List of Current Affairs

Source: Supreme Court 

Why in News? 

A bench of Justices Ujjal Bhuyan and J.B. Pardiwala held that an accused has a right to speedy trial and bail cannot be withheld as a punishment. 

• The Supreme Court held this in the case of Javed Gulam Shaikh v. State of Maharashtra and Another. 

What is the Background of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another Case? 

• The Appellant in this case was apprehended by the Mumbai police and was found in possession of counterfeit notes of denomination of Rs. 2000. 
• The First Information Report (FIR) was filed against the appellant for offences under Section 489B, 489C, 120B read with Section 34 of Indian Penal Code, 1860 (IPC). 
• The investigation was ultimately taken over by the National Investigating Agency. 
• This appeal arises from order passed by the High Court of Bombay declining to release the appellant on bail in connection with prosecution under the provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

What were the Court’s Observations? 

• The Court granted bail to the appellant by keeping in mind the following three circumstances: 
  • The appellant is in jail as an undertrial prisoner for past four years. 
  • The trial Court has not been able to frame the charge till this day. 
  • The prosecution intends to examine not less than eighty witnesses. 
• The Court observed that an accused is entitled to speedy trial as enshrined under the Constitution. 
• It is a well settled principle of law that bail is not be withheld as a punishment. 
• The Court held that if the State cannot provide speedy trial (which is a fundamental right under Article 21 of the Constitution of India, 1950), the State should not oppose the plea of bail on the ground that the crime committed is serious.  
• Also, the Court held that the right to speedy trial can be said to be infringed thereby violating Article 21 of the COI.  

What is Bail?  

• The term Bail has not been defined under the Criminal Procedure Code, 1973 (CrPC). 
• Only the terms ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of the Code. 

What are the Different Types of Bail? 

• Regular Bail: The court orders the release of a person who is under arrest, from Police custody after paying the amount as bail money. An accused can apply for regular bail under Section 437 and 439 of CrPC (Section 480 and Section 483 of BNSS) 
• Interim Bail: This is a direct order by the court to provide temporary and short-term bail to the accused until his regular or anticipatory bail application is pending before the court. 
• Anticipatory Bail: A person under apprehension of arrest for a non-bailable offence may apply for anticipatory bail to the High Court or the Court of Session under Section 438 of CrPC (Section 482 of BNSS). 

What is the Maximum Period for which Undertrial Prisoner can be Detained under Section 479 of BNSS? 

• Section 479 (1) of Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) provides where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail: 
  • Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:  
  • Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond:  
  • Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.  
  • Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded. 
• The Clause (2) provides that: Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. 
• The Clause (3) provides that the Superintendent of jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.  

Comparison between Section 479 of BNSS and Section 436A of CrPC 

• The comparison between the two provisions is as follows: 

What are the New Features Introduced by Section 479 of BNSS? 

• The new features introduced by Section 479 of BNSS are as follows: 
  • There is a provision for release of first-time offenders in case they have undergone detention of period extending upto one third of the maximum period of imprisonment specified for such offence. 
  • A new provision added by way of sub section 2 is that an under-trial prisoner shall not be released on bail if an investigation, inquiry or trial in more than offence or in multiple cases is pending against him. 
  • Further, sub section 3 is added which provides that bail can be granted on the report of the Superintendent of jail. 

What are Landmark Cases cited in this Case? 

• Gurbaksh Singh Sibbia v. State of Punjab (1980): 
  • This is the landmark case on Anticipatory bail. 
  • The Court in this case held that the object of the bail is to secure attendance of the accused at the trial. 
  • The proper test to be applied while determining if the bail should be granted or refused is whether it is probable that the party will appear to take his trial. 
• Hussainara Khatoon v. Home Secy. State of Bihar (1980): 
  • The Court in this case declared that the right to speedy trial of offenders facing criminal charges is implicit in the broad sweep and content of Article 21 of the Constitution. 
• Abdul Rehman Antulay v. R.S. Nayak (1992): 
  • It is the obligation of the State or complainant to proceed with the case with reasonable promptitude. 
  • In a given case where the accused demands speedy trial and is not given one may be a relevant factor in his favour. 
• Satender Kumar Antil v. Central Bureau of Investigation (2022): 
  • The Court held that the provision contained in Section 436 A of CrPC will apply to the Special Acts also in the absence of any specific provision. 
  • The court also stated that certain responsibility and accountability is expected form the courts, authorities and police officers to follow the concept presumption of innocence which entails that no purpose is fulfilled by arresting a person until proven guilty.

Source:  Supreme Court 

Why in News? 

Recently the bench of Justices JB Pardiwala and Ujjal Bhuyan has delineated stringent criteria for suspending life sentences, ruling that such relief is contingent upon prima facie evidence of an unsustainable conviction and a high probability of a successful appeal.  

• The Supreme Court gave the observation in the matter of Bhupatji Sartajji Jabraji Thakor v. The State of Gujarat . 
• This judicial pronouncement significantly narrows the scope for suspension of life sentences, potentially altering the landscape of post-conviction relief in Indian criminal jurisprudence.  

What was the Background of Bhupatji Sartajji Jabraji Thakor v. The State of Gujarat? 

• The petitioner (Bhupatji Sartajji Jabraji Thakor) and a co-accused were tried in Sessions Court for murder under Section 302 of the Indian Penal Code, 1860 (IPC). 
•  During the trial, the petitioner was out on bail. 
• The trial court convicted the petitioner and sentenced him to life imprisonment, while acquitting the co-accused. 
• The conviction was based on the testimony of a single eyewitness. 
• The petitioner filed a Criminal Appeal in the High Court challenging the trial court's conviction. 
• The appeal was admitted by the High Court. 
• The petitioner also filed a miscellaneous criminal application under Section 389 of the Criminal Procedure Code, 1973(CrPC), seeking suspension of the life sentence. 
• The High Court rejected the application to suspend the life sentence. 
• The petitioner has now approached the Supreme Court with the present petition. 
•  The petitioner's counsel has pointed out mitigating circumstances: 
• The petitioner needs to support his widowed daughter-in-law and her three minor children. 
• The family is in a difficult financial situation. 
• The appeal from 2023 is likely to take considerable time before it's heard. 
• The Supreme Court has issued a notice to the State of Gujarat to respond to the plea for bail based on these mitigating circumstances. 

What were the Court’s Observations? 

• The Supreme Court has delineated distinct criteria for suspension of fixed-term sentences versus life imprisonment, mandating a more stringent test for the latter. 
• For life sentences, the Court held that suspension is warranted only if there exists prima facie evidence of the conviction's legal unsustainability, without necessitating a re-appreciation of evidence. 
• The Bench elucidated that while appellate courts may liberally exercise discretion in suspending fixed-term sentences, life imprisonment suspension requires clear indication of the conviction's potential reversal on appeal. 
• Applying this legal test to the case at bar, the Court upheld the High Court's denial of suspension, finding no palpable grounds to conclude the conviction was unsustainable or that the appellant had a substantial likelihood of a successful appeal. 
• This ruling establishes a higher threshold for suspension of life sentences, emphasizing the need for apparent legal infirmities in the conviction rather than mere re-examination of evidence. 

What is Life Imprisonment? 

• Section 4(b) of the Bharatiya Nyaya Sanhita 2023 (BNS) defines life imprisonment.  
• Section 6 of BNS states that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided. 
• Earlier Section 55 of the IPC states that in every case in which a sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years. 
  • The state government can grant remission or commute the sentence under Sections 432 and 433 of the CrPC, subject to certain conditions and limitations. 

What are the Relevant Legal Provisions Involved in it? 

• Section 430 of Bhartiya Nagarik Suraksha Sanhita, 2023(BNSS): 
  • Section 430 of BNSS deals with the Suspension of sentence pending appeal; release of appellant on bail. 
  • Earlier it was dealt with Section 389 of CrPC. 
  • Sub section(1) of Section  states that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond or bail bond:  
    • Proviso (1) provided that the Appellate Court shall, before releasing on his own bond or bail bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: 
    • Proviso (2) provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.  
  • Sub section (2) states that the power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. 
  • Sub section (3) state that where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, — 
    • where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years; or  
    • where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.  
• Sub section (4) state that when the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. 

What are the Case Laws Related to Suspension of Conviction? 

• Omprakash Sahni v. Jai Shankar Chaudhary and Anr.(2023): 
  • The Supreme Court has held that in order to suspend the substantive order of sentence under Section 389 of CrPC, there ought to be something apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable.   
• State of Rajasthan v. Salman Salim Khan, (2015): 
  • The Supreme Court held that the power of suspension of conviction shall be used only in exceptional circumstances where failure to stay conviction would lead to injustice and irreversible consequences and thus of some foreign country is not granting permission to visit said country on the ground that accused has been convicted of an offence and has been sentenced under Indian Law said order cannot be a ground to stay order of conviction. 
• State of TN v. A Jaganathan, (1996): 
  • The Supreme Court has laid down the guideline to be followed in exercising the discretion for suspension of conviction and sentence during the pendency of the appeal or revision. Certain Government servants were convicted for serious criminal offences (sections 392, 218 and 466 IPC). Suspension of conviction and sentence without considering the moral lapses of the convicts were held to be not a proper exercise of discretion.

Source: Allahabad High Court 

Why in News? 

Recently, the Allahabad High Court in the matter of Mahendra Kumar Singh v. Rani Singh has held that to infer whether there is breakdown of marriage irretrievably on the ground that parties are not staying together for a long period should be made only by considering the facts and circumstances of the case. 

What was the Background of the Mahendra Kumar Singh v. Rani Singh Case? 

• In this case, parties tied up in wedlock in 1999 and had two children out of it. 
• After few years father of the appellant died and thereafter, appellant was posted in Mirzapur, while his wife and children stayed back with his mother in Varanasi till the death of appellant's mother. 
• The appellant later filed for divorce before the Family Court. 
• The Appellant stated that he and his wife (defendant) had good relations because of the care his wife provided to his mother and his mother also made a Will in favor of the defendant. 
• The Appellant argued that the defendant used to perform cruelty with him by stopping him from visiting his parents, by stopping him from performing last rites of his parents, etc. 
• The appellant also argued that as the couple stayed separately for a long time, there is an irretrievable breakdown of marriage.  
• The Family Court dismissed the plea for divorce on the ground of irretrievable breakdown of marriage and stated that there is no evidence to prove the act of cruelty by the defendant against appellate.  
• The appellant then filed an appeal before the Allahabad High Court.  

What were the Court’s Observations? 

• It was observed by the Allahabad High Court that the findings of the lower court are correct. 
• It was also observed by the High Court that the grounds of irretrievable breakdown of marriage should be closely scrutinized before granting divorce as the reason for such separation may differ on a case-to-case basis. 
• The High Court stated that in the present case, the reason for separately living was that the husband went for job and the wife stayed with his mother to take care of hers, this could not be considered as a reason for a ground for irretrievable breakdown of marriage. 
• The High court also stated that there is no witness, no proper time and date and no relevant evidence to prove the cruelty by wife against the husband and her towards the mother of her husband proves otherwise.  
• Therefore, the High Court dismissed the appeal. 

What is the Concept of Divorce under Hindu Marriage Act, 1955? 

Divorce: 

• In a literal sense, "divorce" refers to the legal dissolution of a marriage between two individuals. 
• Historically, within Hindu Dharma Shastra, marriage was seen as a sacred and indissoluble bond, with no provisions for divorce until the enactment of the Hindu Marriage Act in 1955 (HMA). 
• This Act, introduced grounds for divorce under Section 13, allows parties to petition a competent court for a divorce decree.  
• Dissolution of a marriage required one spouse to be found guilty of behavior that fundamentally undermined the marriage.  

Types of Divorce: 

• There are following types of Divorce: 
  • Contested divorce: 
    • When either party may take a divorce 
    • When the wife can alone take a divorce 
  • Irretrievable breakdown of marriage 
  • Divorce by mutual consent 
  • Divorce by custom 

Grounds for Divorce: 

• Section 13 of HMA deals with the grounds for divorce. — 
  • Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—  
    • Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or  
    • Has, after the solemnization of the marriage, treated the petitioner with cruelty; or  
    • Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or 
    • Has ceased to be a Hindu by conversion to another religion; or  
    • Has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.  

Explanation. —In this clause, — 

The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;  

The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] been suffering from venereal disease in a communicable form; or  

• Has renounced the world by entering any religious order; or  
• Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;  

Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]  

• Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—  
  • That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or  
  • That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 
• A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, —  
  • In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner. 
  • Provided that in either case the other wife is alive at the time of the presentation of the petition; or  
  • That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or 
  • That in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.  
  • That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
    Explanation. —This clause applies whether marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.  

Difference Between Divorce and Judicial Separation: 

What is the Concept of Irretrievable Breakdown of Marriage? 

Origin: 

• This concept was originated in New Zealand in 1921 through the historical decision in Lodder v. Lodde.  

Meaning: 

• The irretrievable breakdown of marriage is a situation in which the husband and wife have been living separately for a considerable period and there is absolutely no chance of them living together again.  
• It means a marriage has no scope to be reconciled and if reconciled and divorce not granted then it will amount to cruelty. 

Validation: 

• This Principle has attained informal validity as it has been evoked in several judicial decisions granting divorce. 
• In India, incorporation of such ground for divorce in HMA has not yet been made but it has been strongly suggested by various Law Commission Reports and a Bill was presented in this regard in the Parliament titled The Marriage Laws (Amendment) Bill, 2010. 

Article 142 of the Constitution of India, 1950: 

• This concept is also covered under Article 142 of the Constitution of India, 1950 where Supreme Court has the discretionary power to grant divorce on the ground of Irretrievable Breakdown of Marriage after considering the reason of separation, time of separation, and other factors. 

Case Laws

• Naveen Kohli v. Neelu Kohli (2006), In this case it was held that when marriage has no substance then it is said to be broken irretrievably. 
• Kanchan Devi v. Promod Kumar Mittal (2010), the Delhi High Court reiterated the principle that if a marriage has broken down irretrievably and there is no chance of the spouses coming together, it is a valid ground for divorce. 
• Shilpa Sailesh v. Varun Sreenivasan (2023), the Supreme Court has clarified that Article 142 of the COI does not confer a right of divorce on the parties if the marriage has broken down, rather it is a matter of discretion that only the Supreme Court can exercise by analyzing the various factors. These factors may include the period of separation, the nature of the allegations made by the parties, how many times the courts have intervened, etc.