted the accused and he was acquitted.

Read the above article carefully? Let’s see if you can answer the following—

Consent known to be given under fear or misconception is given under what chapter of the IPC?