NEW DELHI, (PTI): The Supreme Court on Monday held that default bail granted to an accused can be cancelled on merits if a strong case is made out on filing of the charge sheet on conclusion of investigations and there are ”special reasons”.

Rejecting the submission that bail cannot be cancelled on merits once an accused is released on default bail, the court said if the argument is accepted then this would be giving a ”premium” to lethargic probe and frustrate the justice.

A bench of Justices M R Shah and C T Ravikumar said mere filing of charge sheet will not result in cancellation of the bail unless the court is satisfied that a strong case is made out that the accused has committed a non bailable offence.

”Mere filing of the charge sheet subsequent to a person is released on default bail under Section 167(2) CrPC cannot be a ground to cancel the bail of a person, who is released on default bail.

”However, on filing of the charge sheet on conclusion of the investigation, if a strong case is made out and on merits, it is found that he has committed a non-bailable offence/crime, on the special reasons/grounds and considering Section 437(5) and Section 439(2) CrPC, over and above other grounds on which the bail to a person, who is released on bail can be cancelled on merits,” the bench said.

Under section 167 (2) of the CrPC, an accused becomes entitled to grant of statutory bail if the probe agency fails to file the charge sheet in the trial court within the stipulated period of either 60 or 90 days.

The top court said there is no absolute bar that once a person is released on default bail under Section 167(2) CrPC, his bail cannot be cancelled on merits.

It said the bail granted to an accused can be cancelled on other general grounds like tampering with the evidence/witnesses, not cooperating with the investigating agency and/or not cooperating with the concerned trial court etc.

”The submission that once an accused is released on default bail under Section 167(2) CrPC, his bail cannot be cancelled on merits is accepted, in that case, it will be giving a premium to the lethargic and/or negligence, may be in a given case of deliberate attempt on the part of the investigating agency not to file the charge sheet within the prescribed time period.” The top court said even if the accused has committed a very serious offence like under the Narcotic Drugs and Psychotropic Substances Act(NDPS) or murder and he manages through a convenient investigating officer not to file the charge sheet within the prescribed time limit and gets released, it may lead to giving a premium to illegality and/or dishonesty.

The observations by the court came while hearing an appeal filed by the Central Bureau of Investigation (CBI) seeking cancellation of the bail to Erra Gangi Reddy in connection with the murder of former Andhra Pradesh Minister Y S Vivekananda Reddy.

The top court transferred the matter to the High Court of Telangana at Hyderabad and directed it to consider, decide and dispose of the application for cancellation of the bail on merits and in light of the observations made.

”As the High Court has not at all considered on merits the application for cancellation of the bail, the matter is to be remitted to the High Court for considering the said application afresh in accordance with law and on merits and in light of the observations made,” it said.

Vivekananda Reddy, younger brother of late Andhra Pradesh Chief Minister Y S Rajasekhara Reddy and uncle of incumbent Chief Minister Y S Jagan Mohan Reddy, was found murdered at his residence in Pulivendula on March 15, 2019. (PTI)

NEW DELHI, (PTI): The Supreme Court on Monday dismissed a plea by BJP leader and former union minister Syed Shahnawaz Hussain challenging the Delhi High Court order for registration of an FIR against him on a woman’s complaint alleging rape.

”Let’s there be a fair investigation and, if there is nothing, it will exonerate you,” a bench of Justices S Ravindra Bhat and Dipankar Datta told the counsel appearing for Hussain.

Senior advocates Mukul Rohatgi and Siddharth Luthra, appearing for Hussain, told the bench that complaints after complaints were filed by the complainant woman against the politician.

”There are complaints after complaints which were investigated by the police and nothing was found. It cannot go on and on,” Rohatgi argued, adding there was a ”series of consistent attacks” against Hussain.

However, the bench observed, ”We find no reason to interfere.” The high court had on August 17 last year dismissed Hussain’s plea challenging a trial court order directing the Delhi Police to register an FIR against him, saying there was no perversity in the 2018 order.

The top court had on August 22, 2022 stayed the operation of the high court order.

During the earlier hearing in the matter before the apex court, Hussain’s counsel had argued that the complaint was ”bogus” and ”malicious”.

In 2018, a Delhi-based woman had approached a lower court seeking registration of an FIR against Hussain for alleged rape, which the BJP leader has denied.

A magisterial court had on July 7, 2018 ordered registration of an FIR against Hussain, saying a cognisable offence was made out in the complaint.

This was challenged by the BJP leader before a sessions court which had dismissed his plea.

In its order on Hussain’s appeal, the high court had said, ”There is no merit in the present petition. The petition is dismissed. The interim orders (for stay on action against Husssain) stand vacated. The FIR be registered forthwith. The investigations will be completed and a detailed report under Section 173 CrPC be submitted before the learned MM (metropolitan magistrate) within three months.” The high court had also noted that while reference was made in the police’s status report to the recording of the statement of the prosecutrix on four occasions, there was no explanation as to why the FIR was not lodged.

”The FIR only puts the machinery into operation. It is a foundation for the investigation of the offence complained of. It is only after investigations that the police can come to the conclusion whether or not an offence had been committed and if so by whom. In the present case, there seems to be a complete reluctance on the part of the police to even register an FIR,” the high court had said. (PTI)

NEW DELHI, (PTI): A statement made by a minister cannot be attributed vicariously to the government even when applying the principle of collective responsibility, the Supreme Court said on Tuesday.

A five-judge Constitution bench headed by Justice S A Nazeer said no additional restrictions against free speech can be imposed except those mentioned under Article 19(2) of the Constitution.

”Statement made by a minister even if traceable to any affairs of state or protecting the government cannot be attributed vicariously to the government even applying the principle of collective responsibility.

”Fundamental right under Article 19(1)(a) can be exercised even against other instrumentalities other than the state,” the bench, also comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, said.

Justice B V Nagarathna, who was also part of the bench, wrote a separate judgement and said freedom of speech and expression is a much needed right so that citizens are well informed and educated on governance.

She said hate speech strikes at the foundational values by making society unequal and also attacks citizens from diverse backgrounds especially ”in a country like us that is ‘Bharat’.” The judgement came on a question of whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression. (PTI)

THANE, (ANI): A Thane Sessions court on Monday issued notice to the Waliv Police (in Palghar district of Maharashtra) to file their reply on actor Sheezan Khan’s bail plea, who is accused in actor Tunisha Sharma’s death case and posted the hearing for January 7.

Television actor Sheezan Khan on Monday filed the bail application in the Vasai court after which the court has given a date of January 7 for the next hearing of the case.

Earlier, on Monday the family of Sheezan Khan alleged that Tunisha’s depression was due to her childhood trauma and accused the deceased’s mother of it. Addressing a press conference, Sheezan’s sister and co-actor Falaq Naaz, accused Tunisha’s mother of “neglecting” her and said that the deceased actor’s depression was due to her childhood trauma.

“Tunisha’s mother accepted that she has been neglecting Tunisha and didn’t take care of her. Tunisha’s depression was due to her childhood trauma,” said Falaq Naaz.

Falaq Naaz also denied that Sheezan had any other girlfriend, than Tunisha and called it a false narrative being spread.

“Sheezan didn’t have any other girlfriend. That girl was called to record her statement. There’s no secret girlfriend,” said Falaq Naaz. Incidentally, Falaq had on the day of Tunisha’s cremation announced that they would speak to the media and put their side of the story.

Sheezan Khan is the reported former boyfriend and co-star of 21-year-old Tunisha, who was allegedly found hanging at a TV serial set on December 24, a fortnight after the two broke up their months-long relationship. He was arrested on charges of abetment to suicide on December 25. So far, the police have recorded the statements of 27 people in the matter. (ANI)

KOCHI, (PTI): The Kerala High Court has declared as unconstitutional the stipulation of one year of separation or more for filing a divorce petition by mutual consent under the Divorce Act, saying it is violative of fundamental rights.

A division bench of the high court comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen also observed the Union government should seriously consider having a uniform marriage code in India to promote common welfare and the good of spouses in matrimonial disputes.

Observing that the law differentiates parties based on religion in regard to welfare in a matrimonial relationship, the high court said in a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion.

”The state’s concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good,” it said.

The High Court gave this order on a plea filed by a young Christian couple challenging the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 as being violative of fundamental rights.

Addressing the question whether spouses have the right to separate their marriage mutually before the aura of the marriage period of one year vanishes, the court held that the fixation of the minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental right and ”accordingly, strike it down”.

”W.P.(C).No.28317/2022 is allowed declaring that the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A is violative of fundamental right and is declared unconstitutional,” it said.

The high court also directed the family court to dispose of the divorce plea filed by the couple within two weeks and grant a decree of divorce without insisting on further presence of parties.

It observed that the legislature’s competence to enact laws to regulate divorce cannot be doubted as it has an avowed intention to uphold the common good and welfare of the people and society.

”The state knows what is best for the couple and the community. The grounds of divorce on a fault basis have regulated divorce but in a practical sense, it has resulted in hardships rather than in promoting welfare. The impact of welfare objectives must reflect on the parties,” the court said.

”Today, the family court has become another battleground, adding to the agonies of parties seeking a divorce. This is obvious for the reason that the substantial legislation enacted prior to Family Courts Act was fashioned on a platform to adjudicate upon adversarial interests rather than to promote the common interest or good.

”The time has come for a change in the law applicable to the parties on a common uniform platform,” the high court said. (PTI)