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Bail u/s 437 vs abp u/s 438 in a 420 ipc case at magistrates

Querist : Anonymous (Querist) 06 October 2021 This query is : Resolved 
In October 2021 I have been charged by Magistrate in a Section 420 offence on a private complainant to a magistrate by younger brother

Mother has previously in Sept 20 ( a year ago ) filed a case U/S 420 IPC against the same younger brother where i am the witness. The younger brother availed Anticipatory bail from sessions and now case is in Trial

This counter Case by younger brother where i am accused is also u/s 420 ipc where cognizance has ben taken and Summons issued by Magistrate with date of appearance set at 30 th October

Should i appear on Summons date AND on the day apply for Bail U/S 437 Crpc
Should i apply for Anticipatory Bail at sessions judge now.

I dont have any criminal antecedents and obviously i am being falsely accused in a frivolous case is my stand

The local lawyers keep saying to apply for anticipatory bail 438 as opposed to bail under 437 saying the magistrate WILL take me into custody when i appear ion summons date even though i have no criminal antecedents

I am explaining that it is a summons in a sec 420 IPC case not a warrant

But they keep saying even though magistrates in this magistrate triable 420 ipc case can grant bail U/S 437, they choose to take people into custody so better stay safe by going for Anticipatory bail.

what should i do? Should i take the chance or should i go for ABP

Please advise
Shubham Bhardwaj (Expert) 16 October 2021
Dear Sir,

Since the date is on 30.10.2021, you have a lot of time. In such a case, if the complaint doe not disclose any crime on the face of it, you must apply for quashing under section 482 Cr PC. You must talk to a good lawyer regarding maintainability of quashing petition. In quashing you can always pray for interim relief.

However if your lawyer, after going through the file, suggests that quashing is not maintainable then go for anticipatory bail. Although the Magistrate has issued summons, however, Section 420 case is a serious matter as it entails an imprisonment up to 7 years. It is better to be prepared before hand so as to avoid last minute mess up.

Shubham Bhardwaj (Advocate)
District & Session Court, Chandigarh
Punjab & Haryana High Court, at Chandigarh

Disclaimer:- Opinion is only for guidance.

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