WHAT ARE PRECONDITIONS TO GRANT BAIL?

WHAT ARE THE PRE-CONDITIONS TO GRANT BAIL?

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail: 

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; 

(ii) nature and gravity of the accusation; 

(iii) severity of the punishment in the event of conviction; 

(iv) danger of the accused absconding or fleeing, if released on bail; 

(v) character, behaviour, means, position and standing of the accused; 

(vi) likelihood of the offence being repeated; 

(vii) reasonable apprehension of the witnesses being influenced; 

and 

(viii) danger, of course, of justice being thwarted by grant of bail. 

WHAT IS THE OBJECT OF BAIL?

WHAT IS THE OBJECT OF BAIL?

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:- 

"The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." 

ABATEMENT

Abatement set aside CPC

It is a settled position of law that a suit or an appeal abates automatically if the legal representatives, particularly of the sole plaintiff or appellant, are not brought on record within the stipulated period. 

Rule 1 of Order 22, CPC mandates that the death of a defendant or a plaintiff shall not cause the suit to abate if the right to sue survives. In other words, in the event of death of a party, where the right to sue does not survive, the suit shall abate and come to an end. In the event the right to sue survives, the concerned party is expected to take steps in accordance with provisions of this Order. 

Order 22 Rule 3, CPC therefore, prescribes that where the plaintiff dies and the right to sue has survived, then an application could be filed to bring the legal representatives of the deceased plaintiff/appellant on record within the time specified (90 days). 

Once the proceedings have abated, the suit essentially has to come to an end, except when the abatement is set aside and the legal representatives are ordered to be brought on record by the Court of Competent jurisdiction in terms of Order 22 Rule 9 (3), CPC. 

Order 22 Rule 9 (3) of the CPC contemplates that provisions of Section 5 of the Indian Limitation Act, 1963 shall apply to an application filed under Sub Rule 2 of Rule 9 of Order 22, CPC. In other words, an application for setting aside the abatement has to be treated at par and the principles enunciated for condonation of delay under Section 5 of the Limitation Act are to apply para materia. 

Section 3 of the Limitation Act requires that suits or proceedings instituted after the prescribed period of limitation shall be dismissed. However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows 'sufficient cause' for not preferring the application within the prescribed time. 

The expression 'sufficient cause' commonly appears in the provisions of Order 22 Rule 9 (2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided on similar grounds. The decision of such an application has to be guided by similar precepts. It will be appropriate for us to trace the law enunciated by this Court while referring, both the provisions of Order 22 Rule 9, CPC and Section 5 of the Limitation Act. 

In the case of Union of India v. Ram Charan, [AIR 1964 SC 215], a three Judge Bench of this Court was concerned with an application filed under Order 22 Rule 9, CPC for bringing the legal representatives of the deceased on record beyond the prescribed period of limitation. The Court expressed the view that mere allegations about belated knowledge of death of the opposite party would not be sufficient. The Court applied the principle of 'reasonable time' even to such situations. While stating that the Court was not to invoke its inherent powers under Section 151, C.P.C. it expressed the view that the provisions of Order 22 Rule 9, CPC should be applied. 

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CHEQUE DISHONOR CASE

CHEQUE DISHONOUR CASE:

In Jugesh Sehgal v. Shamsher Singh Gogi, (2009) 14 SCC 683, Hon'ble Supreme Court has noted:

" It is manifest that to constitute an offence under section 138 of the Act, the following ingredients are required to be fulfilled:

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said CC No. 60282/2016 Neeraj Kumar v Asgar Ali Mondal Page No. 5 of 11 notice;

 Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under section 138 of the Act."

HE WHI SEEKS EQUITY MUST DO EQUITY

Whether a petitioner after withdrawing a writ petition filed by him in the HC under Art.226 without the permission to institute a fresh petition, can file a fresh writ petition in the HC under that Article? 

The principle underlying Rule 1 of Order 23 of CPC should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. While withdrawal of writ petition without permission may not bar other remedies like a suit or a petition under Art.32 of the Constitution, since withdrawal does not amount to res judicata. The writ petition filed, challenging the very same impugned order, without disclosing the earlier writ, was a suppression of fact and such litigation cannot be allowed to continue (1996 II MLJ 283). 

The SC in 1997 (2) SCC 534 held that the second writ petition is not maintainable as the principle of constructive res judicata could apply. In Halsbury’s Law of England the law is stated “He who seeks equity must do equity.” 

The SC in 2008 (1) SCC 560 held that a writ remedy is an equitable one; a person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of process of law.

FUNDAMENTAL RIGHT TO FORM AN ASSOCIATION

As per Art.19(1)(c) under Chapter III of the Fundamental rights of the Constitution, right to form an association or a Union in a co-operative society, is one of the fundamental rights of the employees.

Sec.22 of the Trade Union Act 1926 provides that outsiders not more than 50 per cent can be elected as officer bearers in every trade union, in addition to the persons actually engaged or employed in an industry with which the Trade Union is connected.

ABJ ORDER 38 RULE 5 OF CPC

Or 38 R5 Attachment before judgment

(1)At any stage the Court is satisfied by affidavit that the defendant with intent to obstruct or delay the execution of decree that may be passed – is about to dispose of his property; or is about to remove any part of his property from the local limits of the Court, - the Court may direct the defendant either to furnish security or to appear and show cause why he should not furnish security.

(2)The plaintiff shall specify the property required to be attached.

(3)The Court may also direct the conditional attachment;

(4)If an order is made without complying (1), such attachment is void.

Mere allegation that the defendant is selling off his properties is not sufficient. It must be stated as to the source of information should also be disclosed and the grounds of such belief should be stated.

Govindarao Mahadik v Devi Sahai

Padam Sen v State of UP

Manohar Singh v Hind Kumar Kohli

Premraj v Md Maneck Gazi

Nataraja v Bangaru

G.Kuppathi Mudaliar v Murugesan

Pappammal v Chidambaram

T.Srinivasan v V.Srinivasan

The sine qua non for an order of ABJ namely, the malafide intention and the conduct of the defendant in disposing of his property with the dishonest intention of defeating or delaying the decree is conspicuously absent. No ABJ should be ordered.

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