Regarding 498a trial
Shivam
(Querist) 14 March 2013
This query is : Resolved
Dear Experts,
A brief of my issue and request for your feedback
Chargesheet filed in Feb 2012 for 498a, charge of 307 dropped by IO. Charges have not been yet framed
No proceeding in the case for last one year, where around 4-5 dates fell but we took a fresh date because of my father's health issues (he is a 72 yr old cancer patient)
15th Feb 2013: First date when some proceedings happened. My lawyer filed for father's permanent exemption on health and age grounds supported by valid medical documents and test reports
Other party lawyer (private lawyer, without permission from the magistrate to assist PP) asked for a re-investigation of 307, no submission made
Today (13-03-2013) They take up 3 points , one for each acccused.
a. oppose my father's exemption plea saying the medical documents are bogus !!
b. cancellation of my brother's (co-accused)bail as he has been travelling abroad frequenctly, which is contempt of court according to them.
FACT: The bail order clearly mentioned only 2 conditions , Accused will not tamer with witness and will co-operate with the IO during investigation. There is no 3rd statement in the bail order. THEN HOW IS IT a jump of bail conditions and on what grounds are they objecting?? is it admissible??
c. cancellation of my bail as my signatures in AB and regular bail do not match. hence their contention is i must have been absconding during AB and someone else might have represented me.
FACT: i had undergone major surgery in my right hand wherein 2 rods were inserted just 15 days before the CS was filed , hence while signing on regular bail papers, i used the left hand !
Please reply point wise as to how to counter their points. Also can we file any counter case like defamation or any other case for them calling valid documents as BOGUS !
Also, what surprised me was, my case was slated at no 96 out of 98 listings in the day. Court starts at 11, the judge sat around 12
My lawyer was a bitlate, he reached around 12:45, in the meanwhile itself their private lawyer took up the case and after submitting her pleas took next date . Is is fair ??
Suggestions would be highly appreciated , next date is in a fortnight
Devajyoti Barman
(Expert) 14 March 2013
1. The exemption in favour of your father would be allowed.
2.This is not a ground for cancellation of bail. Their prayer is baseless.
3. You can ask for test of your signature.
In any event rest assured bail once granted would not be canceled on those frivolous grounds.
Raj Kumar Makkad
(Expert) 14 March 2013
Nothing to add more in the given advice.
Shivam
(Querist) 14 March 2013
Thanks Gentlemen
Shivam
(Querist) 18 March 2013
Rajkumar Sir, Deva Sir and Prabhakar Sir... sorry to be coming back on this issue once again.
Just one small last query
As i stated earlier, our anticipatory bail order from sessions court DID NOT MENTION any condition other than (1) not to tamper with evidence (2)To co-operate with the IO in inquiry
Hence we were sure that no violation has been done of bail conditions in going abroad for short term as 2 days to 1 week without informing the trial court and specially when it has not collided with any date.
BUT, reading CrPC 438(2) , Maharashtra Amendment it states restriction from going abroad as 1 of the condition !!
http://www.vakilno1.com/bareacts/CrPc/s438.htm
So my query to you gentlemen is , even if it was not specifically mentioned in the bail condition, should it have been an implied condition !! and who was suppose to tell this to us when the court did not mention it specifically in the order
I know my return query on same issue might be irritating, but please understand my anxiety.... Thanks a lot
prabhakar singh
(Expert) 18 March 2013
Law presumes that it is known to all,it's ignorance is no excuse.So it would be supposed to be an implied condition.None was supposed to tell this to you when the court did not mention it specifically in the order,you were to know on your own.
Shivam
(Querist) 18 March 2013
So what is the remedy Sir :(
and did you read the amendment, the link of which i sent for reference
because i am a layman, i have no clue whether it is one of the conditions that may be put by court or it is a compulsory condition !
prabhakar singh
(Expert) 18 March 2013
At then I did not read but now I have.
It reads as "and if the court passes any order granting anticipatory bail, such order shall include inter area the following conditions, namely:-
(i) that the applicant shall make himself available for interrogation by a police officer as and when required;
(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the court or to any police officer;
(iii) That the applicant shall not leave India without the previous permission of the court: and
(iv) Such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section."
So(i)to (iii) are must conditions to be imposed in any AB order should the court
decides to grant AB.
But here after reading it I find that duty to lay these condition in order was on the court by the statute which court did not discharge FOR WHICH ACCUSED CAN NOT BE HELD RESPONSIBLE THAT HE HAS FLOUTED THE BAIL ORDER.
The provision not so worded that in every AB order these all would be deemed condition whether mentioned or not but it directs only court to impose these conditions.
In my opinion a failure by court in not doing so may be branded as "improper exercise of jurisdiction" by the court.
Let us see what others have to say?
Shivam
(Querist) 18 March 2013
Thanks a Lot Prabhakar Sir, thodee jaan mei jaan aayee :) , other experts please give your interpretation on the same
R.K Nanda
(Expert) 18 March 2013
no more to add.
