Top News Headlines 3rd Feb 2022: Section 82 CrPC Does Not Bar Filing Of Anticipatory Bail By Proclaimed Offenders

Section 82 CrPC Does Not Bar Filing Of Anticipatory Bail By Proclaimed Offenders: Punjab and Haryana HC

• The Hon’ble Punjab and Haryana HC, in the case of Mamta Giri vs. State of UT Chandigarh has held that nothing contained in section 82 CrPC will bar a proclaimed offender to file an application seeking anticipatory bail, if he could satisfy the Court that he had cogent reasons for not being able to be present in Court.
• In the instant case, an FIR was registered against the accused under sections 279, 337 and 338 of IPC. She had repeatedly missed attending the Court citing multiple reasons, from having a fever to a miscommunication between her and her lawyer. On the last date, she was not only unaware of the NBW (non- bailable warrant) against her but she was also down with a fever.
• The HC relied on various judgements of the Hon’ble SC while coming to a decision. In the case of Lavesh vs State (NCT of Delhi) (2012)SCC the Apex Court held that normally, when an accused is absconding or is declared a proclaimed offender, granting him anticipatory bail does not arise. The word that the Court has emphasised upon is normally. But in the case at hand, the accused had given sufficient reasons for her non appearance in Court.
• The Hon’ble HC also relied upon various cases like Prem Shankar Prasad vs. State of Bihar, Vipan Kumar Dhir vs State of Punjab and anr, among others, to state that in these cases, the offences that were complained of were heinous in character and hence the question of granting anticipatory bail does not arise.
• Thus, the Court held that if the offence committed was punishable with less than seven years, is bailable and not heinous and the accused, who is a first time offender, had given sufficient cause for his non- attendance in Court, then he will not be barred from seeking an anticipatory bail only on the ground that he has been declared as a proclaimed offender.
• The Court also relied upon the guidelines issued by the Hon’ble SC in Arnesh Kumar vs. State of Bihar wherein the Court directed that the State Governments to instruct their police officers to not automatically arrest the accused when the offence complained of is punishable with imprisonment of a term less than 7 years.
• Thus, in light of the aforesaid contentions, the plea for anticipatory bail was granted.

Criminal Court Can Try A Case Against An Army Personnel When The Commanding Officer Does Not Exercise His Discretion To Initiate Court Martial: SC

• In the case of State Of Sikkim vs Jasbir Singh the Hon’ble SC has held that a criminal Court will have the jurisdiction to try a case against an army personnel when the Commanding Officer has not exercised his discretion under section 125 of the Army Act to initiate the proceedings of Court Martial.
• In the instant case, an army man was accused of shooting a rifle man named Balbir Singh. An FIR was registered under section 302 of IPC. On 15 December, his custody was handed over to the investigating officer, and later a case was instituted in the Sessions Court and charges were framed.
• The Sessions Court held that since the accused as well as the deceased were governed by the provisions of the Army Act, according to section 69 of the same, the accused could be tried only by the Court Martial. The same was upheld by the High Court.
• Section 125 of the Army Act states that when both the Criminal court as well as the Court Martial have jurisdiction in respect of the offence committed, then the Commanding Officer of the unit where the accused is serving has the power to decide in which court the case would be tried.
• The State of Sikkim appealed against the order of the HC and argued that if the Commanding Officer does not exercise his discretion under section 125, then the Army Act would not stop the criminal Court from exercising its ordinary criminal jurisdiction. This stand was also supported by the Union Government.
• The accused, on the other hand, argued that in view of the provisions of section 69 and 70 of the Army Act, a trial could only be possible by the Court Martial and not by the criminal court.
• The Apex Court observed that under section 125, the Commanding Officer has, when there exists a concurrent jurisdiction, the discretion to choose whether the trial would be conducted by Court Martial or in the ordinary criminal court. The section further goes on to say that if the Commanding Officer chooses to exercise his discretion, then the proceedings shall be instituted in the forum of his choice.
• The Court relied on the case of Joginder Singh vs State of Himachal Pradesh where it was held that if the commanding officer does not exercise his discretion then the Army Act would not contradict the provisions of CrPC and there would not be an overlapping of jurisdiction.
• The Court further observed that in the present case, the entire sequence of events clearly indicates that the Commanding Officer made a conscious decision that the investigation and trial should be done according to the provisions of CrPC.
• Thus, while allowing the appeal, the Apex Court held that the sessions court had the jurisdiction to try the case and the decision of the HC was set aside.

Civil contempt can be made out under Order XXXIX Rule 2A of Civil Procedure Code only in case of wilful disobedience: Supreme Court

• Setting aside the order of a single bench judge of the Delhi High Court (HC), Supreme Court (SC), in the case of Future Retail Ltd v Amazon.com Investment Holdings & Future Coupons Pvt Ltd v Amazon.com Investment Holdings observed that a civil contempt can be made only when there is a “wilful disobedience” and not where there is a mere disobedience.
• The case has been remanded back to the High Court.
• Since the allegation made is in the nature of a criminal liability, the same must be proved to be ‘wilful’ and ‘conscious’ to the satisfaction of the court.
• In an earlier round of the case, SC doubted the view that disobedience of the injunction should be wilful to invoke provisions of Order XXXIX Rule 2A.
• The Court set aside the order for punitive action against the petitioner and its promoters, on the basis that the precondition of ‘mental element’ for a wilful disobedience was absent.
• The Court, explaining the meaning of ‘wilful’, held that the word has a mental element and must be distinguished from acts done involuntarily or negligently or inadvertently. The act must be done with a bad purpose, without justifiable excuse or stubbornly; it must be a calculated act with an evil motive.
• Rule 2A of Order XXXIX of CPC deals with the consequence of disobedience or breach of an injunction. Any breach of an injunction may result in an order for attachment of property and civil imprisonment.
• This appeal before the SC arose out of the order passed by a single judge of Delhi HC refusing to stay the refusal of vacation of Emergency award by the Singapore Arbitration Tribunal restraining the deal between Future Group and Reliance.
• Disputing the judgment of the HC, counsel for petitioners argued that they weren’t given sufficient time to raise their defence and were given a small window of 24 hours, before the final order, to file a brief submission. It was argued that the proceedings were carried out contrary to the principles of natural justice.
• After hearing arguments from both sides, the bench observed that unlike administrative actions where the principle of natural justice is based on the procedural requirement of fair hearing, in case of judicial review, such principles are built into rules & procedures of the Court and must be meticulously followed.
• The SC bench further observed that Courts must be more cautious in affording a reasonable opportunity to the parties especially in matters that may have a serious impact on the economy and also while making observations on the merit of the case.
• Concluding that opportunity provided to the petitioner was insufficient and one that cannot be upheld before the eyes of the law, the matter has been remanded back to the HC for fresh consideration.
• While remitting the matter back to HC, the bench observed that an important question of law regarding the effect of an award given by the Emergency Arbitrator and the jurisdiction of such Tribunal qua such awards arise in the current matter and must be duly addressed by the High Court.