Stringency in the Indian Bail System

Conditional release of a person accused of a crime pledged for the appearance in court on a due date is known as bail. There are three kinds of bail in India. Regular bail, interim bail and lastly anticipatory bail. Regular bail is when a person accused is in police custody after which bail is applied for under section 437 and 439 of the Criminal Procedure Code (CrPC). Interim Bail is granted for a short period of time before the regular or anticipatory bail is granted and anticipatory bail is granted under section 438 of the CrPC by either the sessions Court or the High Court when a person feels that he might be arrested of a non-bailable offence committed by him.

Different Acts have various other restrictions while granting a bail intern making bail under one act more stringent than the other. For instance, UAPA – Unlawful Activities (Prevention) Act, 1976 covers bail under section 43D (5) and Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 covers it under Section 37. In accordance to UAPA bail cannot be granted if there are reasonable grounds to prove that the accusation against the accused is in its first appearance that is prima facie true. However, Section 37 of NDPS says that bail cannot be granted even if there are strong reasons to believe that the accused may not be guilty and is least likely to commit any offence when granted bail. This thereby makes laws relating to bail in NDPS more stringent than UAPA. Considering the harsh conditions for bail and its effects on constitutional rights the court has made speedy trials to protect the innocent people.

National Investigation Agency vs Zahoor Ahmad shah Watali is one of the case laws where there was sufficient reason to believe that the accusation on the accused was prima facie true thereby applying Sec 43D (5) of UAPA the bail was denied. Another case proving importance of Speedy trial is Union of India v. K.A Najeeb. A 3-judge bench of the Apex Court on Monday granted bail to one of the accused of the 2010 Palm Chopping Case, K.A Najeeb. He has been accused of offences under the Indian Penal Code, Explosive Substances Act, and UAPA. The court held that Section 43D (5) of UAPA will not act as a bar to the ability of Constitutional Courts to grant bail on the ground of violation of Fundamental Right to Speedy Trial envisaged under Article. 21 of the Constitution. The court also observed that the National Investigation Agency (NIA) had failed to take any step towards screening the 276 witnesses and that the accused has already spent more than five years in imprisonment. The charges themselves were framed on 27.11.2020.

The court further observed that the rigorous use of S. 43D (5) will meltdown where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Thus, the court in the exercise of its appellate jurisdiction upheld the decision of grant of bail of the Kerala High Court imposing additional conditions.

Patel Engineering Ltd. v. North Eastern Electric Power Corp Ltd.

Special Leave Petition (C) Nos. 3584-85 of 2020 

Facts of the case

A dispute arose between the petitioner (North Eastern Electric Power Corporation Ltd.) and the respondent (Patel Engineering Ltd.) regarding a works contract in three packages and each package contained a separate arbitration clause and three arbitration awards were awarded in the disputed case. The respondent, in this case, filed three applications challenging the three arbitral awards awarded under Section 34 of the Arbitration and Conciliation Act before the Additional Deputy Commissioner (Judicial). However, the applications were rejected and the three arbitral awards were upheld. The respondent then filed three appeals under Section 37 of the Act before the High Court in an arbitration appeal and the court allowed the respondent’s appeal. Aggrieved by the common judgment, the petitioner challenged the judgment by filing three SLPs and the hon’ble court dismissed the SLPs stating that the court is not inclined to interfere in the matters. After the dismissal, a review petition was filed because the high court’s decision “suffered from error apparent on the face of the record as it had not taken into consideration the amendments made by the act.”

Issues:

1. Whether setting aside three arbitral awards by the hon’ble high court was justified or not?
2. Whether the 2015 amendment which came into force on 23/10/2015 would be applicable or not?

Judgment

The Supreme court held that the award accorded suffered from vices and while granting it the sole arbitrator had taken irrelevant factors into account ignoring the crucial facts. The awards granted were dated 23/09/2016 which was after the amendment came into force so it would be applicable. The supreme court upheld the judgment of the high court and stated that the “test of patent illegality” was rightly applied.

 Conclusion

The arbitral award should consider all the terms of the contract and the views of parties into consideration. If an arbitral award is granted that no reasonable minded person could have given then it will be considered against the “public policy” of India and can be set aside by the Hon’ble court. There should not be unjust enrichment on the cost of the other party, if so the court has the right to interfere.

Pre-natal Sex Determination : An alarming surge in India

Pre-natal sex determination is the practice of determining the sex of the foetus before birth through ultrasonography. Various countries have adopted this practice, but in a few countries such as India, this practice has led to female foeticide, i.e., determining the sex of the foetus and undergoing an abortion in case the sex of the foetus turns out to be female. Now there are various stereotypical reasons which pave the ways for female foeticide, some of the reasons that are unfortunately believed and accepted by some Indians are: having a girl child is a burden as they have to pay dowry while getting her married, girl child won’t carry the family name, a girl child may bring shame to the family by eloping, etc. These beliefs and mentality of the people is the prime reason for an alarming increase of female foeticide in India.

The Government of India, to address this issue has enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act). According to section 5(1) of this Act, no person can conduct a pre-natal diagnosis without the concerned pregnant woman’s consent, and even if the diagnosis has been conducted according to section 5(2), “No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner“. Most importantly section 6 of the PNDT Act prohibits conducting pre-natal diagnostic techniques to determine the sex of a foetus. Further section 23 of this Act provides for imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees in case of violation of the provisions of the PNDT Act.

Even after all the enactments, guidelines, punishments, etc. given for determining the sex of the foetus, surveys show that female foeticide is still on the rise. In the year 2016, a global study on female infanticide by Asian Centre for Human Rights gave a report titled “Female Infanticide Worldwide: The case for action by the UN Human Rights Council”, which places India in the 4th place in having the highest female foeticide with a sex ratio of 112 males/100 females. Apart from this in the year 2020, a United Nations report stated that 4.6 lakh females were missing at birth in India each year from 2013 to 2017.

Bringing the ban of pre-natal sex determination to light, in the recent judgment of Rekha Sengar v. State of Madhya Pradesh, Justice Mohan M. Shantanagoudar, Vineet Saran and Ajay Rastogi dismissed the Special Leave Petition stating the prenatal sex determination to be a grave offence and having a serious effect on the society at large. In the present case, the accused approached the Apex Court for the grant of Bail. The petitioner was charged under certain relevant provisions of the Indian Penal Code, Medical Termination of Pregnancy Act, 1971, and under the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PC&PNDT Act). The bail was rejected by the Sessions Court as well as the High Court of Madhya Pradesh. There was the existence of a prima facie case which was the major reason for turning down the bail petition. The investigation team has seized the ultrasound machine with no registration or license, adopter and gel used in sex determination, and other medical instruments used during an abortion and sex determination from the residence of the accused, which forms the evidence for prima facie case. In the said judgment, the Coram referred to the legislative history of the PC & PNDT Act. 

The bench also mentioned it in the case of Voluntary Health Association of India v. the State of Punjab, (2013) while pronouncing the judgment. It observed, “The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish prenatal sex determination as a grave offence with serious consequences for the society as a whole.” The court while dismissing the petition stated that no leniency should be given at all in these issues and to eradicate gender discrimination and sex determination, such strict measures are very important. The bench by this judgment has put forward a step to dismiss gender inequality.