Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Chinese Chef (Integration Architect)     23 July 2012

498a filed & need to seek regular bail

Dear experts,

After two unsuccessful attempts at Police stations in two different cities, my out laws have finally filed a case against me u/s 498a & 406 via a private complaint in court. The summons will be shortly issued for six persons who have been prosecuted for dowry harassment. We'll be seeking regular bails on the date of our first appearance.

      

What I want to know is: -

- What are the requirements to seek regular bail from the court? How is this different from anticipatory bail?

- What's the concept of guarantor(s) and surities? Would six different guarantors be needed for six bails? Won't 1 guarantor suffice?

- What's the possibility of bail be denied in this case?

 

Eagerly looking forward to your inputs.

 

Thanks!



Learning

 2 Replies

Sunil Dutt Bhardwaj (Advocate)     24 July 2012

Dear Sir,

Regular Bail can be applied Under sec. 437 of Crpc an Anticipatory Bail can be applied Under Section 438

Provisions are as under-

 

437. When bail may be taken in case of non-bailable offence.

 

1[(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but-

 

(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

 

(ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of 2[a cognizable offence punishable with imprisonment for three years or more but not less than seven years]:

 

Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

 

Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

 

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the court:]

 

3[Provided also that no person shall, if the offence allege to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.]

 

(2) If it appears to such officer or court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, 4[the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided.

 

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) 5[the Court shall impose the conditions,-

 

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

 

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

 

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,

 

and may also impose, in the interests of justice, such other conditions as it considers necessary.]

 

(4) An officer or a court releasing any person on bail under sub-section (1), or sub- section (2), shall record in writing his or its 6[reasons or special reasons] for so doing.

 

(5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody.

 

(6) If, any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for - taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

 

(7) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

 

Cr PC (Amendment) Act, 2005 (Notes on Clauses)

 

Section 437 has been amended to provide that if a person commits a cognizable and non-bailable offence and he has previously been convicted on two or more occasions of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years, he shall not be released except in the circumstances specified in the provision.

 

It has further been provided that if an accused appears before the Court while in judicial custody and prays for bail, or a prayer for bail is made on his behalf, the Court shall grant bail only after giving an opportunity of hearing to the prosecution, if the offence allege to have been committed by the accused is punishable with death, imprisonment for life or imprisonment for not less than 7 years.

 

Under sub-section (3) the Court has got the discretion to impose certain conditions for the grant of bail. Under section 441 (2), where any condition is imposed for the release of a person on bail, the bond shall contain that condition also. In order to make the provision stringent and to see that the person on bail does not interfere or intimidate witness, sub-section (3) has been amended to specify certain conditions, which are mandatory.

 

COMMENTS

 

(i) In non-bailable cases in which the person is not guilty of an offence punishable with death or imprisonment for life, the court will exercise its discretion in favour of granting bail subject to sub-section (3) of section 437 if it deems necessary to act under it; Anil Sharma v. State of Himachal Pradesh, (1997) 3 Crimes 135 (HP).

 

(ii) Unless exceptional circumstances are brought to the notice of the court which may defeat the proper investigation and fair trial, the court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life; Anil Sharma v. State of Himachal Pradesh, (1997) 3 Crimes 135 (HP).

 

(iii) It has been held that since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general; Mansab Ali v. Irsan, AIR 2003 SC 707.

 

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

 

1. Subs. by Act 63 of 1980. Sec. 5, for sub-section (1) (w.e.f. 23-9-1980).

 

2. Subs. by Act 25 of 2005, sec. 37, for "a non-bailable and cognizable offence".

 

3. Ins. by Act 25 of 2005, sec. 37.

 

4. Subs. by Act 63 of 1980. Sec. 5. for certain words (w.e.f 23-9-1980) .

 

5. Subs. by Act 25 of 2005, sec. 37, for "the Court may impose any condition which the Court considers necessary-

 

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

 

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

 

(c) otherwise in the interests of justice."

 

6. Subs. by Act 63 of 1980. Sec. 5, for "reasons" (w.e.f. 23-9-1980).

 

 

438. Direction for grant of bail to person apprehending arrest.

 

1[(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

 

(i) the nature and gravity of the accusation;

 

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

 

(iii) the possibility of the applicant to flee from justice; and

 

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrersted,

 

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

 

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

 

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

 

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]

 

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -

 

(i) a condition that the person shall make himself available for interrogation by a police officer and when required;

 

(ii) a condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,

 

(iii) a condition that the person shall not leave India without the previous permission of the court;

 

(iv) Such other condition as may be imposed under sub-section (3) ofsection 437, as if the bail were granted -under that section.

 

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).

 

Cr PC (Amendment) Act, 2005 (Notes on Clauses)

 

Section 438 has been amended to the effect that (i) the power to grant anticipatory bail should be exercised by the Court of Session or High Court after taking into consideration certain circumstances; (ii) if the Court does not reject the application for the grant of anticipatory bail, and makes an interim order of bail, it should, forthwith give notice to the Public Prosecutor and Superintendent of Police and the question of bail would be re-examined in the light of the respective contentions of the parties; and (iii) the presence of the person seeking anticipatory bail in the Court should be made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.

 

STATE AMENDMENTS

 

Maharashtra:

 

For section 438, the following section shall be substituted, namely.

 

"438 Direction for grant of bail to person apprehending arrest.-(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors.

 

(i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;

 

(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a court previously undergone imprisonment for a term in respect of any cognizable offence;

 

(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and

 

(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice,

 

either reject the application forth with or issue an interim order for the grant of anticipatory bail:

 

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

 

(2) Where the High Court or, as the case may be, the Court of Session, consider it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the court shall indicate therein the date, on which the application for grant of, anticipatory bail shall be finally heard for passing an order thereon, as the court may deem fit; 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.

 

(3) Where the court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of police. With a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the court.

 

(4) The presence of the applicant seeking anticipatory bail shall be obligatory, at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice.

 

(5) On the date indicated in the interim order under sub-section (2), the court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under subsection (1).

 

[Vide Maharashtra Act 24 of 1993. sec. 2 (w.e.f. 28-7-1993)].

 

Orissa:

 

In sub-section (1) of section 438, the following proviso shall be added, namely.

 

"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case".

 

[Vide Orissa Act 11 of 1988, sec. 2 (w.e.f 28-6-1988)].

 

Uttar Pradesh:

 

Section 438 shall be omitted.

 

[Vide U.P. Act -16 of 1976, Sec. 9 (w.e.f. 28-1 1-1976)].

 

West Bengal:

 

In section 438, for sub-section (1), the following sub-sections shall be substituted, namely:-

 

"(1) (a) When any person has reason to believe that he may be arrested on an accusation of' having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail:

 

Provided that the mere fact that a person has applied to the High Court or the Court of' Session for a direction under this section shall not, in the absence of any order by that court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a police station.

 

(b) The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application:

 

Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days' notice to present its case.

 

(c) If any person is arrested and detained in custody by an officer-in-charge of a police station before the disposal of the application of such person for a direction under this subsection, the release of such person on bail by a court having jurisdiction, pending such disposal shall be subject to the provisions of section 437.

 

(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any court, tribunal or other authority".

[ Vide W.B. Act 25 of 1990].

 

COMMENTS

 

(i) Section 438 makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate; Sennasi v. State of Tamil Nadu, (1997) 3 Crimes 112 (Mad).

 

(ii) The grant of bail under section 438 (1) by the High Court or the Court of Session is dependent on the merits of a case and not the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant; Sennasi v. State of Tamil Nadu, (1997) 3 Crimes 112 (Mad).

 

(iii) Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is to be disposed of or even a few day thereafter to enable the accusesd to move the higher court if he so desires; Sennasi v. State of Tamil Nadu, (1997) 3 Crimes 112 (Mad).

 

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

 

1. Subs. by Act 25 of 2005, sec. 38, for “(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail”.

 

 

More for every person how many peoples are required as surity is at the discrition of the court normally it remains one for one, but may be two for one or more .

 

if you want any more clarification Kindly contact at 09215342051 ( Adv Sunil Dutt Bhardwaj) 

Nitish Banka (lawyer)     24 March 2018

Posted by: nitish788  Categories: Uncategorized 
 

 

Conditional Anticipatory Bail in 498a

 

Once the Fir U/s. 498a/406 is registered it is better option to take anticipatory bail in the offences as read in the FIR. I have already discussed the chances of anticipatory bail U/s. 498a and 406 in my previous article of chances of getting anticipatory bail in 498a But when you move for anticipatory bail in the court the court may impose certain conditions like depositing a demand draft of certain amount in the name of wife and the complainant as a part of maintenance. Now these conditions such are ultravires to the provisions of section 125 CrPC and these type of orders can be challenged in higher courts. When a specific provision is there for maintenance of wife and child such conditional anticipatory bail in 498a is against the law.

Supportive Judgments

  1. In Narinder Kaur V/s State(NCT of Delhi) 2007(141)DLT 761

Complainant father in law released on anticipatory bail and petitioner, mother in law granted bail on condition of depositing Rs. 50000 by way of demand draft in the name of complainant complainant husband already paid Rs. in addition to deposit of Rs.1.25 lakh and she is disinterested in receiving Rs, 50000/- Both parties earning well and in dispute in ither fora condition of petitioner to pay complainant Rs. 50000/- set aside.

Image result for anticipatory bail

2.  Munish Bhasin Vs. State 2009(2) RCR (Crl) 247

Provisions of 438 discussed

From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under sub- section (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including (i) a condition that a person shall make himself available for interrogation by police officer as and when required, (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, (iii) a condition that the person 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 were granted under that section. Sub-section (3) of Section 437, inter alia, provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

The Court may also impose, in the interests of justice, such other conditions as it considers necessary.

Conditions which can be imposed

It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub- section (3) of Section 437 of the Code. Normally, conditions can be imposed

(i) to secure the presence of the accused before the investigating officer or before the Court,

(ii) to prevent him from fleeing the course of justice,

(iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or

(iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code.

While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code.

When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438of the Code.

The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.

By Adv. Nitish Banka

Practicing Advocate at Supreme court of India

nitish@lexspeak.in

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