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CTest (Farmer)     17 August 2010

Next Step after rejection of Anticipatory Bail by HC

Case Brief History

------------------------

Person C has registered a complaint against A1, A2, A3 U/S -406/420/506/34. Police has issued an arrest warrant against the person A1, A2, A3.

 

To avoid the police arrest A1, A2, A3 prayed for the Anticipatory bail before High Court. But due to the negligence of their lawyer High Court rejected the Anticipatory bail application.

 

 

A1, A2, A3 are fearing to surrender as there is a life threat for them by the complaint C.

 

C is an influential person and having the muscle power in the locality/police jurisdiction where the FIR has been registered.

 

Couple of years back C has kidnapped A1 for a ransom and there is a case pending against C before a session court for the same. At that time A2 and A3 was the prime witness for that kidnapping case against C.

 

A2 and A3 are brothers and came from a lower middle class family of teacher. Their aged parents are totally depending on them for daily bread and butter. His father age 80 years and Mother age 73 years are heart patient. His father has undergone the heart surgery couple of times.

 

A2 and A3 has does not have any link/contact with the person C, who complained against them.

 

 

PLEASE SUGGEST/ADVICE WHAT WOULD BE THE NEXT COURSE OF ACTION SHOULD TAKEN  BY A1 , A2 , A3 TO GET THE JUSTICE OR TO GET SOME RELIEF FROM POLICE as well the THE PERSON C.



Learning

 7 Replies

N.K.Assumi (Advocate)     18 August 2010

Surrendered before the Magistrate an move the lower Court under section 437 CrPc for regular bail as the sections are triable by the Magistrate First Class, with details that you have posted. The Magistrate has ample discreation to grant bail. All the best.

sreerangan (advocate)     18 August 2010

Mere dismissal of an anticipatory bail petition does not bar another anticipatory bail petition before the same High Court, but you must mention about the earlier petition and the order.  Further, you can give anyother material or facts for better appreciation. You can say all the reasons you have now said in the querry and also about the bad antecedents of the complainant./informant to show his integrity.

pls. find a good lawyer and file it again.

Sameer Sharma (Advocate)     18 August 2010

All bail applications depend upon the gravity of crime and presentation of Advocate. Anticipatory bail is granted only in special cases.

The petitioner can file a Special Leave Petition in the Supreme Court contending that the matters should be examined from the constitutional angle bearing in mind the scope of Articles 20(2) and 21 of the Constitution of India. it was contended on behalf of the petitioner that though an accused person could be arrested it may not be appropriate to detain him in custody in every case and that when there is presumption of innocence in his favor until the charge against him is established, it would not at all be consistent with the philosophy of the Constitution to subject such a person to interrogation by application of psychological or ambient pressures much less physical torture. It was also contended that in law an accused person could be arrested and if arrested, he is entitled to bail unless detention is needed in public interest.

In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides ; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh, , which though, was a case under the old S. 498 which corresponds to the present S. 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is an necessary for the survival of the society as it is for the egoistic purpose of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the Court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail".

In paragraph 21 of the same judgment, the Supreme Court has pointed out as follows:

"To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case". We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise and judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. One ought not to make a bugbear of the power to grant anticipatory bail."

You can add following points in ur application for grant of anticipatory bail:

The petitioner shall make any attempt to contact any of the prosecution witnesses, directly or through any person in any manner, including telephonic contacts, try to tamper with the evidence or influence any witnesses in this case,

The petitioner shall not have leave limits of local jurisdiction, without prior permission of the concerned Court

That the petitioner shall co-operate in early completion of the investigation and trial and shall attend whenever required by the investigating agency for that purpose.

The petitioner shall intimate place of his residence to the respondents and shall not change the same without prior intimation to the respondent about his intention to shift elsewhere

The petitioner is permitted to deposit cash amount what ever court found fit.

(Put additional points which u have mentioned above in ur petition about the respondent, I m sure it will work.)

SANJAY GUPTA (Advocate)     18 August 2010

you can not blame a lawyer for the rejection of the bail, moreover you can move an application before apex court or simply a bail petition before the lower court.

CTest (Farmer)     18 August 2010

Dear Sir ,

 

I am really thankful to all of you for  your valuable suggestions.

 

As of now it is not known that what is the exact reason for rejection of the Anticipatory  Bail from HC . The lawyer who has applied the Anticipatory bail on behalf of the petitioners’ before the High Court is reluctant to share the information regarding the rejection of the AB by HC.

 

The fact is that the lawyer has been appointed by a Middle man who assured the petitioner’s (A2 and A3) father (who is 80 years age) that his sons will be released within 4 days and taken away the money for the same. It was really unfortunate that after taking the money, the Middle Man did not share the information like (Who is the Lawyer , What is the CRM NO , when would be the date scheduled for the hearings of Anticipatory Bail in High Court  etc.) Then all those information’s have been collected from the High Court cause list and then when the Lawyer has been contacted he said that the Anticipatory Bail has been rejected, but did not share the reason of the rejection.

 

Following may be the consequences once A1, A2 and A3 will surrender at lower Court

  1. It is also to be noted that A1, A2 and A3 are belongs to one state and the person C who complained is belongs to a different state. The person C is an influential person with muscle power in his locality/police jurisdiction where the FIR has been registered. So if A1, A2 and A3 would go for surrender, they have to surrender before the Court/Police Station which falls under the state, where the Person C belongs to.
  2. So there is a highly chance that the person C (who has complained) would physically assault A1, A2 and A3. He has threatened the same to the petitioners’ parents over phone.
  3. It is to be noted again that A2 and A3 are falsely framed by the Person C because when the Person C had kidnapped A1 , at that time A2 and A3 has witnessed it put the complain against C and there after the Person C has threatened A2 and A3 to face the dire consequences.
  4. Now as a common man one thing coming to my mind why the petitioners will be punished (if they surrender/detained by police) unnecessarily and why they will put their life and their whole family in danger for a false charge , which they are not related at all  the charge specified by the person C .

 

Can the  petitioners  will be allowed to apply the Anticipatory Bail again before the same High Court. , where the Anticipatory Bail has rejected once.  If so what would be the process to apply the AB again before the same High Court.

 

I will appreciate if any body will guide us to prepare   a draft copy of best possible way to re-apply the AB in High Court.

 

Incase the Anticipatory Bail rejected again by the same High Court , what would be the next course of action for the petitioners. What would be the other legal option they can avail at that point of time.

 

If we go to Supreme Court how much percentage of chance to get the Anticipatory Bail approved/accepted by honorable    Supreme Court. 

 

If again it is rejected before Supreme Court , what would be the next course of action for the petitioners.

CTest (Farmer)     21 August 2010

Dear Sir/Madam ,

 

I am eagerly waiting for all of your valuable suggestion/guidance  on the above scenario . Please help us to come out from this situation.

 

I would appreciate your timely suggestion on this regards

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     21 August 2010

This is a theoritical querry only , since there are can not be anticipartory bail application directly to HC.


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