Delhi High Court denies anticipatory bail to man booked for sexually harassing minor on Instagram

 

 It is settled law that the custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS’) [State v.

Anil Sharma : (1997) 7 SCC 187]. Granting anticipatory bail to

the applicant would undoubtedly impede further investigation.

An order of bail cannot be granted in a routine manner so as to

allow the applicant to use the same as a shield. {Para 15 }

16. This court has perused the case diary and gone through the

statements of the victim, mother of the victim and co-accused -

Sameer. There are materials in the case diary implicating the

applicant in the allegations which the police are investigating.

The allegations against the applicant are of a grave and serious

nature, involving the exploitation and sexual abuse of a minor

girl. The applicant is accused of coercing the victim into

engaging in sexually explicit acts over video calls, recording the

same without her consent, and using these recordings to

blackmail her repeatedly. Such acts not only violate the personal

dignity and privacy of the victim but also constitute serious

offences under the BNS and the POCSO Act.

17. The allegations against the applicant points towards the

exploitation of a child by coercing and blackmailing her for

pornographic purposes. The alleged recording and sharing of

explicit material involving the minor victim is a grave offence.

19. The present case underscores the increasing misuse of

social media and technology to exploit and intimidate vulnerable

individuals, particularly minors. In light of the allegations,

perusal of the statement of the victim and co-accused Sameer,

this Court finds that granting pre-arrest bail would set an

inappropriate precedent and undermine the societal interest in

safeguarding children from such reprehensible acts.

20. The actions of the applicant exemplify the disturbing trend

of exploiting the anonymity and reach of social media platforms

to perpetrate sexual crimes against minors. This Court cannot

ignore the broader societal implications of such acts and the

urgent need to send a strong message against the misuse of

technology.

21. Considering that the present case involves electronic

gadgets and electronic evidence, the task of the Investigating

Agency seems arduous and they need to be given a fair play in

the joints to investigate the matter in the manner they deem

appropriate. The matter requires thorough investigation which

ought not to be curtailed by passing an order granting pre-arrest

bail.

22. The relief of pre-arrest bail is a legal safeguard intended to protect individuals from potential misuse of power of arrest. It plays a crucial tool in preventing harassment and unjust detention of innocent persons. However, the court must carefully balance the individual’s right to liberty with the interests of justice. While the presumption of innocence and the right to liberty are fundamental principles of law, they must be considered in conjunction with the gravity of the offence, its societal impact, and the need for a comprehensive and unobstructed investigation.

23. Considering the material on record, it cannot be held at this stage that the investigation is being carried out with the intention to injure or humiliate the applicant and does not indicate false implication of the applicant. The nature and gravity of allegations are serious. Specific allegations have been made regarding the applicant’s alleged involvement in the commission of the offence.

24. The material presented by the prosecution establishes a prima facie involvement of the applicant. Granting pre-arrest bail to the applicant would undoubtedly impede further investigation.

25. The present application is accordingly dismissed.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  BAIL APPLN. 4440/2024

SAIFUL KHAN  Vs STATE & ANR. 

CORAM:

HON'BLE MR. JUSTICE AMIT MAHAJAN

AMIT MAHAJAN, J. (Oral).

Date of Decision: 03rd December, 2024

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Whether the court can quash prosecution against accused for an offence U/S 306 of IPC if no material is available him in chargesheet regarding that offence?

In the present case, at the outset, we must note that the

Applicant, a Judicial Officer, was never involved in the pending

lis, as the suit property was purchased by his brother

exclusively and only he was party to the litigation. There is no

reason for the deceased to have implicated the Applicant, as he

was not connected with the dispute at all. The material in the

charge-sheet in form of statements implicating the Applicant,

are too far fetched and definitely fall short of any instigation/

incitement and a bare reference to his presence in Miraj in the

month of May, where he is alleged to have threatened the

deceased and asked him to vacate the subject property is not

sufficient to attract instigation/incitement, as the offence is

registered on 24/06/2016. In any case, even it is not the

allegation of the prosecution that the Applicant abetted the

suicide by instigating or inciting the deceased in any manner,

as abetment involves a mental process of instigating a person

or intentionally aiding a person in doing of a thing and without

a positive act on part of the Applicant to instigate or aid in

commission of suicide by the deceased, he cannot be convicted

for an offence punishable under Section 306 of IPC.

In order to attract the offence under Section 306, clear

mens rea to commit the offence has to be established, as it

requires active/direct act, leading the deceased to commit

suicide left with no other option, but in the present case, the

material in the charge-sheet falls short of proving the

ingredients of Section 306 and, hence, in our view, by

exercising the inherent power conferred under Section 482,

the purpose of it being to prevent the abuse of process or to

secure the ends of justice, we deem it appropriate to safeguard

the interest of the Applicant.

In absence of we exercising the power, the Applicant will

have to unnecessarily face the rigmarole of trial, which

ultimately would result in acquittal, as no material in the

charge-sheet collected by the prosecution attract the

ingredients of Section 306 of IPC and we would be failing in

discharge of our duty, if we do not step in and save the

Applicant from undergoing the long drawn process of trial, as

the material in the charge-sheet through close scrutiny, do not

in any manner, establish the ingredients of abetment of suicide

under Section 306 of IPC against him.

For the reasons recorded above, we are satisfied that

human liberty, which is the most cherished constitutional

value, must be protected by us, by exercising the inherent

power conferred under Section 482 of the Criminal Procedure

Code. {Para 20}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.959 OF 2016

WITH

INTERIM APPLICATION NO.2060 OF 2024

Nasirhusen Mohiddin Jamadar Vs  The State of Maharashtra & Anr. 

CORAM: BHARATI DANGRE & MANJUSHA DESHPANDE, JJ.

 DATED : 18 th  NOVEMBER, 2024

ORDER (PER BHARATI DANGRE, J.) :-

Citation: 2024:BHC-AS:45637-DB.

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What is distinction between Maintainability of a proceeding And Jurisdiction of a Court to entertain any proceeding?

Having heard the learned Advocates for the respective parties and upon considering the record, it is evident that the Trial Court conflated the concepts of jurisdiction and maintainability. The terms "jurisdiction" and "maintainability" are often mistakenly

used interchangeably, yet they hold distinct legal connotations. A

precise understanding of the distinction is crucial for judicial

adjudication. Jurisdiction refers to the power and authority of a

court or tribunal to adjudicate a dispute and render a binding

decision. It is derived from the Latin words "juris" (law) and "dico" (I speak), which collectively signify "speaking by the law." The concept extends to the legal power to entertain, inquire into facts, apply the law, and issue enforceable judgments. Jurisdiction can be classified into three distinct categories:

Subject Matter Jurisdiction – The court’s power to deal with

a specific type of case based on statutory provisions.

Territorial Jurisdiction – The geographic area within which a

court can exercise its authority.

Pecuniary Jurisdiction – The monetary limits of a court’s

power to hear a case. {Para 11}

12. Jurisdiction derives its authority from statutes, and its

absence renders the court incompetent to decide the matter.

Jurisdiction does not depend on the correctness of the decision; a

court may decide rightly or wrongly, yet its jurisdiction remains

unaffected. It is foundational to the legitimacy of judicial

proceedings, as it embodies the legal capacity to entertain a suit

and adjudicate on the merits.

13. Maintainability pertains to whether a legal proceeding is

competent to be entertained, factoring in procedural and

substantive requirements. Maintainability relates to whether the

suit is procedurally valid and not inherently barred. A case

dismissed for lack of maintainability does not necessarily negate

the existence of jurisdiction, as it may only reflect procedural

infirmities. Unlike jurisdiction, maintainability addresses

preliminary objections arising from procedural non-compliance or statutory bars rather than the inherent authority of the court.

Examples of factors affecting maintainability include:

(i) Bar under Statutes: Prohibitions on the initiation of

proceedings due to legislative provisions (e.g., res judicata

under Section 11 of CPC).

(ii) Limitation Period: Filing of proceedings after the

prescribed period under the Limitation Act, 1963.

(iii) Locus Standi: The legal standing of the petitioner to

institute proceedings.

14. Jurisdiction derives its authority from statutes conferring

power on the court. Maintainability arises from procedural and

statutory compliance requirements for initiating proceedings. Lack of jurisdiction results in the nullity of proceedings, as the court inherently lacks authority to adjudicate. Non-compliance with maintainability bars leads to dismissal without deciding the merits of the case but does not affect the court’s inherent power.

15. Thus, while jurisdiction focuses on the court’s authority,

maintainability examines the legal validity of the proceedings.

19.  The jurisdiction of the Civil Judge, Senior Division, to

entertain such an application is derived under Section 2(c) of the

Act which defines court as a Civil Court having jurisdiction to

decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit.

20. The Trial Court improperly conflated the provisions of

Section 20 with maintainability. Jurisdiction must be determined

based on the pleadings in the application. The petitioner’s

averments regarding the arbitration agreement and the alleged

consent by respondent No. 1 to appoint the arbitrator establish a

prima facie case for jurisdiction under the 1940 Act. The issue of

whether respondent No. 1 consented to the arbitrator’s

appointment or the draft award is a matter for substantive

adjudication and does not affect the Court’s jurisdiction to

entertain the application.

21. The Trial Court, while concluding that it lacked jurisdiction,

proceeded to consider the maintainability of the petitioner’s claim under Section 20 of the Arbitration Act, 1940. This consideration was beyond the scope of the Trial Court’s authority, as a finding of lack of jurisdiction precludes further deliberation on the merits or maintainability of the case.

22. In view of the above analysis, the Trial Court’s order reflects

a fundamental misapplication of legal principles.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2315 OF 2015

Deepak Manaklal Katariay  V/s.  Ahsok Motilal Katariya

CORAM : AMIT BORKAR, J.

DATED : NOVEMBER 29, 2024

Citation: 2024:BHC-AS:46238

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Important provisions of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999

National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “autism” means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behaviour;

(b) “Board” means Board of trustees constituted under Section 3;

(c) “cerebral palsy” means a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, perinatal or infant period of development;

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