List of Current Affairs

Source: Orissa High Court

Why in News?

Recently, the Orissa High Court has held that there is no statutory legal bar for an accused in custody in connection with a case to pray for grant of anticipatory bail in another case registered against him.

• The aforesaid observation was made in the matter of Sanjay Kumar Sarangi & Ors v. State & Anr.

What was the Background of Sanjay Kumar Sarangi & Ors v. State & Anr. Case?

• In this case, the High Court was dealing with a batch of petitions by persons who were already in jail for their alleged involvement in one criminal case but who later sought anticipatory bail in connection with separate criminal cases registered subsequently against them.
• These applications for anticipatory bail involve the following question of law whether an application for anticipatory bail is maintainable at the instance of a person who is already in custody in connection with a different case.
• The High Court held that there is no legal bar to prevent an accused person from filing for anticipatory bail even before his release from prison.
• The High Court held that their anticipatory bail applications were maintainable and allowed the same.

What were the Court’s Observations?

• Justice Shashikant Mishra observed that there is no provision in the Criminal Procedure Code, 1973 (CrPC) that takes away the right of the accused to seek his liberty or of the investigating agency to investigate into the case only because he is in custody in another case. There is no statutory bar for an accused in custody in connection with a case to pray for grant of anticipatory bail in another case registered against him.
• It was further stated that as it is not possible to arrest a person already in custody, it follows that when, on being released from custody in the former case, he is sought to be arrested in the new case, there is no reason why he shall be restrained from moving the Court beforehand to arm himself with necessary protection in the form of anticipatory bail to protect himself from such a situation.

What is an Anticipatory Bail?

About:

• Section 438 of CrPC deals with the anticipatory bail.
• This section contains directions for grant of bail to person apprehending arrest. It states that-

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely:---

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;

either reject the application forthwith or issue an interim order for the grant of anticipatory bail.


Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days' notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including--

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in confirmity with the direction of the Court under sub-section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).

Objectives:

• The reason for enactment of Section 438 in the Code was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country.

Essential Elements:

• Section 438 of CrPC is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.
• This Section is made applicable only in the event of there being an apprehension of arrest.
• It envisages for seeking pre-arrest bail is that the applicant must have reason to believe that he may be arrested on accusation of having committed a non-bailable offence.

Case Laws:

• In the case of Badresh Bipinbai Seth v. State of Gujarat (2015), the Supreme Court held that Section 438 of CrPC should be interpreted liberally in light of Article 21 of the Constitution of India, 1950 which grants freedom of life and personal liberty.
• In the case of Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court held that the anticipatory bails should not be time-bound.

Source: Punjab & Haryana High Court

Why in News?

Recently, the Punjab & Haryana High Court has held that when a minor who is of the age of discretion willingly leaves the house of her parents with the accused, he cannot be charged with the offence of kidnapping.

What was the Background of this Case?

• In the present case, the accused was booked in January this year on the complaint moved by the girl’s father.
• He was booked by Fatehgarh Sahib Police for allegedly kidnapping a 17-year-old girl to compel her to marry him.
• The accused applied for bail before the Punjab & Haryana High Court.
• The accused said that he was falsely implicated in the case. He submitted that he was in a relationship with the girl, and they wanted to marry each other but her family members were against it.
• While granting relief to the accused, the Court reasoned that since the girl was 17 years and 4 months old, she was of the age of discretion and at the verge of attaining majority.

What were the Court’s Observations?

• Justice Manisha Batra observed that when a minor who is of the age of discretion willingly leaves the house of her parents with the accused, he cannot be charged with the offence of kidnapping.
• It was stated it is a well settled law that the question of taking of the minor from her lawful guardianship must be decided with reference to all the circumstances including whether the girl was of sufficient maturity and intellectual capacity to think for herself and make up her own mind.
• It was further stated that it falls short of an inducement to the prosecutrix to slip out of keeping of her lawful guardian and does not tantamount to taking within the meaning of definition of kidnapping under Section 361 of the Indian Penal Code, 1860 (IPC).

What is the Offence of Kidnapping?

Kidnapping from Lawful Guardianship

• Section 361 of IPC deals with kidnapping from lawful guardianship. It states that-

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation. —The words lawful guardian in this section includes any person lawfully entrusted with the care or custody of such minor or other person.

Exception. —This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Punishment for kidnapping

• Section 363 of IPC deals with the punishment for kidnapping.
• It states that whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Source: Allahabad High Court

Why in News?

Recently, while considering the visitation rights of a father who filed petition to meet his child in mother’s custody bench of Justice Dr. Yogendra Kumar Srivastava held that court is not inclined to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus in the present case, particularly when the relief sought is restricted to visitation rights.

• The aforesaid observation was made in the matter of Mithilesh Maurya and Another v. State of UP.

What was the Background of Mithilesh Maurya And Another v. State of UP Case?

• The petitioner no. 1 is the husband, and the respondent no. 4 is his wife.
• The respondent no. 4 (wife) left her matrimonial home on 19^th August 2018 along with their infant daughter of about one month old at that time.
• Proceedings under Sections 9 and 13 of the Hindu Marriage Act, 1955, maintenance proceedings under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) and a criminal case are pending between the parties.
• The petitioner no. 1 (husband) was seeking visitation rights to meet his minor daughter (petitioner no. 2) in the present writ petition.
• The respondent no. 4 (wife) has been in continuous custody of the minor daughter since August 2018 after leaving the matrimonial home.

What were the Court’s Observations?

• The court held that a writ of habeas corpus is an extraordinary remedy and not a matter of course, especially when sought against a parent for the custody of a child.
• The court observed that in matters of custody, the welfare of the child is of paramount consideration, and the court's role is guided by the principle of 'parens patriae jurisdiction'.
• The court noted that proceedings related to matrimonial disputes are pending before the Family Court, and the appropriate remedy for seeking visitation rights would be to move an application before the Family Court.
• The writ petition was dismissed, with the observation that the findings are prima facie and without prejudice to the rights and contentions of the parties in the proceedings before the court concerned.

What is the Concept of Visitation Rights under Law?

• About:
  • Visitation rights, also known as access rights or custodial rights, refer to the legal provisions that govern the right of a parent to visit and spend time with their child, even if the child is living with the other parent or a legal guardian.
  • These rights are determined during divorce proceedings or in cases where the parents are separated and living apart.
  • The primary objective of granting visitation rights is to ensure that the child maintains a healthy and meaningful relationship with both parents, as long as it is in the best interests of the child.
• Points of Consideration While Granting Visitation Rights:
  • Visitation rights are governed by various laws, including the HMA, the Special Marriage Act, 1954, the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956.
  • The primary consideration in determining visitation rights is the best interests of the child.
  • Both parents have an equal right to visitation, subject to the court's discretion based on the specific circumstances of the case.
  • In certain cases, such as matters of domestic violence or concerns about the child's safety, the court may order supervised visitation, where a third party is present during the visits.

What is the Provision Related to Custody of Child under Hindu Marriage Act, 1955?

Section 26 of HMA: Custody of children.-

• Interim Orders and Provisions in Decree:
  • In any proceeding under HMA, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
• Post-Decree Orders and Provisions:
  • The court may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.
• Modification of Orders and Provisions:
  • The court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
• Proviso for Maintenance and Education:
  • The section provides that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.