Opposing anticipatory bail
498A-filed
(Querist) 21 September 2014
This query is : Resolved
Hi,
Court has issued Bailable arrest warrants for my 498 A wife in a non bailable case of cheating and cheque bounce. Since she is working, & I have given her office address in the complaint petition, she will probably be arrested in next few days from her office and will be released on bail at the PS itself after furnishing surety as per BW conditions.
I am planning to oppose her AB efforts. I want experts to guide me whether a person who is arrested and released on bail is eligible for AB. Can I oppose her bail on this single technical ground or I should prepare other grounds also. Should I approach the PP with all the documentary evidence against her so that he could oppose her bail effectively.
Nadeem Qureshi
(Expert) 21 September 2014
Dear Querist
when the person who is arrest and released on bail by PS or court then there is no need fro AB.
state the detail facts for best advise
498A-filed
(Querist) 21 September 2014
I filed a private complaint case against my wife and the court took cognizance under section 420 IPC & 138 NI. I had documentary evidence of her liability towards me and I was also able to convince the court that she had fraud in her mind at the time of issuance of cheque and she never intended to honor it. The court found that their is enough prima facie evidence to take cognizance u/s 420 IPC along with 138 NI act.
The summons were issued and due to her non appearance arrest warrant have been issued through SP office of her state.
Once she is arrested and released on bail, she will have no option but to move for AB. But technically she should not be allowed AB. And that is how I plan to oppose her AB. She cannot risk to surrender before the magistrate because due to non bailable section, she may be sent to JC.
Please advice whether I am on the right track.
Devajyoti Barman
(Expert) 21 September 2014
tHIS TYpE OF WARRANTS ARE COMMONLY CALLED ' PRODUCTION WARRANT' AND IS ALLOWED AS A MATTER OF COURSE.
No matter how much you put objection bail is going to be allowed.
Raj Kumar Makkad
(Expert) 21 September 2014
There is no question of bail and then seeking anticipatory bail. The offence is bailable and thus if she directly appears before the concerned court, she may obtain regular bail and no question arises either of her bail or anticipatory bail as you told.
Raj Kumar Makkad
(Expert) 21 September 2014
If you have score equally with your wife, do confine to your complaint only rather of such technical issues.
498A-filed
(Querist) 22 September 2014
Sir 420 IPC carries a jail term of upto 7 years and it is a non bailable section. So if she surrenders before the magistrate, there are all probabilities that she will be sent to JC. Specially in my state Bihar, getting regular bail in any non bailable offence is very difficult.
My query is that if she is arrested before she applies for AB, will she be eligible for AB or not?
Dr J C Vashista
(Expert) 22 September 2014
Are you sure to name yourself as "498A-filed"?
498A-filed
(Querist) 22 September 2014
Sir it is a very interesting question that you have asked. Are you doubting that 498 A has not been filed against me? or I have misunderstood your question.
My wife left home after lot of planning with all the money we had and filed all kind of false matrimonial cases to force me into an MCD. But I refused to get blackmailed and have decided to contest the cases on merits. I filed criminal cases on her because she left documentary evidence of her crime.
Devajyoti Barman
(Expert) 22 September 2014
This is repeated query which is already replied.
498A-filed
(Querist) 22 September 2014
Sir my query is still unresolved.
Nadeem Qureshi
(Expert) 22 September 2014
Dear Querist
when the court issue Warrant against her and in the event of her arrest she got bail from police, then there is no need for AB.
the main offence is Dishonour of Cheque and which is Bailable offence the other offence.
State detail facts, I think your query is futuristic and if she filed AB then you will opposed....................................
so if she apply the AB then you have right to opposed the AB with your ground as you mentioned in your complaint.
498A-filed
(Querist) 22 September 2014
Sir there is nothing as such as main offence or side offence. The cheque was just an instrument which she used to deceive me and the cognizance has been taken u/s 420 IPC which is a non bailable offence. The police has no power to give bail for the offence because it is not a police investigation that is going on but an warrant has been issued to secure her presence in the court. The bail is given just to give her few days to appear in the court within a specified time and seek bail from court which will be at the discretion of the magistrate to grant or to deny.
Any logical person will move for AB in a non bailable case particularly if there is documentary evidence against that person. And my technical ground to oppose the A. bail will be that she has already been arrested. And my query is pertaining to this only. Whether she is eligible to AB if she is arrested and released on bail by the police?
Yes it is a futuristic query because there is no point in asking a past query which has already been occurred. It is not an imaginary query but a realistic situation for which I need advice to plan my next move.
I have no interest in repeating my query. My each and every query is different from one other. Although if not read properly, they may sound similar. Until and unless my query is resolved or answered, I have no option but to wait for the experts to answer my query.
Raj Kumar Makkad
(Expert) 22 September 2014
It seems that there is some different procedural law in Bihar to deal with such issues to which the author is repeatedly insisting which seems unknown to the experts.
As the given issue is nothing but a direction of the trial magistrate to the local police to arrest the accused and produce before it so there is no occasion before the police to interperate the order of the court in its own way and release the accused on temporary bail so that she may apply for regular/AB bail.
498A-filed
(Querist) 23 September 2014
I agree with Mr raj kumar makkad that there is no occasion for the police to interpret the order of the trial magistrate but to arrest the accused person and produce him/her before the court or release him on furnishing surety if the warrant is a bailable one.
And my query was related to this only. Whether an accused who has been arrested and released after furnishing of surety as per the bail conditions is eligible for AB or not?
498A-filed
(Querist) 23 September 2014
Please note that it is an inter state matter & BW was issued to secure her presence for trial because she failed to appear after summons due to fear of JC.
T. Kalaiselvan, Advocate
(Expert) 29 September 2014
Once she has been produced before court on the basis of arrest warrant and she getting enlarged on bail by furnishing sureties, there is no need for an AB once again. I think you are not understanding the basic concept, consult your lawyer for further details if you think Bihar is a separate country and different law is being followed there.
498A-filed
(Querist) 30 September 2014
I have spoken to her PS.
Since she lives in a different state, the police will arrest her and take surety at the PS itself and not produce her before the court. She will be asked to appear before the court within a specified period of time.
I have requested her PS to forward the surety papers immediately to the concerned trial court, as per their standard procedure and as per law.
Now when she appears before the court, she will have to pray for bail from the trial court which will be on the discretion of the magistrate and hence she will risk herself going to JC.
The surety at the police station is not a bail for the case but just a bail for bringing her to the court.
To avoid JC, she will apply for AB and I have planned to oppose it on technical as well as on other grounds also.
498A-filed
(Querist) 30 September 2014
I am worried that I may be wrong.
