Friday, September 22, 2023

Taking a Lenient View

Courts are granting bail to some accused on the pretext of good behaviour or their being first-time offenders and continued incarceration being detrimental to their well being. Is this a good move?

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A Patiala House Court has granted bail to Aumkareshwar Thakur, a BCA student from Indore, who is accused of creating an app on GitHub where photos of Muslim women were posted alongside objectionable comments insinuating they were up for auction. The bail was granted by Chief Metropolitan Magistrate Pankaj Sharma. The accused was in judicial custody since January 9, 2022.

The Court said that a charge sheet had already been filed against the accused, although the report of the Forensic Science Laboratory (FSL) was awaited. An FIR was registered against the accused under Sections 153A (promoting enmity on grounds of religion, etc), 153B (imputations prejudicial to national integration), 295A (insulting religious beliefs), 354D (stalking), 509 (word, gesture or act intended to insult the modesty of a woman) and 500 (criminal defamation) of the IPC and Section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act.

The Court said that merely because replies from different intermediaries and FSL were awaited was not a sufficient reason to deny bail to the accused as he was not in a position to influence the FSL result or replies. Furthermore, the judge said the necessity for continued incarceration was not made out in the backdrop of filing of the charge sheet.

The Court also held that the accused was a first-time offender and continued incarceration would be detrimental to his overall well being. The accused has roots in the community and was not a flight risk. The trial would take considerable time and no fruitful purpose would be served by keeping him detained further, it said.

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Sahil Bhalaik and Tushar Giri, lawyers of Aumkareshwar Thakur, told the Court that he was “a child prodigy in the field of coding” and at “such a tender age, the applicant gained goodwill and recognition in the highly dynamic and competitive field of coding”. They argued that he had wilfully cooperated with the police investigation and handed over his bank account details, passwords to electronic devices and accounts to them.

The lawyers said that considering the nature of offence as disclosed in the FIR, it appears to be internet related. Resultantly, the evidence would be digital in nature and considering the seizure of electronic gadgets of the applicant, there was no possibility of him tampering with the evidence which has been gathered and is in the custody of the Delhi Police.

The Court granted bail to Thakur on his furnishing a personal bond/ surety of Rs 50,000 subject to the conditions that he not contact the victim or tamper with evidence and share his location with the investigating officer. It also stated that the accused shall not leave the country and appear before the Court on every date and not commit a similar offense while on bail.

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Additionally, bail has also been granted to 21-year-old Neeraj Bishnoi who is alleged to be the conspirator and creator of the Bulli Bai App on GitHub. The Court noted that Bishnoi was languishing in judicial custody since January 6, 2022, and that investigation in the case was complete.

“As per the facts, the forensic examination of laptop and mobile phone of the accused has been completed and evidence has been collected by the IO. The grounds for opposing the bail application taken by the prosecution is that investigation is ongoing, the said plea is vague and not sufficient to deny bail in the absence of cogent grounds. The examination of other witnesses relating to the crime and collection of any other evidence can continue without the accused being in custody. The apprehension of prosecution regarding tampering of evidence and committing similar offences can be addressed by resorting to strict conditions of bail”

-the Court said.

Both Bishnoi and Thakur were denied bail by a city court earlier. The prosecution, on the basis of the investigation conducted so far, stated that Thakur was a member of Trad Mahasabha and created the App “Sulli Deals” on GitHub. He and other persons had then posted pictures of various Muslim women for online auction.

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Bishnoi is a resident of Assam’s Jorhat area and is pursuing B. Tech from Vellore Institute of Technology, Bhopal. The Bulli Bai App is similar to Sulli Deals, which also resulted in controversy last year by offering “sullies”, a derogatory word trolls use for Muslim women. GitHub was also the host for that app.

The case came to the fore after many prominent Muslim women found themselves up for auction on the app hosted by GitHub. Many found that their doctored images were put up for “auction”. The women included prominent journalists, social activists and lawyers.

The leniency of courts in some cases was also seen last year when a court in Kasganj district (UP) convicted BJP MLA Devendra Singh Rajput and his associate Kaushal in connection with a criminal case in 2010. However, it ordered their release on probation for a year and directed them to furnish a bond of Rs 1 lakh each within 10 days from the date of judgment before the district probation officer. The two got out on bail on grounds of “good behaviour and maintaining peace”.

Singh is an MLA from the Kasganj Sadar seat. The duo were booked under IPC sections 323 (voluntarily causing hurt), 325 (voluntarily causing grievous hurt), 504 (intentional insult with intent to provoke breach of peace) and 506 (criminal intimidation).

“The court held Devendra Singh and Kaushal guilty, stating that the prosecution had established and proved its case. Later, considering the facts and circumstances of the case, the court gave the convicts the benefit of provisions of the Probation of Offender Act. They were released on probation”

-SS Raghuvanshi, government counsel, Kasganj, said.

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In 2012, a Pune Cantonment court convicted a State Reserve Police Force jawan’s sister-in-law, nephew and two others for assaulting his wife and throwing her out of their flat along with his son and elderly father while he was away on duty in Kolhapur in 2006. However, judicial magistrate (first class) Vinay Muglikar did not sentence them and ordered their release on a good behaviour bond for a year while considering the careers of the convicts. The court ordered the accused to jointly pay a compensation of Rs 10,000 to constable Anil Mane’s wife Vimal. The court found the accused guilty under Sections 448 (punishment for house trespass), 341 (punishment for wrongful restraint), 427 (mischief causing damage to the amount of fifty rupees) and 34 (common intention) of the IPC.

The Court observed: “The dispute is on account of an immovable property which may be resolved in future considering the close relations between the parties. If the accused are sentenced then there is very less probability of the same being ultimately ending amicably. Therefore, the offenders must be given the opportunity to reform.”

All’s well that ends well?

—By Adarsh Kumar and India Legal Bureau

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