Accused can directly approach the High Court and Sessions Court for regular Bail, not necessary that accused should apply to the Magistrate first; SC

In a path-breaking Judgment, a two-Judge Bench of the Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail.

 The case arises out of a Special Leave Petition seeking regular bail under Section 439 of the Code of Criminal Procedure (CrPC), which was declined by the High Court of Mumbai, with the observations that it is the Magistrate whose jurisdiction has necessarily to be invoked and not of the High Court or the Sessions Judge. The prayer by the accused before the High Court was to permit him to surrender to its jurisdiction, and thus by offering himself to custody, seeking grant of regular bail under Section 439 of the Code, on such terms and conditions as may be deemed fit and proper. According to the Single Judge, when the Accused’s plea to surrender before the Court is accepted and he is assumed to be in its custody, the police would be deprived of getting his custody, which is not contemplated by law, and thus, the Accused “is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of CrPC by the Magistrate and that order cannot be passed at the High Court level.”

 While setting aside the High Court Judgement,  the Supreme Court has  elaborated the scope of Section 437 and 439 of Cr.P.C.  In Paragraph No-11, it holds; “Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being “brought before a Court”, the present provision postulates the accused being “brought before a Court other than the High Court or a Court of Session” in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts.”

 “The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word ‘custody’ the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of ‘Committal of cases to the Court of Session’ because of a possible hiatus created by the CrPC. Meaning of Custody:

"When is a person in custody, within the meaning of Section 439 CrPC?

 When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law."

 The Court comes to a conclusion that since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a Superior Court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered under Section 439 of the CrPC.

 The Court gave an extended meaning of the word “Custody” relying on  Justice Krishna Iyer, who authored Niranjan Singh v. Prabhakar Rajaram Kharote and  quoting (SCC p. 563, para 9) “He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.” If the third sentence of para 48 is discordant to Niranjan Singh, the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains us also to adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate Court.”

 Regarding the power of Sessions Court the Court proceeds as follows; “We are unable to locate any provision in the CrPC which prohibits an accused from moving the Court of Session for such a relief except, theoretically, Section 193 which also only prohibits it from taking cognizance of an offence as a Court of original jurisdiction. This embargo does not prohibit the Court of Session from adjudicating upon a plea for bail”.

 It appears to us that till the committal of case to the Court of Session, Section 439 can be invoked for the purpose of pleading for bail. If administrative difficulties are encountered, such as, where there are several Additional Session Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other Bail Applications whether post committal or as the Appellate Court, to also entertain Bail Applications at the pre-committal stage.

 Dealing with the issue on the touchstone of Constitution, the Court holds ; (Para- 7) “ Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. We are immediately reminded of three sentences from the Constitution Bench decision in P.S.R. Sadhanantham vs Arunachalam , which we appreciate as poetry in prose – “Article 21, in its sublime brevity, guards human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom.

 And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi case. So, it is axiomatic that our Constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law”. Therefore, it seems to us that constriction or curtailment of personal liberty cannot be justified by a conjectural dialectic. The only restriction allowed as a general principle of law common to all legal systems is the period of 24 hours post-arrest on the expiry of which an accused must mandatorily be produced in a Court so that his remand or bail can be judicially considered.

 The judgement is authored by Justice Vikramajit Sen, sitting along with Justice K S Radhakrishnan.

Filling up blank cheque may not always amount to material alteration: Gujarat High Court

The Gujarat High Court in the recent landmark decision in Nikhil P Gandhi v. State of Gujarat has struck down the contention that when a signed blank cheque leaf is handed over to the other party by way of security, the same can never be filled up and if it is filled up it would amount to a material alteration within the meaning of Section 87 of the  Negotiable Instruments Act, 1882 (hereinafter referred to as the “Act”).

The matter involved the issue of a blank cheque provided by the accused company, Gujarat Pipavav Port Limited to M/s. Sharda Steel Corporation, the complainant, as a security deposit for carrying out supply of Steel, Cement, etc. for the purpose of the construction of a port.

In the course of the business, a dispute arose between the accused company and the complainant firm. The complainant firm preferred three Special Civil Suits Nos. 35 of 2000, 36 of 2000 and 37 of 2000 in the Court of the Civil Judge, Senior Division, Amreli, for recovery of a certain amount raised through bills. Whilst the Civil Suits were still pending, in the year 2008 with the consent of the parties, the learned Civil Judge passed an order in the Special Civil Suit No. 36 of 2000 appointing M/s. Chhajed & Doshi Company, Chartered Accountants, as a mediator for the purpose of settling the accounts.

M/s. Chhajed & Doshi Company submitted its report dated 28th April 2009, according to which, the accused company owes a sum of Rs.15,82,23,865/- (Rupees Fifteen Crore Eighty Two Lac Twenty Three Thousand Eight Hundred Sixty Five Only) to the complainant firm. The complainant firm, thereafter, started demanding the amount from the accused company. There was lot of correspondence between the complainant and the accused company between 2010 and 2013 in that regard. Ultimately, the complainant decided to fill up the blank signed cheque, which was drawn by the then Managing Director on behalf of the company as a security. The cheque was filled up on 28th March 2013. The cheque was dishonoured by the bank with an endorsement of “account closed”.

The complainant, thereafter, issued a statutory notice and called upon the company to make good the amount mentioned in the cheque. The drawer of the cheque gave a reply denying his liability. The complainant, thereafter, proceeded to file a criminal complaint in the Court of the learned Chief Judicial Magistrate at Mahuva. Thereafter, applications were filed by the company and the directors for quashing of the criminal proceedings initiated for the offence punishable under Section 138 of the Act.

After hearing the arguments and the authorities cited by both the parties, Hon’ble Justice J.B. Pardiwala rightly observed that such circumstances would depend upon the facts of each case.

The Court observed that when a person takes a bill in an incomplete  form, he cannot be a bonafide holder for value since it can only be said  that he has taken a piece of blank paper and not a bill and that he can take it as a bill only under the authority given to his transferor. Section 20  of  the  Act would make it clear that there can be  no  material alteration of a cheque leaf only for the reason that it was subsequently filled up. But at the same time it cannot be said that whenever a signed blank cheque leaf is given, it gives authority to the holder to fill up the same according to his whims and fancies.

There may be instances where an implied authority is given to the person, at the time of entrusting a signed blank cheque containing the signature of the drawer of the cheque, to fill the columns therein. If   a   principal   or   employer   deputes   his   agent   or   employee   to purchase an article and if the dealer fills up that signed blank cheque leaf showing the exact amount covered by the bill then it cannot be said that what was handed over by the  drawer of the cheque is only a signed blank cheque leaf. In such cases an implied authority to the trader/seller of the article to fill up the cheque leaf can certainly be inferred.

The contention that when a signed blank cheque leaf  is handed over, it can never be filled up and that if it is filled up it would  amount to a material alteration within the meaning of using Section 87  of   the  Act,   does   not   stand   to   rhyme   or   reason.

The collective reading of the various provisions of the Act show that it is possible for the drawer of a cheque to give a blank cheque signed to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and present the same for payment by  the “drawee”.

Finally, the Court held that whenever a blank cheque or post-dated cheque is issued, a trust is reposed that the cheque will be filled in or used according to the understanding or agreement between the parties. If there is a prima facie reason to believe that the said trust is not honoured, then the continuation of prosecution under Section 138 of the Act would be abuse of the process of law.

Cauvery imbroglio!

State of Karnataka obviously failed in its duty to follow the S C judgement in terms of Art 141 of the Constitution of India.

CM of Karnataka talks irrelevantly, so too many political leaders of Karnataka like even Deva Gowda, Kumaraswamy, Gowda, Sadananda Gowda, so many others ministers, without rightly protecting the properties of any which happened to be there in the state during the agitation, obviously their pronouncements were literally 'contempt of court' based actions, they need be pulled up by the Apex Court directions.

Fact is 'vandalism' was perpetrated by the goons having allegiance to 'dons' in that state; 'dons' need commotions normally to perpetuate their 'ends'; but all the ministers were talking irrelevantly, not realizing that the government cannot 'take sides' in any issues but it has to be 'impartial' as far as rule of law is concerned.

One knows since 1924 on after, then British Madras government by a treaty with Mysore government, took to sharing the Cavery water as per then prevailing conditions, after all 'rains' can never occur as per one's wishes, but that do take place as per the natures dispensation, that is a realized fact even then, as no Man can control Nature, a well known universal truth.

How a modern Nature could change to one's own wishes, any 'rational man need realize.
So many River water commissions surfaced , and yet nothing rational is resolved. Commissions probably did not realize the need of suggesting changes in 'crop patterns' paradigms depending upon availability of water resources.

British Madras government properly understood perennial rivers can be harnessed that way British built Krishna barrage, and the Bukkingham Canal system that provided Krishna waters for irrigation right from Bezawada then till Madras city besides proving drinking water to city then. If British could think could we not think ? Yes Dr. K L Rao suggested the inter connecting the perennial rivers all over India, that cost was then estimated to be around Rs.10,000 crores in 1970s; but federal government under Smt Indira Gandhi could not raise thus that idea was shelved.

Then governments could think but till today no agricultural university of IIT or IISc or any could think why so too so many irrigation ministries in states or in the centre could evolve any meaningful ideas for inter connecting rivers, or modifying 'crop patters ' depending upon availability of rains depending upon so many decades of rainfall data, and the demand for food grains. Rice and Sugar alone are not just foods, there are quite a lot like 'Maize, Millets and so on, like dry crops, but we have been without brains simply convert all agricultural both wet and dry lands in non agricultural purposes as if you can live without 'any food, it is said some decades later man would consume 'worms' is the anticipation, per scientific reports already filed by several research institutions.

When so, how can we just simply mentally blow up and try to hit each other in the name of calling the the 'water resources' in a state as if it belongs to its own while water can flow any part of the state or country unrestrictedly as you can never prevent by construction of dams after all before water movement force no force of energy could contain water, we see in river Hoengo of China considered to be the 'sorrow of china' , they Chinese govt tried to put dams but all dam constructions could not sustain the force of water flow and the force just broke down all such dams and bridges; so they contrived 'tanks' and lakes where they ensured to divert the river Hoengo waters by holding waters, that really helped Chinese irrigation systems; our rivers except like Brahmaputra or Irawadi or Indus or Ganges, Narmada could be so used so too Godavari Krishna, Cavery, pampa etc by duly diverting excess flows in containment catchment areas besides rain harvesting so that drinking water could be easily assured, besides some for irrigation purposes, as population growth none can contain however much we talk about 'family planning' and the like .

Therefore we need to be rational. We need to be good thinkers. But for thinking you can never achieve anything on earth.

No doubt all resources do get recycled; that we need to know. We can waste as we waste water resources into seas by draining and recycling by cloud formations that pour in where we could have good 'forests, mountains, etc that natural formations only cause rains, not just great ideas like trying to use air planes to force clouds to convert into rains at the places web want; after all you don't control; air or winds even they may appear to be simple but in fact most unharnessable nature productions.

Watson thought well and thus created the massive computers initially and many others like Ada Byron and others too contributed the development of . mini computers , how just by creative 'thinking process' not by waging wars or talking irrationally , Hitler tried to be the police force of the world, that way he waged wars, we lost millions of lives , could he achieve anything meaningful.
Therefore, peaceful 'thinking process' alone could solve issues; not by burning properties like lorries, buildings, or damaging properties.

Judiciary rightly gives decisions for helping you to think solutions; nor meaninglessly fighting against each other set of peoples; that way 'terrorism' is failing that you all see, when so why don't you mentally modify yourselves is the question before man.
Never anger ever saved any in the whole history of man. if you review the history to understand yourself.

First harness 'Angers' , 'Violence' that way the idea of Non violence was found for peaceful co-existence. that way pancha sheel idea Nehru and Chou en Lai signed in 1960s, that way Non violence movement surfaced then that way Nehru -Tito Non Alliance Treaty idea came. But yet without thinking if we quarrel among ourselves, how can we be global citizens, if we cannot understand or comprehend what is globalization. How other nations would trust you if you become so white hot anger, and destroy properties. How any foreign investors would land at a place of a man who is simmering with anger and violence.

All that happened in the last few days might make the exiting IT companies in Bangalore to think is it worth to continue their location to be Bangalore or Bengaluru or whatever you might call or any place. This situation might help thinking of Nasscom members to shift to Amarawati region a new AP state capital in the making as AP men compared to quite a lot of Indian states are very cool since Amarawati is located in indeed a coastal AP where the lands too basically fertile, and poverty is not so high; besides, one needs to realize, IT industry could be anywhere where human concentration is just thin, so too the concentration of landed wealth; just 'dry lands' even silicon valleys like deserts might fit.

Bangaloreans must realize their follies if they continue to become white hot anger for everything; that way Bengaluru today is not the Bangalore of the 1960s or 1970s or early 1980s. So Karnataka man need to realize and mend his ways. If not they might lose the growth they registered so far, I warn.

Be a thinking citizen, else terror itself would destroy very Bangalore economic growth.