Anticipatory bail
Navi
(Querist) 13 April 2013
This query is : Resolved
Sir
We got FIR registered against boy in a dowry case. His bail from session got rejected. Now in High court, he says its dowry less marriage and girls cannot afford to give so much dowry.We presented marriage Cds in court showing exchange of articles. So judge ordered girl to go and search his house with IO and find her articles & documents.
When IO & girl went, they recovered 20% of items. Next day High court in bail application mentioned in his orders the recovered item details & to be recovered items and directed Commissioner of Income Tax to verify and file a report.
Now question is that whether high court could have directed Income Tax for investigation while police investigation is still on.
Should we go to Supreme Court against these orders. Please suggest
Advocate M.Bhadra
(Expert) 13 April 2013
SC Explains Anticipatory Bail – 2009
his judgment is a must read for anyone fearing an arrest in India for any reason. Most of the times, the Indian lawyers don’t know jack about what an anticipatory bail is. One such luminary is a lawyer from the state of Andhra Pradesh, a professed 498A fighter, who famously remarked that a 498a case is an automatic arrest warrant !!
In 498A cases, the moment you get an anticipatory bail, the police are eliminated as a factor and you’ve pretty much won the most difficult part of this fight.
Here is one important point to be kept in mind with regard to anticipatory bail:
The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
Here is the coverage from The Hindu
The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.
Navi
(Querist) 13 April 2013
Should we go to Supreme Court against these orders. Please suggest
prabhakar singh
(Expert) 13 April 2013
Going or not going to supreme court is your option but in my considered opinion High Court did not act beyond it's jurisdiction ordering Commissioner of Income Tax to verify and file a report.
Devajyoti Barman
(Expert) 13 April 2013
Yes, go to supreme court against such order.
The High Court should have disposed of bail application first.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 April 2013
I have also the opinion that by going to SC the case will be spoiled.
Though FIR is registered but no arrests are made. This is due very recent directive by SC that all efforts should be explored in such matters prior to coercive actions.
R.K Nanda
(Expert) 13 April 2013
agree with experts.
ajay sethi
(Expert) 13 April 2013
dont go to supreme court . inorder to verify veracity of claims and counter claims HC has directed income tax authorities to furnish report
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 April 2013
Plese go though the 2013 SC DIRECTIVE in cases like yours-
We, therefore, feel that though offence punishable
under Section 498-A of the IPC is not compoundable, in
appropriate cases if the parties are willing and if it appears
to the criminal court that there exist elements of settlement,
it should direct the parties to explore the possibility of
settlement through mediation. This is, obviously, not to
dilute the rigour, efficacy and purport of Section 498-A of the
IPC, but to locate cases where the matrimonial dispute can
be nipped in bud in an equitable manner. The judges, with
their expertise, must ensure that this exercise does not lead
to the erring spouse using mediation process to get out of
clutches of the law. During mediation, the parties can either
decide to part company on mutually agreed terms or they
may decide to patch up and stay together. In either case for
the settlement to come through, the complaint will have to
be quashed. In that event, they can approach the High
Court and get the cIf however they chose not to settle, they can proceed with the complaint.
In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes.
We would, however, like to clarify that reduction of burden of cases on the courts will, however, be
merely an incidental benefit and not the reason for sending
the parties for mediation. We recognize ‘mediation’ as an
effective method of alternative dispute resolution in
matrimonial matters.
B K Raghavendra Rao
(Expert) 13 April 2013
You are not affected by the order of the High Court giving directions to the Income Tax Department for verification and report. Do you mean to say you should not be verified or investigated by the Income Tax authorities. It is incidental.
Your grouse is about anticipatory bail. The High Court may decide your bail application after a report from the investigation officer. You are advised not to approach SC
R.K Nanda
(Expert) 13 April 2013
follow experts advice.
M V Gupta
(Expert) 15 April 2013
No use of approaching the SC. If at all u want to go to SC, for what relief?
