Bail & Personal Liberty: Important Judgments Of 2020

Relief under Writ of Habeas Corpus 1. High Courts Have Power To Grant Bail By Invoking Article 226 In Suitable Cases: Supreme Court [Arnab Manoranjan Goswami v. State of Maharashtra] A Division Bench comprising Justices DY Chandrachud and Indira Banerjee observed that a High Court in its jurisdiction under Article 226 of the Constitution of India has the power to grant bail in a suitable case. "In an application under Article 226, the High Court must be circumspect in exercising its powers [to grant bail] on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power," it observed while granting bail to Arnab Goswami in a habeas corpus petition. Also Read: 'Liberty Is Not A Gift For Few': Supreme Court Directs High Courts, District Courts To Monitor Pendency Of Bail Applications2. 'Dr Kafeel Khan's Speech Does Not Promote Hatred Or Violence, It Gives A Call For National Integrity And Unity Among Citizens': Allahabad HC [Nuzhat Perween v. State of UP & Anr.] A Division Bench comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh revoked NSA charges against Dr. Kafeel Khan and directed the Government to immediately release him. The Court observed that Dr. Khan's speech at the Aligarh Muslim University on December 13, 2019, amidst the anti-CAA protests, that led to his arrest and subsequent detention under the stringent provisions of the National Security Act, "does not disclose any effort to promote hatred or violence." "A complete reading of the speech primafacie does not disclose any effort to promote hatred or violence. It also no where threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent," the Court sternly remarked. The Bench also noted that the detention order was issued in February 1010 whereas the alleged incident had occurred in December 2019. In this backdrop it was held- "By very nature, the order of preventive detention could have been issued to prevent an occurrence but not punitively or merely by way of a consequence of the occurrences that were two months old." Also Read: Chief Justice Govind Mathur, Who Quashed Kafeel Khan's Detention, Has A Consistent Record Of Upholding Fundamental Rights 3. Even if The Remand Order is Illegal, Still The Writ of Habeas Corpus Is Not An Effective Remedy: Bombay High Court [Ankit Ghanshyam Mutha v. Union of India & Ors.] Placing reliance on 2014 ruling of the Supreme Court in Sourabh Kumar (through father) v. Jailor Koneila Jail, a division bench of Justices SS Shinde and NB Suryawanshi held that the Writ of Habeas Corpus is not maintainable if there is order of remand and the current remedy would be to seek bail. It held, "The legal position as laid down by the authorities of the Supreme Court and this Court makes it clear that even if the remand order is illegal, which is passed mechanically in a cavalier fashion, still the remedy of the Writ of Habeas Corpus cannot be said to be an efficacious remedy, but in terms of the Hon'ble Supreme Court filing of Bail Application in such circumstances is appropriate remedy." Anticipatory Bail 1. Anticipatory Bail Application Not Maintainable By A Person Who Apprehends Arrest After Cancellation Of Regular Bail: Supreme Court [Manish Jain v. Haryana Pollution Control Board] A bench comprising Justices Navin Sinha and KM Joseph held that a person cannot file an anticipatory bail application apprehending arrest following the cancellation of his regular bail. This is because a person released on bail remains under the 'constructive custody' of law and a person in custody cannot seek anticipatory bail, explained the top court. 2. Anticipatory Bail Cannot Be Limited To A Fixed Period Except In Special And Peculiar Circumstances: SC [Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr.] A Constitution Bench of Justices MR Shah, S. Ravindra Bhat, Arun Mishra, Indira Banerjee and Vineet Saran held that anticipatory bail should not invariably be limited to a fixed period. But if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so. The Court also held that life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial except in special and peculiar cases. It overruled the judgment in Salauddin Abdulsamad Shaikh v. State of Maharashtra, 1996 (1) SCC...

Bail & Personal Liberty: Important Judgments Of 2020

Akshita Saxena

Summation of important orders on bail/ personal liberty, passed by the Supreme Court & various High Courts in 2020.

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