Delhi High Court seized with ANI's case against Wikimedia Foundation's Wikipedia

Asian News International (ANI), an Indian news agency offers syndicated multimedia news feed to news bureaus in India and elsewhere. It was established by Prem Prakash in 1971, it was the first agency in India to syndicate video news. It is considered the biggest television news agency in India. The ANI page on the Wikipedia of Wikimedia Foundation Inc. states:"ANI has been accused of having served as a propaganda tool for the incumbent central government, distributing materials from a vast network of fake news websites, and misreporting events on multiple occasions. In July 2024, ANI filed a lawsuit against Wikipedia in the Delhi High Court, claiming that the news agency was defamed in a description on the website." Prem Prakash was given Lifetime Achievement Award in the award ceremony graced by Gajendra Shekhawat, the Union Minister in July 2023.

In ANI Media Pvt. Ltd vs. Wikimedia Foundation Inc., Justice Navin Chawla of the Delhi High Court issued summons to Wikipedia on July 9, 2024 in the suit filed by the ANI. ANI has alleged that Wikipedia, the online encyclopaedia has allowed defamatory edits to ANI's page on its online platform. The Court's order reads: " Let the plaint be registered as a suit. Issue summons to the Defendants, to be served through all permissible modes, including through electronic mode and dasti as well, returnable on 20th August, 2024. The summons to the Defendants shall indicate that the Written Statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the Written Statement(s), the Defendants shall also file the affidavit(s) of admission/denial of the documents of the Plaintiff, without which the Written Statement(s) shall not be taken on record." 

On August 20, 2024, the Court's order recorded that application was filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 for amending the plaint. The Court issued the notice. The order reads: "defendant no.1 is directed to disclose the subscriber details of defendant nos.2 to 4 to the plaintiff, through its counsel, within a period of two weeks from today. On receipt of the said information, the plaintiff shall take steps for ensuring service of summons and notice on the application on the said defendants. Written statement be filed by defendant no.1 within the prescribed period." 

On September 5, 2024, the Court reportedly issued a contempt of court notice to Wikimedia Foundation Inc. ANI has submitted that the platform has failed to comply with orders to disclose information on subscribers who made allegedly defamatory edits on ANI's Wikipedia page. In his oral observation,  Justice Chawla said: "I will impose contempt...It is not a question of Defendant No 1 [Wikimedia Foundation Inc] not being an entity in India. We will close your business transactions here. We will ask the government to block Wikipedia...Earlier also you people have taken this argument. If you don’t like India, please don’t work in India." The High Court ordered an authorised representative of Wikimedia Foundation Inc to be personally present in Court on October 25, 2024 when the matter will be heard next.

ANI sued Wikimedia Foundation Inc. for defamation. The news agency has claimed that Wikipedia allowed defamatory edits on its page which referred to ANI as a "propaganda tool" for the present government. Responding to the lawsuit, the Wikimedia Foundation said: "As a technology host, the Wikimedia Foundation generally does not add, edit or determine content published on Wikipedia. Wikipedia’s content is determined by its global community of volunteer editors (Wikimedia Community) who compile and share information on notable subjects."

 

High Court dismisses appeal of Bihar Finance Department against an Electrician

In the State of Bihar through Principal Secretary, Finance Department vs. Hirdayanand Tiwari, Patna High Court's Division Bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy, heard the appeal filed by the State against the judgement dated December 13, 2021 delivered by the Single Judge Bench of Justice P. B. Bajanthri and endorsed it in their judgement dated September 3, 2024. Besides Principal Secretary, Finance Department, Bihar, there were four appellants, namely, the Principal Secretary, Minor Irrigation Department, Bihar, the Engineer in Chief, Minor Irrigation Department, Bihar, the Co-ordinator-cum-Chief Engineer, Tube Well Project, Muzaffarpur and the Executive Engineer, Tube Well Division, Motihari. The Division Bench judgement concluded: "We find absolutely no reason to interfere with the judgment of the learned Single Judge". It provided additional reasons in support of the judgement of the Single Judge.

The Single Judge Bench had heard Hirdayanand Tiwari's prayer who was appointed as an Electrician in the Tube-well Department. Initially, he was extended the pay-scale of Rs. 1200-1800. The Pay-scale was revised from time to time. In the year 1996, the post of Electrician was revised among other posts. The petitioner was extended benefit of Rs. 4000-6000, thereafter, the Department noticed that such extension of pay-scale of Rs. 4000-6000 by the petitioner in the year 1996 with reference to revised pay-scale as on 01.01.1996 was incorrect. In the result, an order was passed for re-fixation of pay and order for recovery. It was the subject matter of litigation before this Court in CWJC No. 10325 of 2012 and it was decided on March 8, 2019 in favour of the petitioner. The impugned order dated September 19, 2019 was passed re-fixing the petitioner’s pay w.e.f. January 1, 1996 in the pay-scale of Rs. 3050-4590. The petitioner petitioner was initially extended the pay-scale of Rs. 1200-1800 for the Electrician Post. He was given corresponding revised pay-scale from time to time. As on January 1, 1996, the Electrician post carries the pay-scale of Rs. 1200-1800 as was revised to Rs. 4000-6000. He submitted that the concerned respondent’s decision dated September 19, 2019 was not with reference to the service record in which petitioner’s pay-scale has been mentioned as Rs. 1200-1800 at the time of appointment to the post of Electrician. Hence, the impugned order dated September 19, 2019 was liable to be set aside and petitioner be extended the benefit of pay-scale of Rs. 4000-6000 that was revised on January 1, 1996 and he was entitled to consequential benefits.

Justice Bajanthri had set aside the impugned order dated September 19, 2019. His judgement reads: "Petitioner is entitled to revised pay-scale of Rs. 4000-6000 as on 01.01.1996 in the Electrician Cadre, the same shall be extended. If the petitioner is entitled for arrears of pay and revision of pension, the same shall be calculated and disbursed to the petitioner within a period of three months from the date of receipt of this order. Accordingly, the present petition stands allowed with a cost of Rs. 10,000/- which shall be paid to the petitioner by the respondents."

It was this judgement which was unsuccessfully challenged by the Principal Secretary, Finance Department, Government of Bihar. The Division Bench judgment observed:"At the outset, it is trite that when an employee is promoted to a new cadre or regularized in the services; there cannot be any discrimination on the basis of the source from which the promotion was conducted or the regularization was made, especially when, in the promoted post or the regular post the employee continues with the very same responsibilities, obligations and duties as a person who was promoted or appointed from another source." The judgement was authored by Chief Justice Vinod Chandran. 

Supreme Court sets aside Patna High Court's judgement granting provisional pre-arrest bail, makes bail absolute

In Sudeep Chatterjee vs State of Bihar 2024 INSC 567, Supreme Court's bench of Justices C.T. Ravikumar and Prashant Kumar Mishra observed: "We are constrained to refer to the said maxim on being pained to see that despite a catena of decisions deprecating the practice of putting onerous conditions for pre-arrest bail such orders are being passed without giving due regard to the binding precedents."

The case arose from an order of the Patna High Court whereby the High Court granted provisional pre-arrest bail in complaint case against the appellant alleging commission of offences punishable under Section 498A of the Indian Penal Code (IPC), 1860 and Section 4 of the Dowry Prohibition Act, 1961.

The appellant's application for pre-arrest bail before the Court of Sessions Judge, Katihar was dismissed. An application for an anticipatory bail was moved before the High Court against it. 

The Court drew on the decisions of the Supreme Court's Constitution Bench in Shri Gurbakash Singh Sibbia & Ors. v. State of Punjab (1980) and in Parvez Noordin Lokhandwalla v. State of Maharashtra (2020). In the latter case the Court held: “…The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.”

The Court observed that the constant and consistent view of the Court on matters granting a prayer for bail under Section 438 of  the Code of Criminal Procedure, 1973 is that "after forming an opinion, taking note of all relevant aspects, that bail is grantable, conditions shall not be put to make it impossible and impracticable for the grantee to comply with." 

Relying on the Court's decision in Parvez Noordin’s case, the Court observed that "the ultimate purpose of putting conditions while granting pre-arrest bail is to secure the presence of the accused and thus, eventually to ensure a fair trial and also for the smooth flow of the investigating process."

The Court's order reads: "we would reiterate the view that courts have to be very cautious in imposing conditions while granting bail upon finding pre-arrest bail to be grantable." 

The Court concluded that the conditions mentioned in the Patna High Court's order in paragraph 6 "for the release of the appellant on the provisional bail cannot be sustained and as such  the said conditions to give undertaking that the appellant would fulfil all physical and financial requirements by  way of an affidavit are set aside." The order of August 2, 2024 reads: The order granting the bail is made absolute and the appellant in the event of his arrest be released on bail subject to the same terms stipulated by the High Court under the impugned order regarding suretyship as also the liability to comply with conditions as laid down under Section 438(2), Cr. P.C....The impugned order stands set aside only to the aforesaid extent."

The Court cited the maxim ‘Lex non cogit ad impossibilia’ which means ‘the law does not compel a man to do what he cannot possibly perform’. 

S.P., Bhojpur directed to produce original records of departmental enquiry for dismissal of a constable: Patna High Court

Pasupati Nath Thakur filed the writ petition (civil) on September 10, 2009. It was registered on that very day. The first order was passed on October 10, 2009 by Justice Navin Sinha. The second order was passed by Justice Shivaji Pandey on January 25, 2018. On February 28, 2018, Justice Pandey made an order. It reads:"It appears that the State has not filed any counter affidavit in the matter. Let the State file counter affidavit in the matter within three weeks from today. In failure to file the counter affidavit, the Court will decide the case on the basis of the materials available on record. Let this case be listed after three weeks under the same heading."

On March 26, 2018, Justice Pandey passed an order. It reads: "This Court on 28.2.2018 has granted time to the State to file counter affidavit but till date no counter affidavit has been filed. Let this case be listed on 20th April, 2018 under the same heading. It the State fails to file counter affidavit, on the next date, the Superintendent of Police, Bhojpur will remain physically present in Court to assist this Court." On July 11, 2018, Justice Mohit Kumar Shah made an order in Pasupati Nath Thakur vs. State of Bihar. It reads: "The respondents are directed to produce file pertaining to the conduct of departmental proceeding against the petitioner herein within a period of four weeks from today. List after four weeks." It is clear from the order that the the Superintendent of Police, Bhojpur is the key respondent. Neither the orders nor the case status on the Court's website provide details about other respondents. 

The writ petition was dismissed and disposed on August 16, 2018. The writ petition was filed for quashing the order of punishment dated 6.12.2003 whereby the petitioner has been dismissed from service as also the order dated 12.6.2009 passed by the Director General of Police whereunder the Appeal memorial, preferred by the petitioner has been dismissed. A disciplinary proceeding was initiated against the petitioner vide Departmental Proceeding No. 08 of 1999 and charges were framed pertaining to the petitioner engaging in gross misconduct and indiscipline, disobeying the orders of the authorities and being absconder from duty. The petitioner was intimated for appearing in the ongoing departmental proceeding vide memo No. 12.5.1999, 29.7.1999, 22.8.1999, 30.8.1999, 5.10.1999, 6.11.1999, 20.11.1999 and 25.12.2000, but the petitioner did not appear in the Reserve office. Thereafter, a registered letter dated 8.6.1999 as also other letters were sent by the Superintendent of Police, Patna to the petitioner for participating in the ongoing departmental proceeding. The enquiry officer had then, on the basis of the materials available on record, found the petitioner to be guilty of the charges levelled against him. The Superintendent of Police, Bhojpur, being in agreement with the opinion of the enquiry officer, issued a second show cause notice to the petitioner on 3.3.2002 and upon request of the petitioner herein, further time was granted to the petitioner to submit his reply, but he did not submit any clarification resulting in the disciplinary authority passing the order of punishment of dismissal from service dated 6.12.2003. Thereafter, the Deputy Inspector General of Police, Sahabad Range, Dehri-on-Sone before whom the petitioner had preferred an appeal, rejected the appeal of the petitioner vide order dated 14.2.2007. Thereafter, the petitioner is said to have filed appeal/ memorial before the Director General of Police, Bihar, Patna, which was rejected by an order dated 12.6.2009.

The petitioner's counsel submitted that on account of bona fide reason, the petitioner could not attend his duties. It is further submitted that the impugned order of punishment is bad inasmuch as no opportunity of hearing was granted to the petitioner and the enquiry has been conducted ex parte.

The order of Justice Shah reads: "I find that there is no lacuna in conduct of the disciplinary proceeding as against the petitioner herein and on this score no fault can be found. Now, coming to the issue raised by the petitioner regarding him not having been granted opportunity of hearing, during the course of the disciplinary proceeding, I find that the petitioner had voluntarily not submitted his clarification and deliberately avoided participating in the disciplinary proceedings, which proves the guilt of the petitioner beyond doubt." 

He observed: "It is also clear from the records that the petitioner is a habitual absconder from duty. It is a trite law that no indiscipline can be tolerated by the employees of an armed force/police force and any misconduct on the part of such delinquents is required to be treated with firm hands inasmuch as tolerating any sort of indiscipline will amount to spreading a wrong message amongst other members of the armed force/police force."

The Court noted that "charges levelled against the petitioner have been conclusively proved beyond doubt, the petitioner has no defence to the same and admittedly he has been an absconder inasmuch as the petitioner was absent from duty in an unauthorized manner without leave." 

It concluded:  "the order of punishment dated 06.12.2003 as also the appellate order dated 14.02.2007 and the Appeal memorial order dated 12.06.2009 do not require any interference, there being no procedural infirmity or impropriety in conduct of the disciplinary proceedings. Having regard to the facts and circumstances of the case and for the reasons stated herein above, there is no merit in the present writ petition, hence, the same is dismissed."

Pashupati Nath Thakur filed Letters Patent Appeal in Civil Writ Jurisdiction Case No.12945 of 2009 on October 16, 2019 against four respondents, namely the State of Bihar, the D.G.-cum-I.G. of Police, Patna, Bihar, the D.I.G. of Police, Shahabad Range, Dehari On-Son and the S.P., Bhojpur. It was registered on that very day. On August 5, 2024, the division bench of Justices P. B. Bajanthri and Alok Kumar Pandey condoned the delay in filing LPA No. 1352 of 2019. The order records: "The appellant has assailed the order of learned Single Judge dated 16.08.2018. In LPA No. 1352 of 2019 on 16.10.2019, there is a delay of about 76 days while taking note of the uploading of learned Single Judge order was on 30.05.2019. For the reasons stated in application and read with the affidavit delay of about 76 days stands condoned."

On August 27, 2024, the bench of Justices Bajanthri and Pandey recorded in their order that "Mr. Saroj Kumar Sharma, the learned counsel for the State could not apprise this Court with reference to the original records in respect of departmental enquiry. One of the issue is relating to communication of charge memo to the appellant and to that extent and what is the material document is available on the record. Further, we are not satisfied with the mentioning of dates in the charge memo whether it is 1998 or 1999. Similarly, if he remains ex-parte in the enquiry, the enquiring officer had issued notice to the appellant for his appearance on various dates and such of those copies of the notices address to which place and other details are not forthcoming. Further, assuming that he remained ex-parte. In all fairness, disciplinary authority and enquiry authority was required to undertake notifying the proposed disciplinary proceedings in the leading newspaper publication where the last residential address furnished by the appellant. Similarly, while issuing second show cause notice and so also passing final order of dismissal on 06.12.2003. In other words, even though, Mr. Saroj Kumar Sharma, the learned counsel for the State is having original records and he is not in a position to apprise the aforementioned information."

The order concluded: "Therefore, the Superintendent of Police, Bhojpur is hereby directed to depute an official who is well conversant with the present file so as to assist in the matter with reference to all dates and events read with documents including relevant regulations/rules governing the constable post for the purpose of initiating and concluding disciplinary proceedings whether was it under Police manual or CCA rules, unamended Rules, 2005, or not?" The case is re-listed for hearing on September 10, 2024.

Bhagalpur Police misleads High Court regarding coercion, confinement of a UGC-NET candidate

In Kumar Divyam vs. State of Bihar Through Principal Secretary, Home Department (2024), Patna High Court's division bench of Justices P. B. Bajanthri and Alok Kumar Pandey passed an order on August 13, 2024. The Court asked the Superintendent of Police, Bhagalpur Naugachiya "to send women police officer to the residence of Shambhu Nath Thakur, the Respondent No. 6 and Milli Kumari, the Respondent No. 7 and find out whether Arpita Kumari who is stated to be a friend of the petitioner is illegally confined and not permitting her to go out of the house. The order noted that Arpita Kumari is required to appear in the UGC-NET examination earmarked for appointment of lecturer which is scheduled to be held between August 21, 2024 to September 4, 2024. Her confinement would take away her right to participate in the examination or not? This information is to be secured and the Court is to be apprised on the next date of hearing. The other respondents were the District Magistrate, Bhagalpur, the Superintendent of Police, Bhagalpur (Naugachiya), the Officer In-Charge Sultanganj Police Station, Patna and the Officer In-Charge Jhandapur, Bihpur, Bhagalpur besides the above mentioned Respondents. 

On August 20, 2024,  the Court's order recorded that the counter affidavit on behalf of the Superintendent of Police, Bhagalpur Naugachiya, the Respondent No. 3 along with two documents. It reads: "Even though we are satisfied that victim girl is not staying under any coercion with her parents. However, learned counsel for the petitioner submitted that due to pressure/coercion she has given her statement on 14.08.2024." Responding to the submission of Manju Sharma, the counsel for the petitioner, the Court directed the Superintendent of Police, Bhagalpur Naugachiya, the Respondent no. 3 "to arrange for presence of Arpita Kumari on the next date of hearing so as to interact with her whether has she submitted statement on 14.08.2024 was under duress or not? The police official must accompany her in a civil dress." The matter was re-listed for hearing on August 27, 2024. 

Notably, the petitioner had prayed for passing necessary direction or order for the release of the victim from her wrongful and illegal confinement in the residential house itself at the instance of her parents by way of issuing writ of Habeas corpus with the help of concerned respondent authority.

The final order of the Court was made on August 27, 2024.  It reads: "Today, Arpita Kumari is present in the Court. She is a major and she submitted that due to coercion/duress, she has given her statement on 14.08.2024 and such statement has been given on the threat by the P.S.I-Mr. Panna Lal Rai, who had visited the residence of Arpita Kumari. The aforementioned statement has been obtained in the presence of parents of Arpita Kumari. After these events, the parents of Arpita Kumari had assured her that she will not be kept in house custody and she would be free to move from the house and return. Due to act of the parents and the P.S.I-Mr. Panna Lal Rai, Arpita Kumari lost her opportunity and right to participate in the process of UGC NET examination for appointment of Lecturer. Thereby, her career has been ruined."

The judgment observed:"The Superintendent of Police, Bhagalpur, Nagauchiya, is requested to initiate action against the police officer-Mr. Panna Lal Rai about his conduct when he was on duty under the directions of this Court in the aforementioned case, resultantly Arpita Kumari lost her right to appear in the UGC Net examination earmarked for appointment of lecturer. It is also learnt that the aforementioned police officer is a probationer. During probation, if he behaves in this manner then we should imagine of his attitude after his confirmation in the post. At this juncture, Arpita Kumari, with reference to assurance given by her parents, she intends to stay with her parents. The aforementioned statement is recorded in her presence. With the above observations, present petition stands disposed of."

It is not clear whether Kumar Divyam's prayer for relief and justice got addressed. Arpita Kumari could not appear for the UGC-NET examination under the gaze of the Court. Had the Court been more prompt in safeguarding her right, it could have asked for her presence in the Court on on August 20, 2024 itself. It could have enabled her to appear for the UGC NET examination held between August 21, 2024 to September 4, 2024. The Court should have ensured that she appeared for the examination.  

From the perusal of the orders of the Court it is crystal clear that the counter affidavit on behalf of the Superintendent of Police, Bhagalpur Naugachiya, the Respondent No. 3 along with two documents misled the Court regarding coercion of the victim and her confinement.  

The question is: now that the petition has been disposed of, who will monitor compliance of Court's order seeking action against Panna Lal Rai, the police officer for his misconduct in spite of being duty under the directions of the Court.  

FIR can be quashed even after filing of chargesheet: Supreme Court

The judgment of the Supreme Court in Anand Kumar Mohatta v.State (Govt. of NCT of Delhi), 2019 11 SCC 706 pointed out that there is nothing in the words of Section 482 of Cr.P.C. which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court. It observed: "it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."

Section 482 of Cr.P.C reads as follows: - “482. Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

The Court relied on the decision in Indian Oil Corporation v. NEPC India Ltd. and others 2006 (6) SCC 736, wherein the Court observed as follows: - “13. ….. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged…..” The Court noticed a growing trend in business circles to convert purely civil dispute into criminal cases. 

The Court drew on Court's decision in Joseph Salvaraj A. v. State of Gujarat (2011) 7 SCC 59. In the case of Joseph Salvaraj A., the Court while deciding the question whether the High Court could entertain the 482 petition for quashing of FIR, when the charge sheet was filed by the police during the pendency of the 482 petition, observed: -“16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant’s FIR. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant’s FIR, charge-sheet, documents, etc. or not.”

It also relied on the decision in State of Haryana and Ors. v. Bhajan Lal and Ors.(1992). The Court has set out the categories of cases in which the inherent power under Section 482 of Cr.P.C. can be exercised.  Para 102 of the judgment reads as follows: -“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

 

Supreme Court sets aside judgment of Jharkhand High Court that denied regular bail

In Prem Prakash vs. Union of India through Enforcement Directorate (2024), the Supreme Court's Division Bench of Justices B.R. Gavai and K.V. Viswanathan set aside judgment of Jharkhand High Court which had dismissed the regular bail application of the appellant. The regular bail was sought in connection with a case registered for the offence under Sections 3 and 4 of the Prevention of Money Laundering Act (PMLA), 2002 pending before the Court of Special Judge, PMLA, Ranchi.  The bail application was under Section 45 of PMLA. 

The Court relied on  the decision in Vijay Madanlal Choudhary vs. Union of India (2022) wherein the Court categorically held that while Section 45 of PMLA restricts the right of the accused to grant of bail, it could not be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. It also relied on Court's decision in Manish Sisodia (II) vs. Directorate of Enforcement, wherein it was made amply clear that even under PMLA the governing principle is that “Bail is the Rule and Jail is the Exception”. 

The Court observed: "All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, “bail is the rule and jail is the exception” is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 of PMLA by imposing twin conditions does not re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied."

The judgement reads: we hold that the appellant has satisfied the twin conditions under Section 45. Inasmuch as from the material on record, this Court is satisfied that there are reasonable grounds for believing that the appellant is not guilty of the offence of Money Laundering as alleged under Sections 3 and 4 of the PMLA and the Court is further satisfied that the appellant is not likely to commit any offence, if enlarged on bail.

It has recorded that the Court does not think that "the appellant can be denied bail based on the pendency of the other matter. We say so in the facts and circumstances of the present case as we do not find any justification for his continued detention. The appellant has already been in custody for over one year. The Trial is yet to commence."